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TERMS AND CONDITIONS OF SALE

1. These terms and conditions (“terms of trade”) apply to all transactions between the supplier Phoeniks Pty Ltd (ABN 85 133 921 918) Unit 3, 56 Norcal Road, Nunawading, Victoria 3131 (“we/us”) and the customer (“you”) notwithstanding any statement to the contrary which may be contained in the order. We may vary them at any time by notice in writing to you.


2. In these terms of trade:

(a) “goods” refers to goods supplied to you by us and comprises equipment, accessories and spare parts;

(b) “services” refers to any services supplied to you pursuant to a quotation and these terms of trade;

(c) “quotation” means a written description of the goods to be supplied or services to be rendered, with the price of the goods and/or an estimate of our charges for the performance of the services, the costs (if any) of delivery, freight charges and insurance;

(d) “non-stock items” means goods not normally stocked by us;

(e) “GST” means within the meaning of A New Tax System (Goods & Services Tax) Act 1999 (as amended);

(f) “material failure” means a failure to comply with the warranty in clause 18 where:

(i) a reasonable consumer would not have acquired the goods had they been fully acquainted with the extent and nature of the failure; or

(ii) the goods depart in one or more significant respects from the order for the goods placed by the customer; or

(iii) if the goods were supplied by reference to a sample or demonstration model, the goods depart in one or more significant respects from the sample or demonstration model; or

(iv) the goods are unsafe; or

(v) the product is unfit for a disclosed purpose that was made known to us and we cannot easily and within a reasonable time remedy to make it fit for the purpose; or

(vi) the goods are substantially unfit for the purpose for which goods of the same kind are commonly supplied and it cannot, easily and within a reasonable time, be remedied to make it fit for such a purpose.

(g) “price” means the cost of the goods supplied and/or the services rendered;

(h) “effective date” means the date of the signing of these terms of trade by you.


QUOTATIONS AND ORDERS


3. Quotations:

(a) are valid and open for acceptance for a period of 60 days from the date of the quotation;

(b) are based upon the cost of materials available at the time of preparation of the quotation and on delivery occurring within 180 days from the date of the quotation; and

(c) are to be construed as an invitation to treat and not as an offer to sell the goods the subject of the quotation;

(d) to the extent that they include non-stock items are quoted on the basis that each item is available for sale in Australia and complies with all applicable Australian standards and regulatory requirements.


4. We reserve the right to amend any quotation before completion of an order to take into account:

(a) any change in your original order; and

(b) any rise or fall in the cost of completing the order due to factors beyond our control including those referred to in clauses 8(b) and (c).
We will notify you of any amendment as soon as practicable, at which point the amended quotation will be the estimate or quotation for the purposes of these terms of trade.


5. An agreement for sale of the goods arises when an order for the goods is placed in writing by you on our standard order form on the terms of our quotation or amended quotation specifying the requested date of delivery and:

(a) that order is signed by us and accepted in writing; or

(b) that order is otherwise satisfied or performed in whole or in part by us.


6. Placement of an order by you signifies acceptance by you of these terms of trade and the most recent quotation.


7. We may in our absolute discretion refuse to provide goods where:

(a) goods are unavailable for any reason whatsoever;

(b) credit limits cannot be agreed upon or have been exceeded;

(c) payment for goods previously provided to you or any related or affiliated entity (as provided for in the Corporations Act), , has not been received by us; or

(d) the goods do not comply with all applicable Australian standards and regulatory requirements.


8. All prices quoted and any other charges applicable are:

(a) exclusive of GST, insurance and delivery charges unless specifically mentioned. GST will be payable by you upon supply of Goods;);

(b) based upon foreign exchange rates at the date of the quotation and subject to change in accordance with any change in applicable foreign exchange rates between the date of the quotation and the date of our invoice to you;

(c) based upon the manufacturer’s price for the goods at the date of the quotation and subject to change due to any change in the manufacturer’s price between the date of the quotation and the date of our invoice to you.


9. If you withdraw or cancel any order, following acceptance by us, we may claim as liquidated damages an amount equivalent to twenty percent (20%) of the price of the goods contained in the order accepted by us.


