Please read the Terms of Trade below. These Terms govern any supply of our goods to you if your Application for a business account is approved. You will be asked to confirm your acceptance on the final page before submitting this application.
IMPORTANT NOTES
- Business accounts: Available only to approved retail businesses operating from a commercial retail premises in the aquarium, pet or reptile industry. We do not supply goods to consumers, hobbyists or businesses operating solely from residential premises.
- Acceptance: These Terms govern the supply of our goods to you and is a binding contract. You accept these Terms by signing an Application for business account or placing an order with us.
- Price and delivery: Prices, freight, delivery and GST are payable as set out clauses 4,5,6 and 7 of these Terms. Goods are subject to availability, delivery times are estimates, and risk in the goods passes to you on delivery.
- Payment and default: New customers must prepay their first 3 orders in advance of dispatch. Credit customers must pay within 30 days of date of invoice unless otherwise agreed. Overdue amounts may attract interest and result in suspending the supply of further goods, cancellation of any other current orders and you paying for our recovery costs.
- Title and PPSA: We retain title to the goods until all amounts owing by you are paid. You grant us a security interest in the goods and their proceeds, which we may register on the Personal Property Securities Register.
- Returns and liability: Returns and warranty claims are subject to clause 13. To the extent permitted by law, liability is limited under clause 12 and neither party is liable for indirect or consequential loss.
- Changes to these Terms: We may update these Terms by giving one month’s written notice. Continuing to order our goods after that period means you accept the updated Terms.
1Definitions
1.1Claim means any action, claim, suit or demand of any nature whatsoever.
1.2goods means and includes as the context requires, goods and/or services supplied by us to you.
1.3Price List means the list of prices for our goods as published on our Website from time to time.
1.4GST has the same meaning give to it under the GST Act.
1.5GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.6Loss means any costs, losses, penalties, damages, liabilities and expenses and in relation to a Claim, includes amounts payable on a Claim (whether or not the Claim is successful) and legal costs and expenses on a solicitor and own client basis.
1.7PPSA means the Personal Property Securities Act (2009) (Cth), any regulations made under it and any amendments made to other legislation by them.
1.8we/us/our means Aqua Premium Pty Ltd ACN 137 356 471 and any successor referred to in clause 15 .
1.9you/your means the person/entity to whom we supply goods and includes your agents and permitted assigns.
1.10Terms means these Terms of Trade.
1.11Website means https://aquapremium.com.au/.
2Trade Accounts
2.1Trade accounts are available only to bona fide retail businesses operating from commercial retail premises in the aquarium, pet or reptile industry, as assessed by us in our sole discretion. We do not supply goods to hobbyists, consumers or businesses operating solely from residential premises.
2.2All applications for a trade account are subject to our approval in our absolute discretion, and we may accept, reject, suspend or cancel any application or account where you do not meet or cease to meet our eligibility criteria.
2.3We will notify you of the outcome of your application.
3Binding Terms and Conditions
3.1Unless otherwise specifically agreed in writing by us, these Terms are incorporated into every order for the supply of our goods to you.
3.2Any provision of a particular order by you which is inconsistent with or additional to these Terms is excluded from contracts between you and us.
3.3We may update these Terms from time to time by giving you at least one month’s written notice. The updated Terms will apply from the end of that notice period, and you will be taken to have accepted them if you place an order for our goods after that time. Otherwise, these Terms may only be varied by written agreement signed by you and us.
3.4Any order received by us from you for the supply of goods, constitutes your acceptance of these Terms.
4Orders
4.1Orders may only be placed by telephone, in writing, or through your approved customer account via our Website online shop.
4.2We reserve the right to accept or reject orders placed by you in whole or in part. We will communicate any non-acceptance of an order to you as soon as practicable after receipt of the order.
4.3We may refuse to accept or process any order where any amount owing by you to us is overdue or outstanding, and you must pay all outstanding amounts in full before placing any further orders.
4.4Orders may only be cancelled by you on terms that indemnify us for all Claims and Loss which we may incur in connection with such cancellation.
5Price
5.1Unless otherwise agreed in writing, the price for the Goods is the price specified in our Price List current on the date your order is placed.
5.2Subject to clause 5.1, we may at any time change our Price List.
