UNLESS OTHERWISE SPECIFICALLY AGREED IN WRITING, ALL ORDERS PLACED WITH THE SELLER FOR SUPPLY OF GOODS AND THE EXTENSION OF CREDIT TERMS TO THE CUSTOMER, ARE AT ALL TIMES SUBJECT TO, AND WILL BE ACCEPTED ONLY ON, THE FOLLOWING TERMS AND CONDITIONS.
“CUSTOMER”, or “you” means the person, firm or company placing an order with INNOVA for the supply of goods or services. “GOODS” means all goods supplied to the Customer by INNOVA.
“GST” means Goods and Service tax
“INNOVA” means Innova International Pty Ltd ABN 54 168 848 493
“PPSA” means Personal Property Securities Act (2009) (Cth) and any regulations made pursuant to it.
“PPSR” means Personal Property Securities Register
“TRADING TERMS” means these Terms and Conditions of Trade.
- Supply and delivery of Goods to a Customer will only be made against an order. Placement of an order by the Customer constitutes an offer to form an agreement with INNOVA, which agreement is formed upon acceptance by INNOVA of an order (“Agreement”).
- All Agreements will be governed by these Trading Terms. These Trading Terms override any inconsistent terms or conditions in any document or communication used by the Customer in relation to the supply of the Goods or any industry practice or earlier course of dealing.
- INNOVA is under no obligation to accept an order and may, at its sole discretion, accept or reject an order at any time prior to loading the Goods for delivery to the Customer. INNOVA may accept the order by: (i) communicating acceptance of the order in writing; (ii) providing an invoice for the Goods; or (iii) by supplying the Goods.
- No order from the Customer may be cancelled or varied except with INNOVA’s consent in writing and on terms which will indemnify INNOVA against all losses.
3. TERMS OF PAYMENT
- Where the Customer purchases Goods on credit from INNOVA,
- payment terms are strictly 30 DAYS from the end of the month in which the invoice is issued by INNOVA.
- INNOVA reserves the right to review or vary the period of credit at any time on 30 days prior written notice to the Customer.
Overdue accounts may be refused further credit.
- any credit limit approved by INNOVA and advised to the Customer must not be exceeded.
- Where the Customer has been given delivery of Goods on credit and is overdue with any payment or if te INNOVA receives any bank or trade references which it regards as unsatisfactory, INNOVA reserves the right to change the terms of delivery to Cash on Delivery and hold delivery of any Goods until it receives payment of all amounts due to it or is satisfied with the financial position or status of the Customer. INNOVA reserves the right to charge interest on all accounts outstanding for 30 days or over, at a commercial rate per annum.
- Any expenses, costs or disbursements incurred by INNOVA in recovering any outstanding monies including bank fees or charges, dishonour fees, legal costs and expenses, agent’s fees, or debt collection fees and/or costs must be paid by the Customer.
- If the Goods are re-sold by the Customer, the Customer must hold such part of the proceeds of sale as represents the invoice price of the Goods in a separate identifiable account as our beneficial property and pay such amount to us on request.
- A service fee may be applied to any payment made by way of a credit card.
4. SUSPEND SUPPLY
- INNOVA reserves the right at all times to suspend the supply of further Goods on credit to the Customer without having to give reasons for its action to the Customer or its agents, and demand full settlement of all transactions forthwith.
- INNOVA reserves the right to immediately cancel any order or suspend any delivery without incurring any liability to the Customer if the Customer is in default of payment or if the Customer becomes bankrupt, goes into liquidation, makes any composition or scheme of arrangement with its creditors, has an administration, receiver and manager appointed over the whole or any part of its assets or business, if any meetings of creditors or shareholders is called for any of those purposes or it suffers any similar actions in consequence.
If the Customer defaults in payment, commits an act of bankruptcy or, being an incorporated company, passes a resolution for winding up, except for the purpose of reconstruction or a court makes an order to that effect or a receiver is appointed to manage the affairs of the company, INNOVA reserves the right to seek reimbursement from the Customer, for the recovery of all associated costs deemed reasonable.
