Conditions of Sale
All orders are accepted by AA subject to the Terms and Conditions of Sale set out below:
All orders for products ("Products") or services ("Services") will be accepted by Action Aquatics � ABN. 92 778 756 319 - (Barby Trading Co Pty Ltd ) (�AA�) subject to these terms and conditions of sale. Any person who places orders for Products with AA ("Customer") is bound by these terms and conditions. No other terms will apply to the supply of Products and Services by AA unless agreed in writing by an authorised signatory of AA. AA reserves the right to amend these terms and conditions at any time. The most current version of these terms and conditions can be found at www.actionaquatics.com.au. References to the "AA catalogue" include AA�s paper catalogue, AA�s website and any other catalogue of products published by AA in any medium.
Descriptions of the Products and Services in the AA catalogue or otherwise communicated to the Customer are approximate only and shall not form any part of the contract with the Customer. AA shall not be liable to the Customer for any errors or omissions in its catalogue. The advertising of products and services in the AA catalogue is not an offer capable of acceptance; it merely constitutes an invitation by AA for the Customer to make an offer.
AA is a business-to-business supplier. The AA catalogue is intended for use by business customers and not for consumers or private individuals.
The prices of Products and Services are as set out in the AA catalogue that is current at the date of despatch of the Products or provision of the Services. Products which are not listed in the AA catalogue will be sold at the prices set out in the relevant AA quotation. AA reserves the right to change prices without prior notice at any time. Up-to-date prices can be found at www.actionaquatics.com.au.
"GST" means the goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth). GST is a broad-based tax of 10% on the supply of goods and services.
All quoted prices exclude GST which is then added to the quoted price. If GST applies to any supply the Customer must pay an additional amount equal to the amount of GST. AA will provide a GST-compliant tax invoice within 28 days of a request.
AA reserves the right to decline to trade with any company or person and may decline to accept any order.
AA will not substitute an ordered Product for another unless requested by the Customer, or unless the Product has been superseded by the latest version. If the Customer confirms telephone, fax or internet orders, the confirmation must be marked 'confirmation only' to avoid duplication. If the Customer orders the wrong Product or quantity, or duplicates orders, clause 12 will apply.
AA will aim to deliver Products in accordance with the Customer's order. The Customer's delivery options, and the prices for them, are set out at AA�s website or will be notified to the Customer at the time of order. Lead times for the Extended Range are published on the AA website. Delivery will be made to the Customer's usual business address, unless otherwise agreed in writing.
Times and dates for delivery quoted in the AA catalogue or by AA�s employees are approximate only and AA shall not be liable for the consequences of any delay in delivery. Time for delivery shall not be of the essence. Delivery of Products marked in the catalogue as requiring special handling may (because of their nature) take longer to deliver.
If any delivery is late, the Customer must notify AA, and AA will endeavour to ascertain if the product has been delivered or the expected delivery time of the product to the Customer. If a revised delivery time is not acceptable AA may offer an alternative delivery option. In the case of an express delivery, AA will refund the total delivery charge to the Customer if the Customer can prove late or non-delivery. AA may notify the Customer if AA will be unable to fulfil any order within the published lead time, and will provide alternative options. These are the Customer's exclusive remedies for late delivery and AA shall not be liable for any loss or damage (including indirect, consequential or economic) suffered or incurred by the Customer or any other party in relation to late delivery.
6. Inspection, Transit Delays and Non-delivery
The Customer must inspect all Products as soon as reasonably possible after delivery and shall, within 10 days of delivery or, in the case of (iv), the due date for delivery, give written notice to AA of:
i. Any defect in a Product that is apparent on reasonable examination. In this case AA shall, at AA�s discretion, replace the Product or refund the purchase price (See clause 10 for terms of warranty).
ii. Any shortfall in Products delivered. In this case AA shall, at its discretion, deliver the undelivered Products or refund the price of the undelivered Products.
iii. Any delivery of Products not in accordance with the order. In this case AA shall, at AA�s discretion, replace the Products or refund the purchase price.
iv. Any non-delivery of the Products. In this case AA shall deliver the undelivered Products or refund the price of the undelivered Products.
If the Customer fails to give any such notice, the Customer will be deemed to have accepted the relevant order as being delivered in accordance with the Customer's instructions and to have accepted the Products as being free from all apparent defects.
The remedies set out above are the Customer's exclusive remedies in the circumstances described in paragraphs (i) to (iv) above. AA shall not be liable for any other losses, damages or expenses.
If AA has not granted credit to the Customer, payment terms are cash with order.
Credit terms (subject to satisfactory references and AA�s absolute discretion) are available. If credit has been granted, the Customer must pay within 14 days from the date for purchase. All payments must be made without any set-off, deduction or counterclaim.
