Definitions
In these Terms:
“ACL” means the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
“Agreement” means any agreement for the provision of goods or services by RXI to the Customer;
“Consumer” is as that terms is defined in the ACL;
“Customer” means the person, jointly and severally if more than one, to or for whom the Goods and/or Services are to be supplied by RXI;
“Goods” means goods supplied by RXI to the Customer;
“GST” means the Goods and/or Services tax levied in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the expressions ‘supply’ and ‘tax’ have the same meanings as in that Act;
“PPSA” means the Personal Property Securities Act 2009 (Cth);
“RXI” means the RXI Group Pty Ltd (ABN 26164142705);
“Services” means services supplied by RXI to the Customer in relation to the goods, including installation and fitment services;
“Terms” means these Terms and Conditions of Trade and as amended in writing from time to time in accordance with this document; and
“Vehicle” means the vehicle that the Customer provides to RXI for the purposes of RXI’s delivery of the Goods and Services pursuant to the terms of this Agreement.
1. General Conditions
1.1. These Terms apply to the Agreement entered into by the Customer with RXI for the purchase of Goods and Services from RXI. The documents forming the Agreement include these Terms, quotation and any credit application, if a credit application applies. To the extent of any inconsistency between these documents, the Terms prevail to the extent of any inconsistency, unless otherwise agreed to in writing by RXI.
1.2. Any quotation provided by RXI to the Customer for the proposed supply of goods or services is:
(a) valid for 30 days;
(b) an invitation to treat only; and
(c) only valid if in writing.
1.3. The Customer must provide RXI with its specific requirements, if any, in relation to the Goods and/or Services and, if the specific requirements are accepted by RXI then any quotation or order will be subject to the requirements specified in writing by the Customer to RXI.
1.4. An order given to RXI is binding on RXI and the Customer, if:
(a) a written acceptance is signed for or on behalf of RXI; or
(b) the Goods and/or Services are supplied by RXI in accordance with the order.
1.5 Acceptance of any RXI quotation by the Customer or the issue of any order to RXI, whether written or verbal, for performance of work or supply of Goods and/or Services shall be deemed to be the Customer’s acceptance of these Terms, and these Terms will override and supersede any conditions contained in the Customer’s order, whether provided to RXI before or after these Terms are issued to the Customer, including all prior discussions, representations (contractual or otherwise), and arrangements relating to the supply of Goods and Services. Unless otherwise agreed by RXI in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
1.6. RXI reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods and/or Services to the Customer. No order is binding on RXI until accepted by it. An order which has been accepted in whole or in part by RXI cannot be cancelled by the Customer without obtaining the prior written approval of RXI, which it may refuse in its absolute discretion. RXI has absolute discretion to refuse or accept any order.
1.7. RXI may amend these Terms at any time and from time to time. RXI will provide 28 days’ written notice to Customer when there is an amendment to the Terms, and any variations or amendments will apply to orders on expiry of the notice period. Customer should contact RXI to obtain the latest version of the Terms prior to making a purchase.
1.8. Any weights provided by RXI in quotations or otherwise are provided in good faith for items as shown, with the exception of minor miscellaneous items such as brackets and fasteners.
2. Pricing and Payment
2.1. Prices quoted for the supply of Goods and/or Services include GST and any other taxes or duties imposed on or in relation to the Goods and/or Services.
2.2. If the Customer requests any variation to the Agreement, RXI may increase the price to account for the variation.
2.3. Where there is any change in the costs incurred by RXI in relation to Goods or Services, RXI may vary its price to take account of any such change, by notifying the Customer prior to incurring the costs.
2.4. Unless otherwise agreed in writing:
(a) subject to clause 2.4(b), full payment for the Goods and/or Services must be made within 30 days of the date of RXI’s invoice; and
(b) RXI reserves the right to require payment in full on delivery of the Goods and/or completion of the Services as stated on the quotation.
2.5. Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
2.6. If the Customer is a credit customer with an RXI approved credit application, payment terms may be revoked or amended at RXI’s sole discretion immediately upon giving the Customer written notice if the Customer is in default under these Terms.
