In these Terms:
"ACL" means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;
"Anticipated Installation Date" means the anticipated date for the delivery of any goods, the installation of the goods and commencement of the services;
"Agreement" means any agreement for the provision of goods or services by Omnia to the Customer;
"consumer" is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if the Customer is a consumer under the Agreement;
"Customer" means any customer or purchaser who signs Omnia’s Credit Application Form and, in doing so, agrees to be bound by the Terms and Conditions;
"goods" means goods supplied by Omnia to the Customer under these terms and conditions;
"GST" means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;
"PPSA" means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;
"Price" means the price of the Goods exclusive of delivery costs and GST;
"Quote" means any written quote provided by Omnia to the Customer and includes the installation of any goods;
"Omnia" means Omnia Specialities Australia Pty Ltd (ACN 102 717 019);
"services" means services supplied by Omnia to the Customer in connection with the goods;
"site" means the site where the goods are to be delivered and the services performed; and
"Terms" means these Terms and Conditions of Trade.
| 2.1 | Unless otherwise agreed by Omnia 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). |
| 2.2 | Any quotation provided by Omnia 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 |
| 2.3 | The Terms may include additional terms in Omnia’s Quote, which are not inconsistent with the Terms. |
| 2.4 | An Agreement is accepted by Omnia when Omnia accepts, in writing or electronic means, an offer from the Customer or provides the Customer with the goods or services. |
| 2.5 | Omnia has absolute discretion to refuse to accept any offer. |
| 2.6 | The Customer must provide Omnia with its specific requirements, if any, in relation to the goods and services. |
| 2.7 | Omnia may vary or amend these Terms by written notice to the Customer at any time. Any variations or amendments will apply to orders placed after the notice date. |
| 3.1 | The price quoted by Omnia or stated in Omnia’s price list is effective as at the date on which the price is quoted and is subject to alteration without notice. |
| 3.2 | Unless otherwise agreed in writing by Omnia, the price payable by the Customer will be the price prevailing at the time of order by the Customer. |
| 3.3 | if the Customer requests any variation to the Agreement, Omnia may, at its discretion: (a) increase the price to account for the variation; or (b) cancel the Agreement and provide a revised Quote for the goods or services. |
| 3.4 | Where: (a) there is any change in the costs incurred by Omnia in relation to goods or services; or (b) there is any change required as a result of the final layout and configuration of the site; Omnia may vary its price to take account of any such change, by notifying the Customer. |
| 4.1 | Unless otherwise agreed in writing: (a) Subject to 4.1(b), the terms of payment are net cash within 30 days from the date of Omnia’s invoice; (b) Omnia reserves the right to demand cash payment upon any order, delivery or collection of goods. |
| 4.2 | Payment by cheque is not deemed made until the proceeds of the cheque have cleared. |
| 4.3 | Payment terms may be revoked or amended at Omnia’s sole discretion immediately upon giving the Customer written notice. |
| 4.4 | The time for payment is of the essence. |
| 4.5 | The Customer must make the payment in full without any deduction or set-off. |
| 5.1 | If the Customer defaults in payment by the due date of any amount payable to Omnia, then all money which would become payable by the Customer to Omnia at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Omnia may, without prejudice to any of its other accrued or contingent rights: (a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 2% for the period from the expiry of 30 days after the date of Omnia’s invoice until the date of payment in full; (b) at any time set a minimum invoice value; (c) charge the Customer for, and the Customer must indemnify Omnia 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; (d) cease or suspend supply of any further goods or services to the Customer; (e) by written notice to the Customer, terminate any uncompleted contract with the Customer. |
| 5.2 | Clauses 5.1(d) and 5.1(e) may also be relied upon, at Omnia’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; (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. |
| 6.1 | Until Omnia 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 Omnia by the Customer: (a) title and property in all goods remain vested in Omnia and do not pass to the Customer; (b) the Customer must hold the goods as fiduciary bailee and agent for Omnia; (c) the Customer must keep the goods separate from its goods and maintain Omnia’s labelling and packaging (where applicable); (d) the Customer must hold the proceeds of sale of the goods on trust for Omnia 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, Omnia may without notice, enter any premises where it suspects the goods are and remove them, and for this purpose the Customer irrevocably licences Omnia to enter such premises and also indemnifies Omnia from and against all costs, claims, demands or actions by any party arising from such action. |
| 7.1 | Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms. |
| 7.2 | For the purposes of the PPSA: (a) terms used in clause 7 that are defined in the PPSA have the same meaning as in the PPSA; (b) these Terms are a security agreement and Omnia has a Purchase Money Security Interest in all present and future goods supplied by Omnia to the Customer and the proceeds of the goods; (c) The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and (d) the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by Omnia on the Personal Property Securities Register. |
| 7.3 | The security interest arising under these Terms attaches to the goods when the goods are collected or dispatched from Omnia’s premises and not at any later time. |
| 7.4 | Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA. |
| 7.5 | Omnia and the Customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms. |
| 7.6 | 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 Omnia will apply only to the extent that they are 11.3 mandatory or Omnia agrees to their application in writing; and (b) where Omnia has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply. |