5.3Unless otherwise stated, the price of our goods does not include freight or delivery charges.
5.4We will tell you the applicable freight and delivery charge before we process your order or before the goods are dispatched for delivery.
5.5Freight and delivery charges are charged on a cost-recovery basis only. We do not apply a mark-up to those charges.
5.6Any discount agreed by us is conditional on payment being made by the due date. If payment is not made by the due date, the discount no longer applies, and you must pay the undiscounted price.
6GST
6.1Capitalised words and phrases used in this clause 6 have the same meaning as in the GST Act.
6.2Unless otherwise stated in writing, all prices and other consideration for any supply made under or in connection with these Terms does not include GST.
6.3If a supply made under or in connection with these Terms is a taxable supply upon which the supplier is required to pay GST, the recipient must pay to the supplier an additional amount equal to the amount of GST payable by the supplier in connection with that taxable supply.
6.4The additional amount is payable at the same time and in the same manner as the first part of consideration for the supply to which the additional amount relates. However, the additional amount need not be paid until the supplier provides a tax invoice to the recipient.
6.5If a party is entitled to be reimbursed or indemnified under or in connection with this agreement, the amount to be reimbursed or indemnified does not include any amount attributable to GST for which the party is entitled to an Input Tax Credit.
7Delivery
7.1Delivery of our goods to you occurs when actually delivered by us to your nominated delivery address as specified in your order, regardless of whether you accept delivery.
7.2The supply of our goods is subject to availability. We may cancel an order if we determine that we will be unable to deliver the goods to you within a reasonable time or we may deliver your order in instalments and you must pay an amount for that instalment as notified by us in our invoice. Each separate delivery constitutes a separate contact.
7.3If we cancel an order in accordance with these Terms, we will promptly refund you for any money you have paid in respect of that order, and you will have no further Claim against us.
7.4You will have no Claim against us if there is a delay in delivery of the goods.
8Payment
8.1Unless otherwise agreed to in writing, new customers must pay for their first 3 orders in full before we dispatch the goods.
8.2Credit terms will only be granted if:
8.2.1you submit a completed application for business account in a form acceptable to us; and
8.2.2you provide security acceptable to us, including a director’s guarantee; and
8.2.3we approve your application for business account in writing.
8.3If we grant you credit terms, you must pay for each invoice in full within 30 days after the invoice date, unless we notify you in writing that different payment terms apply.
8.4For the first 8 months after we grant you credit terms, you must pay for each invoiced order in full before we will be required to accept or dispatch a further order for our goods.
8.5After the period referred to in clause 8.4, we may accept more than one order for goods by you at a time, provided that no amount owing by you is overdue.
8.6We may vary, withdraw or suspend any agreed credit terms at any time in our absolute discretion. That may include requiring you to pay for goods in full prior to dispatch if in our reasonable opinion your credit worthiness becomes unsatisfactory.
8.7We may charge you interest on all overdue payments calculated at the rate of 8% per annum from the due date for payment until the date that payment is actually made (both dates inclusive).
8.8If you default in any payment or if you commit any act of bankruptcy, appoint an administrator or commit an act which entitles a third party to make an application to wind up you or appoint a receiver or receiver and manager to you or any of your assets or if you pass a resolution to wind up or enter into any arrangement or compromise with any of your creditors (Events of Default), then:
8.8.1the due date for payment of all moneys owing and outstanding to us, irrespective of whether the due date as per the invoice has passed, will accelerate and become immediately due and payable;
8.8.2we may invoice you for the value of any goods supplied and other out of pocket expenses incurred, but not yet invoiced, which amounts will be immediately due and payable upon issue of the invoice;
8.8.3we may cancel or suspend any unfilled orders, suspend the supply of further goods and cancel any rebate, discount or allowance due or payable by you as at the date of the Event of Default.
8.9You must pay us in full for the goods delivered without any set-off, even if:
8.9.1there was a delay in delivery of the goods;
8.9.2you dispute the quality, quantity or condition of the goods delivered.
8.10All payments must be made in Australian dollars.
8.11You must pay to and indemnify us against all Claims and Loss suffered or incurred by us (including legal costs and expenses) in connection with:
8.11.1the recovery of any monies due and payable but unpaid by you; and
8.11.2the exercise or attempted exercise by us of any power conferred on us by these Terms.
