BLUE CONNECTIONS PTY LIMITED ACN 630 573 349
Terms of Trade for Goods and Services supplied in Australia
Goods and/or services (“Supplies”) are sold and supplied by Blue Connections Pty Limited (ACN 161 702 165) (“Blue Connections”) to the customer (“Customer”) on the following general Terms of Trade (“Terms of Trade”) which supersede all previous terms and conditions of supply.
- Unless otherwise set out in writing, all prices do not include Goods and Services Tax (“GST”).
- All prices are those published as at the date of invoice. All prices are subject to change without notice.
Acceptance and Delivery
- The Customer’s right to possession of any Supplies does not arise until delivery of the Supplies.
- Blue Connections reserves the right to accept in whole or in part or to reject any order submitted by the Customer.
- Blue Connections is not liable in any way for any loss or damage (including consequential loss or damage) arising from delays in the delivery of the order or any part of it.
- The Customer must notify the carrier of any damage or suspected damage to Supplies on delivery in writing on the proof of delivery note and must notify Blue Connections within 5 working days of delivery.
- If the Supplies do not conform to the delivery note, or are supplied in error, the Customer must notify Blue Connections within 5 working days of the receipt of the delivery note. Details of the delivery note must accompany the claim.
- Requests by the Customer for proof of delivery must be made to Blue Connections within 7 days from the receipt of invoice. Details of the invoice must accompany the request.
Services performed by Blue Connections
- The Customer agrees that any warranty related to Supplies provided by Blue Connections is provided only by the third party manufacturer of Supplies provided to Customer by Blue Connections and not by Blue Connections.
- All Manufacturer Warranty terms will be provided to the Customer on request or the Customer can access Manufacturer Warranty terms related to the Supplies directly from the manufacturer.
- The Customer agrees that Blue Connections has no obligation to provide any services pursuant to manufacturer’s warranty of the Supplies to the Customer.
- The Customer may request and Blue Connections may perform warranty services offered by a manufacturer on behalf of any Supplies provided by Blue Connections.
- The Customer agrees that Blue Connection will perform any service related to a Manufacturer Warranty as agent of manufacturer only.
- The Customer may also request Blue Connections to perform non-warranty services related to Supplies. Blue Connections may agree to provide such further services subject to separate terms of engagement to be agreed at time of any further service request.
- For the purposes of these Terms of Trade, a Manufacturer Warranty is provided by the manufacturer of the Supplies and not by Blue Connections.
The Customer is responsible for the payment of all freight and delivery charges for any orders of Supplies.
Risk of Carriage, Handling and Storage
Risk in any Supplies supplied by Blue Connections passes to the Customer upon the Supplies being delivered to the premises specified on the Customer’s order or when uplifted by the Customer or its agent from Blue Connections’ premises.
Payment and Title
- Unless Blue Connections has agreed to extend credit to the Customer, payment is to be made in cash on collection of any Supplies or on collection of any Supplies upon which Blue Connections has performed work.
- Blue Connections is entitled to retain all or part of the Supplies under a lien until the amount owing is paid in full. Payment by cheque or by any type of bank transfer is not payment until the payment has been fully cleared through the banking system into Blue Connections’ bank account.
- Where Blue Connections has agreed to extend credit to the Customer (and for the avoidance of doubt, Blue Connections has no obligation to extend credit to a customer and may withdraw such credit at any time), payment is to be made in full in accordance with the credit terms agreed in writing between Blue Connections and the Customer. Where there is no agreement in writing of the payment terms, but Blue Connections has agreed to extend credit, the payment term is the 20th of the month following supply, time being of the essence. Note payment by Amex or Diners Card attracts an additional fee of no less than 3% to be added at the time of payment.
- All queries or disputes regarding accounts must be raised before the due date for payment.
- If payment for Supplies is not made in full by the due date:
- any discount (prompt payment or otherwise) or rebate lapses and the Customer must immediately pay the non-discounted price of the Supplies and receives no discount or rebate;
- Blue Connections is entitled to charge the Customer interest on the unpaid overdue balance (both before and after judgment) at the rate of 5% per annum above the current overdraft rate charged by Blue Connections’ bankers;
- Blue Connections may at its option suspend delivery of further Supplies or performance of further work until the account is fully paid; and
- the Customer agrees to pay, and hereby indemnifies Blue Connections for, all costs, fees, damages and expenses incurred by Blue Connections in collecting overdue amounts, including legal costs on a solicitor/client basis and any debt collection agency charges.
- Notwithstanding any credit granted to the Customer or anything contained in these Terms of Trade, Blue Connections retains full legal and beneficial ownership and title in all Supplies until payment in full of the purchase price of the Supplies and all other amounts owing to Blue Connections by the Customer.