10. Orders for non-stock items may not be cancelled or returned under any circumstances at any stage.


PRICE


11. Prices will be quoted on each quotation and on every order accepted by us in Australian currency.


DELIVERY


12. Delivery shall occur when the goods are delivered to your loading dock by our carrier and you sign a confirmation of delivery in the form required by us. We do not deliver directly to your end users unless specifically required and accepted. For orders of equipment and/or accessories to a value of less than $250 (excluding GST), a $50 (excluding GST) freight charge applies. For all other orders we will advise you, in our quotation, of and the amount of any delivery/freight charges that may apply.


13. Any delivery date on your order or our quotation is an estimate only. Delay in delivery does not confer on you the right to demand cancellation or termination of the order or to refuse to accept delivery of the goods. We shall not liable for any loss or damages whatsoever whether direct or consequential arising from any delay.


14. You authorise us to store goods which we are unable to have delivered to you due to your failure or inability to accept delivery at your expense pending notification from you to deliver them and you undertake to indemnify us for all costs incurred due to the inability to deliver, including but not limited to storage charges, freight charges and demurrage.


15. Goods accepted as returned for credit may incur a restocking fee equal to a percentage of the value of the items returned as indicated on the invoice, but not less than 30%, plus repacking costs if required. Goods will not be accepted for return without prior written authorisation from a Phoeniks manager. Non-stock items will not be accepted as returns.


WARRANTIES


No Implied Warranties


16. You acknowledge that you buy the goods relying solely upon the your own skill and judgment and have not relied upon our skill or judgment in selecting the goods.


17. You make no representations or warranties whatsoever as to the nature or quality of the goods, or their fitness for any purpose, other than the warranties expressly provided for in these terms of trade.


18. Any representations, statements and warranties not expressly contained in these terms of trade and which would otherwise be implied are excluded to the fullest extent permitted by law.


Express Warranties


19. With effect from the effective date, subject to these terms of trade and conditions and the exclusions and exceptions herein, we warrant to you in relation to the goods that for a period of twenty-four (24) months from the effective date:

(a) the goods will be free from any manifest defects in manufacture or workmanship;

(b) the goods will comply with any specifications set out in the order for the goods.


20. The warranties contained herein do not extend to those goods or parts of goods that are routinely replaced in the course of operation and are properly regarded as consumables.


21. The exceptions to the 24 months warranty in clause 18 are:
combi ovens branded MKN and Induction 3-phase branded Adventys, which carry a warranty of 36 months parts and labour,
MKN replacement parts, which carry a 12 months warranty from the date of installation; and all other replacement parts, which carry a 90-day warranty from date of installation.


22. The warranties provided above and the specific remedies set out hereunder in relation to the goods are the only warranties that apply to the goods.


23. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.


24. Subject to any other terms contained in these warranties, if the goods fail to comply with the warranties set out above, we will, if the failure is not a major failure, in our sole discretion, either repair the goods or replace the goods with the same or equivalent goods or refund you the price paid by you for the goods.


25. Subject to the other terms of these warranties, if the goods fail to comply with the warranties above and the failure is a major failure, you may either reject the goods and claim a refund or replacement or repair of the goods or accept compensation for the reduction in value of the goods and/or claim damages for any reasonably foreseeable loss you may suffer.


26. Any goods presented for replacement may be replaced by equivalent or better goods of the same type and similar specifications provided in the order, unless the equivalent or better goods would be unfit for a purpose disclosed by you.


27. If the goods are repaired or replaced under these warranties, the remainder of the warranty period will apply to the repaired or replaced goods.


28. Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired.  Refurbished parts may be used to repair the goods.


LIMITATIONS AND DISCLAIMERS


29. To obtain the benefit of the warranty, you must email us at service@phoeniks.com.au as soon as practicable after you notice a problem with the goods. In addition, small, portable equipment (Carry-In Items) must be delivered to us or our Authorised Service Agent after you have called or emailed us and been given a job number and instructions regarding delivery.


30. To honour the warranty, we (or our Authorised Service Agent) will arrange the following at no cost to you:
in the case of goods that are not Carry-In Items, staff of Phoeniks or our Authorised Service Agent will attend at your premises between the hours of 8am and 4pm Monday to Friday (Normal Hours) to repair the goods and replace defective parts;
in the case of Carry-In Items, we will arrange for the repair of the goods and notify you when they are to be collected.