| 7.7 | The Customer must immediately upon Omnia’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 Omnia to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Omnia may at any time require. |
| 7.8 | Omnia may allocate amounts received from the Customer in any manner Omnia determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by Omnia. |
| 7.9 | 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. |
| 8.1 | The Customer must: (a) be responsible for providing clean, safe and proper access to the site; and (b) ensure compliance with all the relevant Occupational Health and Safety laws and regulations. |
| 8.2 | The Customer warrants that it is the owner of the site, or it is authorised to request the services be performed at the site. |
| 8.3 | At no time does Omnia take or accept any ownership of or responsibility for the site. All risk and liability in and relating to the site remains with the Customer at all times. |
| 8.4 | Omnia may refuse to provide the goods until all site requirements pursuant to clause 8.1 have been complied with. |
| 9.1 | The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the goods being delivered to the Customer or taken from Omnia’s premises. |
| 9.2 | The goods are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods. |
| 9.3 | 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, installation or possession of any of the goods sold by Omnia, unless recoverable from Omnia on the failure of any statutory guarantee under the ACL. |
| 10.1 | Any period or date for delivery of goods or provision of services stated by Omnia is an estimate only and not a contractual commitment. |
| 10.2 | Omnia will use its reasonable endeavours to meet any estimated dates for delivery of the goods but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date. |
| 10.3 | If Omnia cannot complete the services by any estimated date, it will complete the services within a reasonable time.. |
| 11.1 | Subject to clause 11.7, Omnia will arrange for the delivery of the goods to the Customer. |
| 11.2 | 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 to the Customer to the point of delivery. |
| 11.3 | The Customer shall not be relieved of any obligation to accept or pay for the goods by reason of any delay in supply. |
| 11.4 | Omnia may make part delivery of goods or provision of services and Omnia may invoice the Customer for the goods or services provided. |
| 11.5 | The Customer indemnifies Omnia against any loss or damage suffered by Omnia, its sub-contractors or employees as a result of delivery, except where the Customer is a consumer and Omnia has not used due care and skill. |
| 11.6 | If delivery is attempted and is unable to be completed the Customer is deemed to have taken delivery of the goods. The Customer is liable for storage charges payable monthly on demand. |
| 11.7 | If agreed that the Customer will collect the goods: (a) the Customer must collect the goods with 7 days of being advised they are ready; (b) if the Customer does not collect the goods within this time, the Customer is deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand. |
| 12.1 | Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods or services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure. |
| 12.2 | Subject to s68A of the Act, Omnia’s liability for a breach of a condition or warranty that cannot be excluded is limited at Omnia’s option to the replacement or rectifying the goods or of acquiring equivalent goods. |
| 12.3 | If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer's rights or remedies against Omnia for failure of a statutory guarantee under the ACL. |
| 12.4 | If the Customer on-supplies the goods to a consumer and: (a) the goods or services are not of a kind ordinarily acquired for personal, domestic or household use, then the amount specified in section 276A(1) of the ACL is the absolute limit of Omnia’s liability to the Customer; (b) the goods or services are of a kind ordinarily acquired for personal, domestic or household use, payment of any amount required under section 274 of the ACL is the absolute limit of Omnia’s liability to the Customer; howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party. |
| 12.5 | If clause 12.3 or 12.4 do not apply, then other than as stated in the Terms or any written warranty statement Omnia is not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party. |
| 12.6 | Omnia is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL. |
| 12.7 | The Customer acknowledges that it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Omnia in relation to the goods or services or their use or application. |
| 12.8 | Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified. |
| 13.1 | If Omnia 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. |
| 13.2 | In the event of such cancellation as referred to in 13.1, the Customer shall have no claim against Omnia for any damage, loss, cost or expense. |
| 14.1 | Subject to clause14.2 and 14.4, Omnia will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless the Customer notifies Omnia with full details and description within 10 days of delivery otherwise the Customer is deemed to have accepted the goods. |
| 14.2 | When any shortages, claim for damaged goods or noncompliance with the Agreement specifications is accepted by Omnia, Omnia may, at its option, replace the goods, or refund the price of the goods. |
| 14.3 | Subject to clause 14.4, Omnia 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 Omnia; (c) have been altered in any way; (d) have been used; or (e) are not in their original condition and packaging. |
| 14.4 | If the Customer is a consumer, nothing in this clause 14 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL. |
| 15.1 | Omnia 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, Omnia may suspend or terminate the Agreement by written notice to the Customer, whereupon all money due to Omnia shall be paid immediately. |
| 16.1 | The law of Victoria from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts. |
| 16.2 | Omnia’s failure to enforce any of these Terms shall not be construed as a waiver of any of Omnia’s rights. |
| 16.3 | 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. |
| 16.4 | A notice must be in writing and handed personally or sent by email, facsimile 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 facsimile or email are deemed received on confirmation of successful transmission. |
| 16.5 | The Customer must comply with the National Privacy Principles in connection with any personal information supplied to it in connection with this Agreement. |