2.7. The time for payment is of the essence.
2.8. If the Customer defaults in payment by the due date of any amount payable to RXI (the Relevant Date), then all money payable by the Customer, including all money which would become payable by the Customer to RXI at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and RXI may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest on any sum due pursuant to this clause 2.8 at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4% calculated daily and capitalised daily for the period from the Relevant Date until the date full payment of all money owing to RXI pursuant to this clause 2.8, including all accrued interest, is repaid to RXI in full;
(b) charge the Customer for, and the Customer must indemnify RXI from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any Goods;
(c) cease or suspend supply of any further Goods and/or Services to the Customer; and
(d) by written notice to the Customer, terminate any uncompleted contract with the Customer.
2.9. Clause 2.8 may also be relied upon, at RXI’s option:
(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
2.10. All amounts payable by the Customer to RXI under these Terms must be paid without set-off or counter claim of any kind.
2.11. Receipt by RXI of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised an until then RXI’s ownership or rights in respect of the Goods shall continue.
3. Passing of Property
3.1. Notwithstanding that the risk in the Goods may have passed to the Customer, RXI and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid RXI all amounts owing for the particular Goods and related Services; and
(b) the Customer has met all other obligations due by the Customer to RXI in respect of all contracts between RXI and the Customer.
3.2. Until RXI receives full payment in cleared funds for all Goods and Services supplied by it to the Customer, as well as all other amounts owing to RXI by the Customer;
(a) the Customer must hold the Goods as fiduciary bailee and agent for RXI;
(b) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest, including any security interest, in the Goods while they remain the property of RXI; and
(c) he Customer must keep the Goods separate from its Goods and maintain RXI’s labelling and packaging;
(d) the Customer must hold the proceeds of sale of the Goods on trust for RXI in a separate account with a bank to whom the Customer has not given security, however failure to do so will not affect the Customer’s obligation as trustee;
(e) in addition to its rights under the PPSA, RXI may without notice, enter any premises where it suspects the Goods are and remove them, notwithstanding that they may have been attached to other Goods not the property of RXI, and for this purpose the Customer irrevocably licences RXI to enter such premises and also indemnifies RXI from and against all costs, claims, demands or actions by any party arising from such action; and
(f) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other goods the parties agree that RXI will be the owner of those other goods (Comingled Goods). The Customer must use best endeavours not to covert the Goods into other goods until such time that the Customer has paid RXI in full for the Goods.
4. Lien
4.1. If RXI installs the Goods in accordance with clause 8, then:
(a) RXI retains a general lien over the Vehicle; and
(b) if RXI is in possession of the Vehicle, RXI may withhold and retain possession of the Vehicle and charge the Customer storage costs incurred by RXI until full payment in cleared funds is made for the Goods and Services including storage costs.
5. PPSA
5.1. Defined terms in this clause 5 have the same meaning as given to them in the PPSA and notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
5.2. RXI and the Customer acknowledge that these Terms constitute a Security Agreement and to the extent that the arrangement documented in these Terms constitutes a Security Interest:
(a) this clause 5 applies; and
(b) the Security Interest is created in, and the Customer grants to RXI a Security Interest in:
(i) all Goods previously supplied by RXI to the Customer, if any;
(ii) all Goods that will be supplied in the future by RXI to the Customer; and
(iii) all proceeds received by the Customer in relation to the Goods, if any; and
(iv) any Comingled Goods and their proceeds, if any,
and a Financing Statement may be registered on the Personal Property Securities Register.
5.3. The Customer acknowledges that the creation of, and granting of, the Security Interest gives rise to remedies of repossession, retention and/ or sale of the Goods in accordance with the PPSA or otherwise where RXI seeks to enforce the Security Interest. The Customer will at RXI’s request promptly sign any documents, provide all necessary information and do anything else required by RXI to ensure that the security interest constitutes a perfected security interest, as defined in the PPSA, and which will have priority over all other security interests in the Goods, any Comingled Goods, and their proceeds.
5.4. To the extent permissible at law, the Customer:
(a) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer to RXI; and
(b) agrees to indemnify RXI on demand for all costs and expenses, including legal costs and expenses on a solicitor/client basis, associated with any registration, amendment, discharge, or enforcement or attempted enforcement of any Security Interest, and all other costs associated with the perfection and enforcement of the Security Interest.