- Until the ownership and title in the Supplies passes to the Customer, the Customer:
- holds the Supplies as trustee fiduciary agent and bailee for Blue Connections;
- stores the Supplies separately and with the interest of Blue Connections as owner clearly marked on the Supplies; and
- not charge, mortgage or encumber the Supplies.
- In circumstances set out in 6(f), unless otherwise notified in writing, the Customer is not authorised to sell the Supplies in the ordinary course of business. The Customer irrevocably authorises Blue Connections or its agent to enter the Customer’s premises to remove any Supplies which are the property of Blue Connections and indemnifies Blue Connections from any loss, damage or expense arising as a result of Blue Connections taking action pursuant to this clause.
- Notwithstanding clauses 6(b) and 6(d) above, all payments become immediately due and payable to Blue Connections if a receiver, receiver and manager, liquidator, provisional liquidator or administrator is appointed over any of the assets or the undertaking of the Customer, an application is made to court or a resolution is passed or an order is made for the winding up or dissolution of the Customer, the Customer makes or attempts to make an arrangement or composition with its creditors or any class of them, or the Customer is declared or taken under any applicable law to be insolvent or commits any act of bankruptcy.
Personal Property Securities Act
- Words and expressions used in clause 7 which are not defined in these Terms of Trade but are defined in the Personal Property Securities Act 2009 (Cth) (“PPSA”) have the meaning given to them in the PPSA.
- The Customer hereby acknowledges that these Terms of Trade constitute a security agreement which creates a security interest in favour of Blue Connections in all Goods previously supplied by Blue Connections to the Customer (if any) and all Goods afterwards supplied by Blue Connections to the Customer (or for the Customer’s account) to secure the Customer’s payment obligations to Blue Connections from time to time and at any time, including future advances. The Customer agrees to grant a “Purchase Money Security Interest” to Blue Connections.
- The Customer acknowledges and agrees that by assenting to these terms the Customer grants a security interest (by virtue of the retention of title clause in these Terms of Trade) to Blue Connections and all Goods previously supplied by Blue Connections to the Customer (or for the Customer’s account) and these terms will apply notwithstanding anything express or implied to the contrary contained in the Customer’s purchase order.
- The Customer undertakes to:
- sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) which Blue Connections may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register (“PPSR”);
- not register a financing change statement as defined in section 10 of the PPSA or make a demand to alter the financing statement pursuant to section 178 of the PPSA in respect of the Supplies without the prior written consent of Blue Connections;
- give Blue Connections no less than 14 days written notice of any proposed change in the Customer’s name and/or any other changes in the Customer’s details (including by not limited to changes in the Customer’s address, facsimile number, email address, trading name or business practice);
- pay all costs incurred by Blue Connections in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce the security interest created by these Terms of Trade including executing subordination agreements;
- be responsible for the full costs incurred by Blue Connections (including actual legal fees and disbursements on a solicitor/client basis as se out in 6(e)(iv)) in obtaining an order pursuant to section 182 of the PPSA;
- give Blue Connections free and immediate access to its premises or places within its control to enable Blue Connections to enforce its security interests;
- procure, immediately upon request by Blue Connections from any persons considered by Blue Connections to be relevant to its security position, such agreement and waivers as Blue Connections may at any time require; and
- the Customer waives any rights it may have under sections 115 of the PPSA upon enforcement.
- Unless otherwise agreed to in writing by Blue Connections, the Customer waives the right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest.
- To the maximum extent permitted by law, the Customer waives its right to receive any notices from Blue Connections under the PPSA.
Warranties and Liability
- Blue Connections will provide the Supplies with any warranty offered by the manufacturer of the Supplies. To the maximum extent allowed by law, Blue Connections does not provide any warranty of any kind as to the Supplies.
- Any liability of Blue Connections for loss or damage to the Supplies or parts of the Supplies is limited at Blue Connections’ sole discretion to the replacement or repair of those Supplies. If the Supplies are or include services, any liability of Blue Connections for any loss or damage caused by the services supplied is limited at Blue Connections’ sole discretion to the resupply of those services.
- The liability of Blue Connections for faulty or defective Supplies is limited to Blue Connections’ invoice amount of the faulty or defective Supplies.
- Any complaint about the Supplies (including regarding the quality of the Supplies), must be accompanied by:
- the Supplies, or a specimen of the Supplies showing the reported defect; and
- where appropriate and to the extent necessary to establish the fault, a sample taken from the consignment in its original packaging showing the reference used for identification, and except where an extended time period for the lodgement of a complaint has been granted by Blue Connections in respect of the Supplies, the complaint must be made within (14) days of delivery of the Supplies.
