TERMS AND CONDITIONS
The terms and conditions set out below will apply to credit extended by Clean Beauty Market Pty Ltd ACN 620 355 688 (CBM) (Terms & Conditions) and the signed Credit Application will be evidence of the Customer’s agreement to these Terms & Conditions.
CBM means Clean Beauty Market Pty Ltd ACN 620 355 688 its successors and assigns or any person acting on behalf of and with the authority of CBM;
Application means the application for credit completed and signed by the Customer and accepted by CBM including the terms of any guarantee and attached to these Terms & Conditions;
CCA means the Competition and Consumer Act 2010 (Cth) as amended;
Customer means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any Application or other form as provided by CBM to the Customer;
Guarantor means that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis as set out in the Application;
Goods mean all Goods supplied by CBM to the Customer and are as described on the invoices, receipt, quotation, order or any other forms as provided by CBM to the Customer;
parties means the Customer, CBM or the Guarantor and party means any of them;
PPSA means the Personal Property Securities Act 2009 (Cth) as amended;
PPSR means the Personal Property Securities Register; and
Price means the Price payable for the Goods as agreed between CBM and the Customer in accordance with clause 3 of the Terms & Conditions.
The Customer acknowledges that the supply of Goods on credit will not take effect until the Customer has completed the Application with CBM and it has been approved with a credit limit established for the account.
In the event that the supply of Goods request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, CBM reserves the right to refuse delivery.
Any instructions received by CBM from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by CBM will constitute acceptance of the Terms & Conditions.
Where more than one (1) Customer has entered into these Terms & Conditions, each Customer will be jointly and severally liable for all payments of the Price and any other monies payable pursuant to the Terms & Conditions.
Upon acceptance of these Terms & Conditions by the Customer the Terms & Conditions are binding and can only be amended with the written consent of CBM or as set out in these Terms & Conditions.
The Customer will give CBM not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer will be liable for any loss incurred by CBM as a result of the Customer’s failure to comply with this clause.
Goods are supplied by CBM only on the Terms & Conditions to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these Terms & Conditions.
Any order received by CBM from the Customer must be in writing and specify the following:
the date of the order;
particulars of the Goods ordered;
the preferred place for delivery;
the Price of the Goods; and
any other information which CBM may reasonably request the Customer to provide from time to time.
CBM may decline any order received from the Customer in writing within three (3) business days of receipt of the order at CBM’s sole discretion. Any order not declined pursuant to this clause shall be deemed accepted by CBM.
Any order placed by the Customer cannot be varied or withdrawn without prior written consent from CBM.
Price and Payment
At CBM’s sole discretion the Price will be either:
as indicated on invoices provided by CBM to the Customer in respect of Goods supplied; or
CBM’s current price at the date of delivery of the Goods according to CBM’s current Price list.
CBM will provide a copy of the price list if requested by the Customer. All prices published in the price list are subject to alteration or withdrawal without notice.
CBM may request payment by the Customer of a non-refundable deposit prior to the supply or delivery of the Goods.
CBM may, in its sole discretion, require payment of the Price by the Customer either prior to or on delivery of the Goods.
Time for payment for the Goods will be of the essence and will be stated on the invoice for the supply of the Goods by CBM to the Customer. If no time is stated then payment of an invoice will be due thirty (30) days following the date of invoice.
Payment of the Price must be made by cash, bank cheque, credit card, direct credit, or by any other method as agreed to between the Customer and CBM. Any payment of the Price by credit card will incur a surcharge of up to three per cent (3%) of the Price.
Unless otherwise stated, GST and other taxes and duties that may be applicable will be added to the Price except when they are expressly included in the Price.
Delivery of Goods
At CBM’s sole discretion delivery of the Goods will take place when:
the Customer takes possession of the Goods at CBM’s address; or
the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by CBM or CBM’s nominated carrier); or
the Customer’s nominated carrier takes possession of the Goods in which event the carrier will be deemed to be the Customer’s agent.
At CBM’s sole discretion the costs of delivery are:
in addition to the Price; or
included in the Price; or
for the Customer’s account,
and CBM will advise the Customer of the costs of delivery.