5.5. To the extent permissible at law:
(a) nothing in sections 130 to 143 of the PPSA will apply to these Terms or the Security Interest under these Terms; and
(b) the Customer waives its rights as they are set out in all the following sections of the PPSA: 95,118, 121, 123 and 129.
5.6. The Customer shall ensure that all third parties who may from time to time take or come into possession of the Goods are advised of RXI’s Security Interest in such Goods.
5.7. The Customer must give RXI at least 14 days’ prior written notice if the Customer changes its name.
5.8. All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.
5.9. To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on RXI will apply only to the extent that they are mandatory or RXI agrees to their application in writing; and
(b) where RXI has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
5.10. The Customer must immediately upon RXI’s request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by RXI to be relevant to its security position such agreements and waivers (including as equivalent to those above) as RXI may at any time require.
5.11. RXI may allocate amounts received from the Customer in any manner RXI determines, including in any manner required to preserve any Purchase Money Security Interest it has in Goods supplied by RXI.
5.12. For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of Goods and details of the Goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Terms or the sale of the Goods, except as otherwise required by law or that is already in the public domain.
6. Risk and Insurance
6.1. The risk in the Goods passes to the Customer on delivery, which occurs pursuant to clause 7.
6.2. All Vehicles are to be fully insured by the Customer at all times. For the avoidance of any doubt, this means that the Vehicles are to be fully insured by the Customer, including for damage and theft, relating to the period before delivery to RXI, whilst the Vehicle is in RXI’s possession, being the period RXI stores the Vehicles and performs the Services until such time that delivery occurs, being when the Vehicle is collected by the Customer. The Customer agrees and accepts that RXI will not be liable for any damage or theft of the Vehicle whilst the Vehicle is in RXI’s possession. The Customer must ensure that it complies with its insurance policy at all times and failure by the Customer to do so does not pass any liability onto RXI.
6.3. The Goods are sold to the Customer and the Services are provided on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the Goods and its Vehicles, on which the Goods are installed.
6.4. The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, self installation, installation by RXI or possession of any of the Goods sold by RXI, unless recoverable from RXI pursuant to the Agreement.
7. Delivery
7.1. Delivery dates for delivery of Goods and/or Services are estimates only. If RXI cannot complete the Goods and/or Services by any estimated date, it will complete the Goods and/or Services within a reasonable time.
7.2. Subject to clause 7.6, RXI will advise the Customer when the Goods are available for collection.
7.3. Delivery is deemed to occur just prior to when the Goods are collected from RXI on behalf of the Customer by a third party carrier representing the Customer or end user, or on the occurrence of the circumstances described in clause 7.7.
7.4. The Customer is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the Goods and Vehicle to the Customer.
7.5. RXI may make part delivery of Goods or provision of Services, and RXI may invoice the Customer for the Goods and/or Services provided.
7.6. Except where RXI’s obligations is a “statutory guarantee” pursuant to Division 1 of Part 3-2 of the ACL, RXI is not liable for any loss or damage whatsoever suffered by the Customer or any third party due to the failure by RXI to make the Goods available for collection or supply the Services (or any of them) promptly or at all. The failure by RXI to make the Goods and/or Services available for collection by any particular time does not entitle either party to treat these Terms as repudiated.
7.7. If RXI notifies the Customer that the Goods and/or Vehicle are available for collection:
(a) the Customer must collect the Goods and/or Vehicle with 7 days of being advised they are ready; and
(b) if the Customer does not collect the Goods and/or Vehicle within this time, the Customer is deemed to have taken delivery of the Goods and/or Vehicle on expiry of the 7 day period in clause 7.7(a) and the Customer is liable for storage charges payable monthly on demand.
7.8. Subject to these Terms, the Customer indemnifies RXI against any loss or damage suffered by RXI, its sub-contractors or employees as a result of any failure by the Customer to comply with its obligations pursuant to clause 7.
7.9. If the Customer is in breach of any of the Terms, RXI may in its absolute discretion withhold further supplies of Goods and/or Services.
8. Installation of Goods
8.1. Subject to clause 8.2, the Customer must install the goods.
8.2. If RXI installs the goods, then the Customer must:
(a) specify the exact configuration of the Goods to be installed; and
(b) make their Vehicle available to RXI to perform the installation services.
8.3. If the Customer requests any alterations to the configuration of the installed Goods as specified in clause 8.2(a), RXI may increase the price to account for the variation.