If any sum is not paid on the due date for payment:
All sums then outstanding from the Customer will immediately become due and payable notwithstanding that such sums would not otherwise be due until a later date;
ii. The Customer will be liable to pay all expenses and legal costs incurred by AA in relation to obtaining or seeking to obtain an appropriate remedy; and
iii. AA may charge the Customer interest calculated on the unpaid amount and accrued during the period from the due date until payment is made in full (whether before or after judgement) at the rate of one per cent per month, compounded monthly.
8. Passing of Risk and Property
Risk of loss of or damage to the Products shall pass to the Customer on delivery. Ownership of the Products shall not pass to the Customer until all sums due to AA from the Customer for those Products have been received by AA, and until that time AA shall be entitled to the immediate return of all Products if the Customer is late in paying any sum to AA. The Customer authorises AA and its agents to enter any premises of the Customer and to recover the Products for that purpose.
9. Product and Availability Information
AA reserves the right to discontinue any Product or to change its design at any time. Unless otherwise confirmed, nothing in the Catalogue is to be taken as a representation of the source of origin, manufacture, or production of any Products or any part of them.
To the extent permitted by the Competition and Consumer Act 2011 (CCA):
For Products: AA warrants that if any Product is defective, it will, at its option, replace or repair the Product or refund the purchase price. This warranty is subject to a claim being notified in writing to AA within 12 months of the date of despatch of the Product, or such other longer period as may be indicated by AA for specific products from time to time.
ii. For Services: AA warrants that if any Service is defective, it will, at its option, either rectify the Service or supply to the Customer free of charge a substitute Product in place of the defectively serviced Product. This warranty is subject to a claim being notified in writing to AA within 12 months of the date of the invoice, or such other periods as may be indicated by AA for specific Products from time to time.
These warranties shall not apply to any defect which arises from improper use, failure to follow the product instructions, or any repair or modification made without the consent of AA. The Customer must deal with the defective Products in accordance with AA�s instructions.
The Customer must contact AA to notify AA in advance of the return of any Products and obtain a returns number, to be quoted on all paperwork. Returned Products must be accompanied by an advice note stating the invoice number and the nature of the defect. Where the Customer does not return Products in accordance with this clause 9, AA may refuse such Products and return them to the Customer at the Customer's cost.
To the extent permitted by the CCA, the remedies set out above shall be AA�s sole liability and the Customer's sole remedy for any breach of warranty and in respect of the supply of Products and/or Services. Save as expressly provided in these terms and conditions, all implied warranties, terms and conditions concerning the supply of Products and/or Services are excluded to the fullest extent permitted by law (including, without limitation, the implied terms of satisfactory quality, fitness for purpose and provision of services with reasonable care and skill). The Customer acknowledges that it is responsible for ensuring that the Products and Services it orders are fit for the purposes for which it intends to use them.
In giving the warranties set out above, AA does not exclude or limit any application of the Competition and Consumer Act 2011 (CCA) where to do so would contravene the CCA or cause any term of these conditions to be void ("Non Excludable Condition"). These warranties are in addition to any Non- Excludable Conditions.
11. Limitations of Use
Products sold by AA are not recommended or authorised for use in life support, surgical implantation, nuclear or aircraft applications or for any use or application in which the failure of a single component could cause substantial harm to persons or property.
To the extent permitted by the law, AA shall not be under any liability for damage, losses (whether direct, indirect or consequential), expenses, liabilities, injuries, loss of profits, business or economic loss, depletion of goodwill, costs (including legal costs), claims, demands, proceedings, judgments or otherwise resulting from the failure to give advice or information or the giving of incorrect advice or information (including through the AA technical helpline) whether or not due to its negligence or that of its employees, agents or sub-contractors.
AA shall not be liable for economic loss, punitive damages, loss of revenue, loss of profits or expected future business, damage to reputation or goodwill, loss of any order or contract or any consequential or indirect loss or damage, as may result from, or be connected with:
any express or implied terms of the contract between AA and the Customer, or of any order accepted by AA;
ii. any duty of any kind imposed on AA by law; or
iii. any defect in the Products or Services.
If, notwithstanding any provisions of these terms and conditions, any liability attaches to AA, AA�s liability to the Customer arising out of or in connection with these terms and conditions or any order whether in contract, tort or otherwise in respect of one or more of
any express or implied terms of the contract between AA and the Customer, or of any order accepted by AA;
ii. any duty of any kind imposed on AA by law; or
iii. any defect in the Products or Services, shall be limited in the aggregate to $200,000 or the total value of the order, whichever is greater.
13. Cancellations and Returns
The Customer may not cancel orders once accepted by AA. AA may allow an order to be cancelled at its discretion, subject to AA recovering from the Customer the costs incurred by AA. If only part of an order is cancelled, AA may invoice the Customer any difference in selling price per unit applicable to the quantity actually despatched prior to cancellation compared to the quantity ordered.
The Customer may only cancel or amend scheduled orders (i.e. orders for Products to be delivered periodically and which are specifically sourced for the Customer) if notice is received in writing at least 14 days prior to the next delivery date.