9Risk
9.1The risk of loss or damage to the goods passes to you on delivery.
10Retention of Title
10.1Property in the goods does not pass to you but remains with us until such time as full payment is made by you for the goods and there are no other amounts owing to us by you. In the meantime, you take custody of the goods and hold the goods on trust and as a fiduciary bailee for us.
10.2Where you do not make payment in respect of specific goods, payment will be treated as having been made first in respect of goods which have passed out of your possession, and then in respect of whatever goods are still in your possession, as we elect.
10.3Until the goods have been paid for in full:
10.3.1you must store the goods in such manner as to show clearly that they are our property;
10.3.2you may sell the goods in the ordinary course of your business, but only as our trustee and fiduciary bailee. Any right to bind us to any liability to a third party by contract or otherwise is expressly negated;
10.3.3you must not sell, assign, charge or otherwise encumber or grant any interest over any obligations which any third party may owe to you as a result of the re-sale of the goods, other than in favour of us.
10.4You irrevocably authorise us at any time to enter any premises:
10.4.1upon which the goods are stored to enable us to inspect the goods and/or exercise the rights in clause 10.5; and
10.4.2upon which your records relating to the goods are held to inspect and copy them.
10.5If you default in any payment of an amount due to us or an Event of Default occurs, we may without notice and without prejudice to any other rights and remedies, enter upon any of your premises and recover and/or re-sell the goods or any part of them and do all things necessary in order to take possession of the goods.
10.6If you sell the goods, you in your capacity as trustee and fiduciary bailee for us will:
10.6.1hold the proceeds of sale in a separate bank account on trust for us and not mix any other funds with those proceeds of sale; and
10.6.2pay to us from those proceeds of sale, the amount which is owed by you to us at the time you receive those proceeds of sale.
10.7If you breach clause 10.6 and mix other monies with the proceeds of sale being held on trust, then you will continue to hold on trust and as a fiduciary bailee for us, that part of the monies as they relate to the goods supplied. That part will be deemed to be equal in dollar terms to the amount which is owed by you to us at the time you receive the proceeds of sale.
10.8If:
10.8.1you use the goods in some manufacturing or processing process of your own or of some third party; and
10.8.2the product resulting from the manufacturing or processing process is sold by you,
then you will hold on trust and as a fiduciary bailee, such part of the proceeds of sale as they relate to the goods supplied by us. Such part shall be deemed to be equal in dollar terms to the amount which is owed by you to us at the time you receive such proceeds of sale.
10.9We may commence a Claim against you if the goods are not paid for by their due date for payment, even though property in the goods has not passed to you.
11Personal Property Securities Act
11.1You agree and acknowledge that:
11.1.1capitalised words and phrases used in this clause 10 have the same meaning as in the PPSA;
11.1.2these Terms constitute a security agreement for the purposes of the PPSA, and that this Security Interest will continue until all of your debts and obligations under these Terms are discharged in full.
11.1.3clause 10 creates a Security Interest, which attaches as a Purchase Money Security Interest (PMSI) under the PPSA, in all goods supplied by us to you under these Terms, and in all products into which the goods are incorporated, processed or comingled;
11.1.4this Security Interest applies to all Proceeds of such goods (including any Accounts); and
11.1.5the Collateral is all goods supplied by us to you from time to time and includes any Accounts in respect of that part of the Proceeds of the Collateral which will be held on trust by you for us as set out in clause 10.
11.2You irrevocably authorise us and our agents and employees to effect any registration or give any notification, in connection with the Security Interest created under these Terms. You must provide all information required by us in order to register any Security Interest.
11.3You must not without our prior written consent, create or attempt to create a Security Interest in or affecting the Collateral described above, other than as set out in this these Terms. This, however, does not prevent you from entering into a general security agreement with any financier in respect of any financial accommodation given to you.
11.4You waive the right to receive any notice under section 157(1) of the PPSA.
11.5The parties agree that neither of them will disclose information of the kind referred to in section 275(1) of the PPSA.
11.6You authorise us at our discretion to disclose to any person claiming to be a secured party under any prior or subsequent Security Interest or encumbrance in or over the Collateral, any details of the outstanding and accruing indebtedness, security held or any other particulars in connection with the monies payable to us under these Terms.