The Customer will make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged, CBM will be entitled to charge a reasonable fee for redelivery.
Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of these Terms & Conditions.
CBM may, in its sole discretion, deliver the Goods by separate instalments. Each separate instalment will be invoiced by CBM and paid by the Customer in accordance with these Terms & Conditions.
The Customer will take delivery of the Goods tendered notwithstanding that the quantity so delivered will be either greater or lesser than the quantity purchased provided that:
such discrepancy in quantity will not exceed five per cent (5%); and
the Price will be adjusted pro rata to the discrepancy.
Where the Customer expressly requests CBM to either:
leave Goods outside CBM’s nominated business premises for collection; or
to deliver the Goods to an unattended location,
such Goods will be left at the nominated location at the Customer’s sole risk
The failure of CBM to deliver will not entitle either party to treat these Terms & Conditions as repudiated.
CBM will not be liable for any loss or damage whatsoever due to failure by CBM to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of CBM.
CBM and the Customer agree that ownership of the Goods will not pass until:
the Customer has paid CBM all amounts owing for the particular Goods; and
the Customer has met all other obligations due by the Customer to CBM in respect of all contracts between CBM and the Customer.
CBM’s title or rights in the Goods will continue until any form of payment by a Customer has been received, honoured, cleared or acknowledged by CBM.
The parties acknowledge and agree as follows:
where practicable the Goods will be kept separate and identifiable until CBM has received payment and all other obligations of the Customer are met;
until such time as ownership of the Goods passes from CBM to the Customer, CBM may give notice in writing to the Customer to return the Goods or any of them to CBM. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods will cease;
CBM will have the right of stopping the Goods in transit whether or not delivery has been made;
if the Customer fails to return the Goods to CBM then CBM or CBM’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods;
the Customer is only a bailee of the Goods and until such time as CBM has received payment in full for the Goods then the Customer will hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to CBM for the Goods, on trust for CBM;
the Customer will not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of CBM;
CBM may issue proceedings to recover the Price of the Goods sold notwithstanding that title to the Goods may not have passed to the Customer; and
until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that CBM will be the owner of the end products.
Notwithstanding clause 6, all risk for the Goods passes to the Customer on delivery of the Goods in accordance with these Terms & Conditions.
If any of the Goods are damaged or destroyed following delivery but prior to title passing to the Customer, CBM is entitled to receive all insurance proceeds payable for the Goods. The Customer will be liable for any claim processing fee.
The production of these Terms & Conditions by CBM is sufficient evidence of CBM’s rights to receive the insurance proceeds without the need for any person dealing with CBM to make further enquiries.
Subject to CBM’s statutory obligations under the CCA the following provisions apply:
CBM’s liability for a breach of a condition or warranty implied by Pt 3–2 Div 1 of the CCA is limited to:
in the case of goods, any one (1) or more of the following:
the replacement of the Goods or the supply of equivalent goods;
the repair of the Goods;
the payment of the cost of replacing the Goods or of acquiring equivalent goods;
the payment of the cost of having the Goods repaired; or
in the case of services:
the supplying of the services again; or
the payment of the cost of having the services supplied again.
Subject to CBM’s statutory obligations under the CCA and except as provided in these Terms & Conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded.
CBM is not liable to the Customer for any physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of and Good or arising out of our negligence or in any way whatsoever.
CBM’s liability under s274 of the CCA is expressly limited to a liability to pay the Customer an amount equal to:
(i)the cost of replacing the Goods;
(ii)the cost of obtaining equivalent Goods; or
(iii)the cost of having the Goods repaired,
whichever is the lowest amount.
In this clause:
financing statement has the meaning given to it by the PPSA;
financing change statement has the meaning given to it by the PPSA;
security agreement means the security agreement under the PPSA created between the Customer and CBM by these Terms & Conditions; and
security interest has the meaning given to it by the PPSA.
Upon assenting to these Terms & Conditions in writing the Customer acknowledges and agrees that these Terms & Conditions:
constitute a security agreement for the purposes of the PPSA; and
create a security interest in:
all Goods previously supplied by CBM to the Customer (if any);
all Goods that will be supplied in the future by CBM to the Customer.