- Blue Connections is not liable to the Customer for any consequential loss or damage (including lost profit or business) however that loss or damage is caused or arises. This exclusion of liability includes, but is not limited to, consequential loss or damage caused by or arising from delays in manufacturing or delivery, faulty installation, unreasonable use, negligence (including a failure to do something which should have been done or to prevent something from happening), faulty design, and faulty material, equipment or component part in the Supplies. The exclusion also includes costs incurred in returning the Supplies to Blue Connections or to any manufacturer.
- Nothing in these Terms of Trade is intended to have the effect of contracting out of the provisions of the Australian Consumer Law (or any other statute that imposes warranties, conditions or obligations which cannot by law (or which can be only to a limited extent by law) be excluded, restricted or modified), and these Terms of Trade must be read down to the extent necessary to give effect to that intention.
Quality, Packages, Trademarks
- Because of Blue Connections’ continuous product development, Supplies supplied may vary in appearance to illustrations promoting the Supplies.
- If the Supplies are purchased for re-supply the Customer must:
- store, handle and display the Supplies in a proper way to maintain quality;
- sell the Supplies to its customers in their original packages on which are set out marks, numbers, references, and other information, without covering, defacing, altering, erasing or otherwise misusing the packaging or any marks, numbers or references.
- Supplies that are damaged due to faulty installation will not be accepted for return.
- Blue Connections may at its sole option accept the return of Supplies which are surplus to the Customer’s requirements provided that:
- Supplies are undamaged, carefully packed in their original packing with their original marks and numbers unaltered, and are in a saleable condition;
- Supplies are returned within seven days of delivery;
- all details of the original invoice accompany the Supplies;
- Supplies are returned at least three months prior to the stated expiry date;
- the consent of Blue Connections has been obtained prior to the return;
- Supplies are returned to Blue Connections at the Customer’s cost.
- Blue Connections may charge a handling fee on returned Supplies (minimum AUD$5). Returned Supplies attract a handling fee of AUD$5 or 20% of merchant price, whichever is greater.
- Any Supplies accepted for return by Blue Connections will be credited to the Customer’s account at the actual invoice price or Blue Connections’ current selling price, whichever is the lesser.
Use of the Blue Connections name
- The Customer must not use the Blue Connections name in any way for the purposes of its business without the written permission of the Managing Director of Blue Connections and must not infringe in any way any Blue Connections trademarks and/or other intellectual property, which are the property of Blue Connections Limited and/or its related entities.
- Customers advertising Blue Connections’ Supplies must consult Blue Connections concerning proper use of trademarks, registered trade names, etc.
- Blue Connections’ advertising material and display stands and Supplies supplied to the Customer for its own business use which is not intended for distribution to the public remains the property of Blue Connections and must be returned on request.
- Nothing in these Terms of Trade authorises the Customer to act as Blue Connections’ agent and the Customer has no authority to assume or create obligations on behalf of Blue Connections.
- In this clause 12, words and expressions which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning given to them in that Act.
- All amounts payable by the Customer under these Terms of Trade do not include an amount for GST. If GST is payable on any supply made by Blue Connections under these Terms of Trade, the Customer must pay to Blue Connections, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply.
- Where the Customer is required by these Terms of Trade to reimburse or indemnify Blue Connections for any loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that Blue Connections will be entitled to claim for the loss or amount incurred and increased by the amount of any GST payable by Blue Connections in respect of the reimbursement or payment.
Privacy and data collection
- any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to the Customer’s obligations to Blue Connections; or
- such persons as may be necessary or desirable to enable Blue Connections to exercise any power or enforce or attempt to enforce any of Blue Connections’ rights, remedies and powers under these Terms of Trade.
Blue Connections will not be liable for any failure to perform or delay in performing its obligations under these Terms of Trade if that failure or delay is due to any event arising from, or attributable to, acts, events, omissions or accidents which are beyond its reasonable control (including any fire, failure or shortage of power supplies, abnormally inclement climate or weather conditions, flood, lightning, storm, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, riot, disease, civil commotion, insurrection, political instability, armed conflict, war, terrorist action or the threat of any of the foregoing).
- These Terms of Trade prevail and take precedence over the Customer’s standard or special Terms of Trade for the ordering of the Supplies and may not be modified or varied unless expressed in writing and agreed to by Blue Connections.
- If Blue Connections fails to enforce any of these Terms of Trade or fails in any way to exercise its rights under these Terms of Trade, Blue Connections will not waive those rights with respect to any subsequent breach of any term or condition or right.
- If any provision of these Terms of Trade is held to be invalid or unenforceable for whatever reason, the remaining provisions remain in full force.
- The laws of Victoria, Australia shall govern this document and any disputes related to it shall be heard in the relevant court or tribunal in Melbourne, Victoria.