12Warranty and Limitation of Liability
12.1Nothing in these Terms is intended to limit or replace any obligations which cannot be lawfully excluded (Non-Excludable Terms).
12.2You warrant that our goods supplied are not intended and will not be used by you for personal, domestic or household use and are only purchased for the purpose of re-supply.
12.3If you are taken to acquire goods to which these Terms apply as a consumer for the purposes of the Australian Consumer Law (ACL), our goods come with guarantees that cannot be excluded under the ACL (consumer guarantees).
12.4If you are not taken to acquire goods as a consumer for the purposes of the ACL, we warrant that our goods supplied will be of merchantable quality, free from defects in material and workmanship and will comply with all relevant Australian Standards and laws applicable to the goods and the uses for which they are designed.
12.5Your right to claim for a breach of the warranty in clause 12.4 is conditional upon:
12.5.1you, strictly following the return of goods policy set out in clause 13 below;
12.5.2you have properly used and maintained the goods in accordance with our recommendations or those of the manufacturer (if any);
12.5.3the breach of warranty is not caused or contributed to by any of your acts or omission or by fair wear and tear.
12.6To the extent permitted by law:
12.6.1if we are liable for breach of any Non-Excludable Term or for breach of the warranty in clause 12.4, our liability is limited to one or more of the following at our discretion:
12.6.1.1in the case of goods – the replacement of the goods or the supply of equivalent goods; or the repair of the goods; or the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired;
12.6.1.2in the case of services – the supply of the services again; or the payment of the cost of having the services supplied again.
12.6.2all representations, warranties and conditions of any kind, implied by statute, general law or custom relating to the goods are excluded; and
12.6.3both we and you exclude all liability for loss of profits, loss of revenue, loss of business, loss of production, loss of opportunity or goodwill, business interruption and any indirect or consequential Loss.
12.7The limitations and exclusion of liability under clause 12.6 do not apply in respect of:
12.7.1death or personal injury; or
12.7.2damage to third party tangible property,
to the extent caused or contributed to by us and then only to such extent that we are not otherwise released from liability under these Terms.
13Return of Goods
13.1If you are not taken to acquire goods as a consumer for the purposes of the ACL, we are not obliged to accept the return of or allow any credit for goods which are the subject of the warranty in clause 12.4 or any applicable manufacturer’s warranty and which you claim breaches that warranty unless:
13.1.1you give us written notice of the non-compliance within 1 month after the date of first becoming aware of the breach. The notice must give sufficient details of the Claim and be accompanied by a copy of our invoice. We may in addition require you to send digital photos of the non-compliance; and
13.1.2you comply with any reasonable instructions we give you in relation to the inspection, handling return or disposal of the goods; and
13.1.3if instructed to return the goods, the goods are returned by you to us at your cost.
14General
14.1If any part of these Terms is held to be void or unlawful, these Terms will be read and enforced as if the void or unlawful provisions have been deleted.
14.2Nothing in these Terms is intended to create an agency, partnership or joint venture relationship between you and us. Neither you nor us has any authority to bind the other to any obligation to any third party unless otherwise agreed in writing.
14.3If a party is prevented from or delayed in complying with an obligation (other than to pay money) by an event beyond its reasonable control, performance by it of that obligation is suspended during the time but only to the extent that compliance is prevented or delayed.
14.4We may vary these Terms on giving 1 month’s prior written notice to you. The varied Terms will not apply to any invoice or order issued or given prior to the date of expiry of that 1 months’ notice.
14.5These Terms are governed by and construed in accordance with the laws of NSW and the parties submit to the non-exclusive jurisdiction of the courts of NSW.
14.6Any notice to be given by us or you to the other must be in writing.
15Novation
15.1In the event of the sale of part or all of our business to a third party (Purchaser), you consent to the novation of these Terms from us to the Purchaser, effective on and from 7 days after receipt of written notice from us to you, and agree that on and from 7 days after receipt of that written notice:
15.1.1the Purchaser will assume all our rights and obligations under these Terms; and
15.1.2we are released from all rights and obligations under these Terms; and
15.1.3every order for the supply of goods placed by the you and each new contract for the supply of goods by the Purchaser, will be novated on the same terms and conditions as in force with us, as set out in these Terms.