The Customer undertakes to:
promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which CBM may reasonably require to:
register a financing statement or financing change statement in relation to a security interest on the PPSR;
register any other document required to be registered by the PPSA; or
correct a defect in a statement referred to in clause 220.127.116.11or clause 18.104.22.168;
indemnify, and upon demand reimburse, CBM for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any Goods charged thereby;
not register a financing change statement in respect of a security interest without the prior written consent of CBM;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of CBM; and
immediately advise CBM of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
CBM and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms & Conditions.
The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by CBM, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
The Customer will unconditionally ratify any actions taken by CBM under clause 9.3 , clause 9.4 and clause 9.5.
The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify CBM of any alleged defect, shortage in quantity, damage or failure to comply with the description or quotation.
The Customer shall afford CBM an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way.
If the Customer shall fail to comply with this clause the Goods shall be presumed to be free from any defect or damage.
For defective Goods, which CBM has agreed in writing that the Customer is entitled to reject, the CBM’s liability is limited to either (at CBM’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the CCA or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods (as set out in clause 8).
Returns of a Good will only be accepted provided that:
the Customer has complied with the Terms & Conditions; and
CBM has agreed in writing to accept the return of the Goods; and
the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
CBM will not be liable for defects or the deterioration of Goods which, in the opinion of CBM, have been caused by careless or improper handling, negligence, misuse or non-adherence to storage and handling requirements.
CBM will not accept the return of Goods for credit.
Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
Interest on overdue invoices will accrue daily from the date when payment becomes due, until the date of payment, at a rate of fifteen percent (15%) per annum (and at CBM’s sole discretion such interest will compound monthly) after as well as before any judgment.
In the event that the Customer’s payment is dishonoured for any reason, the Customer will be liable for any dishonour fees incurred by CBM.
If the Customer defaults in payment of any invoice when due, the Customer will indemnify CBM from and against all costs and disbursements incurred by CBM in pursuing the debt including legal costs on a solicitor and own Customer basis and CBM’s collection agency costs.
Without prejudice to any other remedies CBM may have, if at any time the Customer is in breach of any obligation (including those relating to payment) CBM may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the Terms & Conditions. CBM will not be liable to the Customer for any loss or damage the Customer suffers because CBM has exercised its rights under this clause.
Without prejudice to CBM’s other remedies at law, CBM will be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to CBM will, whether or not due for payment, become immediately payable in the event that:
any money payable by the Customer to CBM becomes overdue, or in CBM’s opinion, the Customer will be unable to meet its payments as they fall due; or
the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
CBM may cancel any order to which these Terms & Conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice CBM will repay to the Customer any sums paid in respect of the Price. CBM will not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Customer cancels delivery of Goods, the Customer will be liable for any loss incurred by CBM (including, but not limited to, any loss of profits) up to the time of cancellation.
Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
Privacy Act 1988
The Customer and/or the Guarantors acknowledge and agree that:
the Customer and the Guarantors have familiarised themselves with the terms of these policies.
any provision of these Terms & Conditions will be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired;
any provisions of these Terms & Conditions are inconsistent with the PPSA, the PPSA will prevail to the extent of that inconsistency.
These Terms & Conditions and any contract to which they apply will be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
To the extent permitted by law:
CBM will be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by CBM of these Terms & Conditions;
In the event of any breach of this contract by CBM the remedies of the Customer will be limited to damages which under no circumstances will exceed the Price of the Goods.
The Customer will not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by CBM nor to withhold payment of any invoice because part of that invoice is in dispute.
CBM may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
The Customer agrees that CBM may review these Terms & Conditions at any time. If, following any such review, there is to be any change to these Terms & Conditions, then that change will take effect from the date on which CBM notifies the Customer of such change. The Customer will be under no obligation to accept such changes except where CBM supplies further Goods to the Customer and the Customer accepts such Goods.
Neither party will be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
The failure by CBM to enforce any provision of these Terms & Conditions will not be treated as a waiver of that provision, nor will it affect CBM’s right to subsequently enforce that provision.