31. We will charge you for warranty work:
at your premises, where you require it to be performed outside Normal Hours (at penalty rates); and
where you require repairs to Carry-In Items to be undertaken at your premises (call-out and travelling time, but not labour costs, which we will bear).


32. Any other warranties whether oral, written, express or implied not provided for in these terms of trade, or by the local laws of your country are to the fullest extent possible excluded.


33. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.


GENERAL EXCLUSIONS


34. The warranties provided herein will be void and under no circumstances will we be liable to repair, replace, refund or provide compensation for defective or damaged goods where the defect or damage is caused by:

(a) any abuse, misapplication or misuse of the goods;

(b) you or a third party have installed, operated or cleaned the goods otherwise than in accordance with the manufacturer’s instructions and recommendations;

(c) the goods have been repaired, serviced, modified or tampered with in any way by someone who is not qualified to do so and in any manner not complying with the manufacturer’s specifications; or

(d) the goods were not given the recommended yearly maintenance service check-up by our technician or one of our authorized service agents.

(e) the use of the goods where the accessory is not authorised in writing or recommended in writing by us or contrary to our written instructions as to its use, installation and maintenance;

(f) failure to comply with any written instructions, guidelines, standards and codes as to the use, installation, commissioning and maintenance of the goods as provided by us;

(g) any movement or damage to the sub-strata or structure upon which or in which the goods are placed;

(h) accidents or force majeure events outside our reasonable control;

(i) any attempt to change or modify or interfere with the goods following their installation and commissioning, whether by physical means, programming or otherwise;

(j) removal and reinstallation of the goods to a location other than the original installation location, without our express written consent;

(k) failure to adhere to any health and safety instructions provided in writing by us.


LIMITATION OF LIABILITY


35. To the greatest extent permitted by your local law, we will not, under any circumstances, be liable for indirect or consequential loss, including:

(a) loss of profit;

(b) loss of opportunity;

(c) damage to goodwill or reputation;

(d) loss of access to market;

(e) loss of anticipated savings or revenue;

(f) business interruption or production losses.



There may be circumstances in which, pursuant to the Australian Consumer Law, we may be liable for indirect or consequential loss suffered because of a failure to comply with the Australian Consumer Law.


TITLE


36. Title to the goods shall remain with us until such time as we have received payment of the purchase price of the goods and the purchase price of any other goods or services previously or subsequently supplied by us to you, whereupon such title shall pass to you.


37. Notwithstanding delivery and the passing of the risk the goods shall remain our sole and absolute property as full legal and equitable owner until such time as you shall have paid the full amount owing for the goods.


38. Unless otherwise agreed by us, you must identify and store the goods at your premises in a manner that clearly shows that they are our property.


RISK


39. Notwithstanding delivery and the retention of ownership in the goods pursuant to clause 32, all risk in the goods passes to you on delivery.


40. If any of the goods are damaged or destroyed before title in them passes to you, we are entitled, without prejudice to any other rights or remedies under these terms of trade (including the right to receive payment of the balance of the price for the goods), to receive all insurance proceeds payable for the goods. This applies whether or not the price has become payable under the Contract. The production of these terms of trade by us is sufficient evidence of our right to receive the insurance proceeds without the need for any person dealing with us to make further enquiries.


INVOICING AND PAYMENT


41. The invoiced amount for the goods is to be paid by you no later than the date specified in the PO confirmation and/or our invoice ("the due date").


42. Time for payment for the goods is of the essence.


43. Despite the due date for payment we shall be entitled to require payment of the price before or on the delivery date and shall be entitled to withhold delivery until such payment is made.


44. The price will increase by any amount of any GST or other applicable taxes, duties, delivery costs and insurance as set out in the quotation, unless expressly included in any quotation given by us.


45. Cost referred to in clause 40 shall be due on the due date for payment of the price.


46. Where payment is not made by the due date, interest on the amount outstanding shall be payable at the greater of the rate of one per cent above our overdraft rate from time to time, calculated from the due date until payment is made in full.


47. You are liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by us for enforcement of obligations and recovery of monies due by you to us.