8.4. To the extent permitted by law and subject to clause 9, RXI will not be liable to the Customer in any way arising out of or in connection with the installation of the Goods.
9. Liability
9.1. Goods are sold and advice is given in good faith.
9.2. Customer must promptly inform RXI of all complaints or claims relating to the Goods and/or Services.
9.3. Except as expressly stated in these Terms, or as contained in any express warranty provided in relation to the Goods or Services, all conditions, warranties and implied terms, whether statutory or otherwise, are excluded in relation to the Goods and/or Services.
9.4. To the extent permitted at law, RXI is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) Customer’s use or misuse of the Goods;
(d) any act, omission or negligence by Customer, its employees, agents or representatives;
(e) any delay in delivery of the Goods;
(f) any loss or expense resulting from a claim by a third party; or
(g) any special, indirect or consequential loss or damage of any nature whatsoever caused by RXI’s failure to complete or delay in completing the order to deliver the Goods and/or Services.
9.5. To the full extent permitted by law, RXI excludes all of its liability to the Customer under the Agreement and these Terms. To the full extent permitted by law, where RXI’s liability cannot be excluded, the maximum aggregate liability of RXI for any breach of a condition, guarantee or warranty, whether implied by law or otherwise (including the ACL to the extent possible), is limited to, at RXI’s option in relation to:
(a) the Goods:
(i) he replacement of the Goods or the supply of equivalent goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the Goods repaired; or
(b) the Services:
(i) the supply of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
9.6. For the avoidance of doubt, clause 9.5 applies to all circumstances if the Customer on-supplies the Goods to a Consumer and the Goods or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption.
9.7. Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) (“CCA”), the Fair Trading Acts (“FTA”) or any other State or Federal laws in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable and in accordance with these Terms.
9.8. In circumstances where RXI’s liability cannot be limited to the matters set out in clauses 9.5, 9.6 and 9.7 above, the maximum aggregate liability of RXI for any breach of a condition, guarantee or warranty whether implied by law or otherwise (including the ACL), is limited to the amount payable by you to RXI in respect of the Goods and/or Services giving rise to the liability.
9.9. The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by RXI in relation to the Goods or Services or their use or application.
(b) it has not made known, either expressly or by implication, to RXI any purpose for which it requires the Goods or Services and it has the sole responsibility of satisfying itself that the Goods or Services are suitable for the use of the Customer.
10. Cancellation
10.1. If RXI is unable to deliver or provide the Goods or Services, then it may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer.
10.2. No purported cancellation or suspension of an order or any part of it by the Customer is binding on RXI once the order has been accepted
11. Shortages and Exchanges
11.1. Subject to clauses 11.2 and 11.4, RXI will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless the Customer notifies RXI with full details and description within 10 days of delivery otherwise the Customer is deemed to have accepted the Goods and Services.
11.2. When any shortages, claim for damaged Goods or non-compliance with the Agreement specifications is accepted by RXI, RXI may, at its option, replace the Goods, or refund the price of the Goods.
11.3. Subject to clause 11.4, RXI will not under any circumstances accept Goods for return that:
(a) have been specifically produced, imported or acquired to fulfil the Agreement;
(b) are discontinued Goods or no longer stocked by RXI;
(c) have been altered in any way other than the alteration been made by RXI;
(d) have been used; or
(e) are not in their original condition and packaging.
11.4. If the Customer is a Consumer, nothing in this clause 11 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
12. Miscellaneous
12.1. These Terms and the Agreement is governed by the laws of Victoria, and the laws of Commonwealth of Australia, which are in force from time to time. The parties agree to the non-exclusive jurisdiction of the courts of Victoria and the relevant Federal courts and courts to hear appeals from those courts.
12.2. RXI is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, RXI may suspend or terminate the Agreement by written notice to the Customer.
12.3. RXI’s failure to enforce any of these Terms shall not be construed as a waiver of any of RXI’s rights.
12.4. If a clause is unenforceable, it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
12.5. To the full extent permitted by law, the Customer must indemnify RXI and keep RXI indemnified from and against any liability and any loss or damage RXI may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms by Customer or its representatives.
12.6. A notice must be in writing and handed personally or sent by email or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by email are deemed received on confirmation of successful transmission.