The Customer may only return Products to AA for a change of mind or for incorrect ordering, and receive a credit or refund, on the following conditions:
The Customer must contact AA in advance (phone 07 3806 2361) and obtain the prior consent of AA and obtain a returns number (to be quoted on all returned paperwork);
ii. Return must be made within 30 days of the date of delivery (as stated on the delivery documentation). Products must be returned to AA in their original packaging, unused and in a condition which will enable them to be immediately fit for re-sale.
iii. Products must be adequately packed and dispatched freight prepaid, clearly labelled, to the closest AA trade counter or to Returns Department, 15/5 Cairns Street Loganholme 4129 QLD
Products accepted for return will be credited at invoice value. AA reserves the right to apply a handling charge of 20% of invoice value.
This returns policy excludes DVDs, videotapes, books, software, calibrated Products, scheduled orders, non-catalogue Products, and production packaging format Products. AA will accept the return of test equipment at its sole discretion.
AA offers repair and calibration Services in respect of Products. AA may quote a turnaround time target for these Services, but will be under no liability if it fails to comply with such target. The conditions which apply to each of the Services are set out below.
Repairs: The Repair Service is subject to the availability of parts and is only available if the Product has not suffered excessive physical or electrical damage and is free from modifications (other than those detailed in the Product literature). AA may at its absolute discretion either repair the Product or replace it with a substitute Product. Any Customer-generated software returned with a Product will be erased and AA shall not be under any liability whatsoever in respect of any data contained in such software.
Calibration: AA will check the Product for compliance with the published specification at appropriate points, using working standards which are periodically verified and which are traceable to national standards. AA will issue a dated and signed certificate of testing, which gives details of the measurements made. If AA has to carry out more than the minor adjustments appropriate to a normal recalibration routine, AA will either return the Product to the Customer or, on receipt of the appropriate order, will repair the Product subject to AA' Repair Service conditions, before further Calibration. In this case, the Repair Service charge will be payable by the Customer in addition to the Calibration Service charge.
These service obligations apply where the general obligations of AA under the Warranties and Non-Excludable Conditions do not apply to a given circumstance.
15. Rights in the Catalogue
The Customer acknowledges that AA and its licensors own the intellectual property rights in the catalogue, the catalogue content and the stock numbers, and that their whole or partial reproduction without AA�s prior written consent is prohibited.
16. Force Majeure
A force majeure event is any event beyond the reasonable control of AA (including strikes, traffic congestion, the downtime of any external line, or AA�s inability to procure services, materials or articles required for the performance of the contract except at enhanced prices). If AA is prevented or restricted from carrying out all or any of its obligations by reason of any force majeure event, then AA shall be relieved of its obligations during the period that such event continues, and shall not be liable for any delay and/or failure in the performance of its obligations during such period. If the force majeure event continues for a period longer than 14 days, AA may cancel the affected order or cancel the whole or any part of these terms and conditions, without any liability to the Customer.
The Customer shall (and shall procure that persons associated with it or other persons who are purchasing goods or services in connection with this contract shall) comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption, including, but not limited to, the UK Bribery Act 2010 (the Relevant Requirements) and shall:
not (directly or indirectly) induce any employee, agent or subcontractor of AA to make any concession to or confer any benefit on the Customer, refrain or withhold from doing any act, in return for any gift, money, or other inducement;
ii. not do or omit to do any act that will cause or lead AA to be in breach of any of the Relevant Requirements;
iii. promptly report to AA any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of this contract;
iv. have and maintain in place throughout the term of this contract its own policies and procedures, including, but not limited to, adequate procedures to ensure compliance with the Relevant Requirements and shall promptly supply copies of or provide access to such policies on request from AA.
The Customer is informed that AA employees are not permitted to:
v. accept gifts of more than token value, loans, excessive entertainment or other substantial favours from any company or individual that does business with AA or seeks to do so;
vi. solicit gifts or other favours from any company or individual that does business with AA, or seeks to do so.
Entertainment is acceptable only if it has a justifiable business purpose. It should be of a reasonable nature and such that AA�s employees, agents or contractors, can reciprocate.
Financial restrictions on gifts and entertainment are contained in AA�s Anti-Bribery Policy and further details are available on request.
Any breach of this clause 16 shall be a material breach of this contract which is incapable of remedy.
18. Privacy and Customer Information
AA may send to the Customer and its employees details of other products and services offered by the business that may be of interest. If the Customer or its employees do not wish to receive details of these other offers, or wish to amend or correct their details, then they should contact the AA marketing department by email at [email protected]
The Customer consents to AA disclosing the Customer's name to certain of AA suppliers for market research and commission purposes.
19. Law and Jurisdiction
The contract between AA and the Customer as applicable to each Customer order shall be governed by and interpreted in accordance with Australian law and the Customer submits to the non-exclusive jurisdiction of the courts of Australia, but AA may enforce the contract in any court of competent jurisdiction.