48. You authorise us to:

(a) obtain credit reports from credit reporting agencies and other credit providers concerning the your credit worthiness, credit standing, credit history and credit capacity for the purpose of assessing an application by you for credit and your credit worthiness,

(b) to disclose reports and information to other credit providers about the your credit worthiness, credit standing, credit history and credit capacity for the purpose of assessing an application by you for credit and your credit worthiness.


PERSONAL PROPERTY SECURITY ACT


49. You (and for the purposes of clauses 45 - 57 you are the customer and we are the seller) acknowledge and agree that:

(a) these terms of trade constitute a Security Agreement for the purposes of the PPSA;

(b) we as a bailor of the goods have a Security Interest in the goods and in any present or after acquired property that represents proceeds of the goods; and

(c) the Security Interest secures our interest as a lessor or a bailor of the goods under a PPS Lease in respect of the goods held by you at your premises in terms of these terms of trade;

(d) you acknowledge and agree as follows:

(i) that you hereby authorise us to prepare and apply for registration of a financing statement consistent with these terms of trade in order to register your interest in the goods;

(ii) we may at any time register a Financing Statement (or, if relevant, a Financing Change Statement) on the Register in relation to its Security Interest in the goods that may include terms that:

i. describe the seller as the “secured party” and the customer as the “grantor”;

ii. describe the goods supplied by the seller to the customer from time to time pursuant to these terms of trade as collateral in the class of the “other goods” (or in such other class as the seller may reasonably determine is applicable to the goods);

iii. specify that the Security Interest that the seller holds in the goods is PMSI in accordance with item 7 of the table in section 153(1) of the PPSA to the extent that it secures the seller’s interest as a lessor or bailor of the goods under a PPS Lease; and

iv. specifies that the Security Interest affects Proceeds and, in particular all present and after acquired property that represents proceeds of the goods.


50. The seller may register a Financing Statement or Financing Change Statement on the PPSA Register for any period that the seller determines (in its discretion).


51. The Security shall endure for an indefinite period and will survive termination of the contract between the seller and the customer.


52. The seller may register its Security Interest on the Register at any time so long as the seller believes on reasonable grounds that it will become a secured party in relation to the goods including without limitation when the customer signs or otherwise adopts or accepts these terms of trade.


53. A Security Interest in goods created according to these terms of trade will attach to the goods at the time that the customer obtains possession of them and not at any later time.


54. The customer must do anything reasonably required by the seller to enable the seller to register the Security Interest as a PMSI and to maintain that registration.


55. If the seller considers that it has or may have a Security Interest that is not a PMSI in relation to any goods, it may register a Financing Statement in respect of that Security Interest (and that Financing Statement may be in addition to a Financing Statement registered by the seller in relation to a PMSI in the same goods).


56. If the customer fails to pay an amount owing when due or if it fails to perform any of its obligations in connection with the supply of goods and the terms, the customer agrees that the seller shall be entitled to exercise its enforcement rights and remedies as a secured party in accordance with the provisions of the PPSA including (without limitations) the rights contained in section 123 of the PPSA to seize the goods by any method permitted by law.  For these purposes, and without limiting any other rights of the seller under the PPSA as a secured party, the customer further agrees:

(a) upon demand made by the seller, to immediately deliver up the goods to the seller;

(b) irrevocably authorise the seller to enter any premises occupied by the customer in order to search for, retrieve and remove those goods to which the seller has title and which are the subject of a Security Interest as provided for by these terms of trade;

(c) to do all things necessary to immediately facilitate the seller’s access to the customer’s premises and to assist the seller to locate and identify the goods;

(d) to authorise the seller to resell the goods seized and apply the proceeds of sale in payment of any monies that the customer owes it;

(e) that in the event of any inconsistency with the provisions contained in section 123 of the PPSA and the provisions contained in this paragraph, the provision of this paragraph shall prevail.


EXCLUSION OF PPSA PROVISIONS


57. To the extent the law permits:

(a) for the purposes of sections 115(1) and 115(7) of the PPSA:

(i) the seller need not comply with sections 95, 118, 121(4), 125, 130, 123(3)(d) or 132(4); and

(ii) sections 142 and 143 are excluded.

(b) for the purposes of section 115(7) of the PPSA, the seller need not comply with sections 132 and 137(3);

(c) if the PPSA is amended after the date of this document to permit the customer and the seller to agree to not comply with or to exclude other provision of the PPSA, the seller may notify the customer that any of these provisions is excluded, or that that seller need not comply with any of these provisions, as notified to the customer by the seller.


58. The customer agrees not to exercise its rights to make any request of the seller under section 275 of the PPSA, to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section.


EXERCISE OF RIGHTS BY SELLER


59. If the seller exercises a right, power or remedy in connection with this document, that exercise is taken not to be an exercise of right, power or remedy under the PPSA unless the seller states otherwise at the time of exercise.  However, this paragraph does not apply to a right, power or remedy which can only be exercised under the PPSA.


NO NOTICE REQUIRED UNLESS MANDATORY


60. To the extent the law permits, the customer waives:

(a) its rights to receive any notice that is required by:

(i) any provision of the PPSA (including a notice of a verification statement);

(ii) any other law before a secured party or receiver exercises a right, power or remedy; and

(iii) any time period that must otherwise lapse under any law before a secured party or receiver exercises a right, power or remedy.

(b) if the law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period of lapse is one day or the minimum period the law allows to be agreed (whichever it’s the longer).


61. However, nothing in this paragraph prohibits the seller or any receiver from giving a notice under the PPSA or any other law


DEFAULT


62. Each of the following occurrences constitutes an event of default:

(a) you breach or are alleged to have breached these terms of trade for any reason (including, but not limited to, defaulting on any payment due under these terms of trade) and fail to remedy that breach within 14 days of being given notice by us to do so;

(b) you, being a corporation, are subject to:

(i) a winding up application or an order made against you or a meeting being called to consider a resolution for you to be wound up, deregistered or dissolved;

(ii) a receiver, receiver and manager or administrator being appointed under part 5.3A of the Corporations Act 2001 to all or any part of your property or undertaking;

(iii) you enter into a scheme of arrangement (other than for the purposes of restructuring);

(iv) any assignment by you for the benefit of creditors;

(v) any purported assignment by you of your rights under these terms of trade without our prior written consent;

(vi) you cease or threaten to cease conduct of your business in the normal manner.


CONSEQUENCES OF DEFAULT


63. If an event of default occurs, except where payment in full has been received by us, we may:

(a) terminate these terms of trade;

(b) terminate any or all orders and credit arrangements (if any) with you;

(c) claim any payment as due and owing whether or not the time for payment has arrived;

(d) refuse to deliver goods or provide further services;

(e) repossess and resell any goods delivered to you, the payment for which has not been received; or

(f) retain (where applicable) all money paid on account of goods or services or otherwise;

(g) claim interest as provided for in clause 42.


SECURITY AND CHARGE


64. Notwithstanding anything to the contrary contained herein or any other rights which we may have, as security for your indebtedness to us you hereby charge all of your joint and several interests in any real estate and we shall be entitled to lodge where appropriate a caveat over any such real estate owned by you until all payment and other monetary obligations payable hereunder have been met.


LIMITATION OF LIABILITY


65. You hereby indemnify and hold us harmless for:

(a) breach by the customer of the customer’s obligations under these terms of trade;

(b) any act, omission, negligence or default on the part of the customer or its servants, agents or contractors.


AGENCY AND ASSIGNMENT


66. You agree that we may at any time appoint or engage an agent to perform an obligation of ours arising out of or pursuant to these terms of trade.


67. We have the right to assign and transfer to any person all or any of our title, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations we owe to you under these terms of trade.


68. You are not to assign, or purport to assign, any of your obligations or rights under these terms of trade without our prior written consent.


FORCE MAJEURE


69. If circumstances beyond our control prevent or hinder the provision of the goods or any services, we are free from any obligation to provide the goods or services while those circumstances continue. We may elect to terminate this agreement or keep it on foot until such circumstances have ceased. Circumstances beyond our control include but are not limited to, unavailability of materials or components, strikes, lockouts, rights, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems, pandemics or epidemics.


APPLICABLE LAW


70. These terms and conditions shall at all times be governed, construed and interpreted according to the law of the State of Victoria and you hereby irrevocably submit to the jurisdiction of the courts of that State and all courts of appeal there from.




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Phoeniks Terms & Conditions of Sale Issue 009/24