- INNOVA will use all reasonable endeavours to meet requested delivery times, but all delivery times made known to the Customer are estimates only and under no circumstances will INNOVA be liable for any loss, damage or delay occasioned to the Customer or its customers arising from non-availability, late delivery, non-delivery or late installation of the Goods.
- INNOVA may at its option and with prior written notice to the Customer, deliver the Goods to the Customer in any number of instalments unless there is agreement to the effect that the Customer will not take delivery by instalments.
- It is the Customer’s responsibility to inspect all Goods upon delivery and to notify INNOVA by no later than 7 days from the date of delivery of the Goods if the Goods do not match the description or quantity in the order. INNOVA shall not in any circumstances be liable for any loss or damage to Goods in transit. INNOVA will render the Customer such assistance as may be necessary to press claims on carriers provided the Customer will have notified INNOVA and the carriers in writing and lodged a claim on the carrier within 7 days of delivery.
- Any claim for short delivery, or discrepancies on invoices, must be made to INNOVA in writing within 7 days of delivery.
- INNOVA may charge for delivery and handling at rates dependent on distance, weight and volume of Goods supplied.
- The Customer must make all arrangements necessary to accept delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to accept delivery of Goods as arranged, then INNOVA shall be entitled to charge a reasonable fee for redelivery plus storage fees from the date the Goods were tendered for delivery until the date delivery is accepted if the delay is more than 24 hours.
- It is the Customer’s responsibility to inspect all fabrics delivered to them and confirm:
- the fabric supplied is the correct product, colour, width and the quantity supplied is the same as has been ordered.
- the colour of Goods supplied is the same as the ordered colour;
- Fabric production batch variations may occur however this would be within accepted industry tolerances.
INNOVA accepts no responsibility for fabric issues once the fabric has been cut by the customer. Subject to clause 15, fabrics that have been cut are unable to be returned to INNOVA for credit.
7. RISK & PROPERTY
- The risk in the Goods supplied by INNOVA to the Customer shall pass to the Customer or his agent or to a carrier commissioned by either the Customer or INNOVA when the Goods are loaded onto the carrier for dispatch to the Customer and delivery shall be taken to be effective when the Goods have been delivered.
- Property (title) in these Goods does not pass to the Customer until the Customer has paid for the Goods in full to INNOVA.
- INNOVA hereby agrees to allow the Customer to deal, sell or trade with the Goods on the normal course of business and for the
Customer to retain the sale proceeds of such sale or dealing provided the Customer adheres to these Trading Terms. In the event of the
Customer defaulting in any of these Trading Terms including the payment of any monies due to INNOVA under any Agreement, then INNOVA shall have the right (without giving notice) to retake possession of any Goods supplied to the Customer and the Customer hereby authorises and allows INNOVA or its representative, servant, agent or employee to enter the premises upon which the Goods are housed or stored for the purposes of retaking possession of same and INNOVA shall not be liable for any costs, losses, damages, or any other monies or losses suffered by the Customer as a result of INNOVA retaking possession of the Goods.
8. SECURITY / CHARGE OVER PERSONAL PROPERTY
- In consideration of the supply of Goods on credit to the Customer by INNOVA and in order to better secure to INNOVA all monies payable or to become payable to it pursuant to these Terms, the Customer:
- charges in favour of INNOVA all of its right title and interest in any and all Goods supplied by INNOVA to it on credit and which have not been paid for and all Proceeds (including but not limited to sale proceeds and an account for such monies) with the amount of the monies owing for such Goods; and
- charges in favour of INNOVA all its right title and interest in any and all of its present and after acquired personal property and all Proceeds (including but not limited to sale proceeds and an account for such monies) with the amount of its Secured Indebtedness to INNOVA.
- The Customer undertakes to keep:
- any Goods supplied by INNOVA separate from other Goods so that they can be identified as the Goods supplied by INNOVA
- any proceeds in a separate account so that they are identifiable as proceeds arising from a dealing with the charged personal property referred to herein
- records in relation to any receivables account identifying them as Proceeds arising under clause 8.
9. PERSONAL PROPERTY SECURITIES REGISTER
- INNOVA and the Customer acknowledge that these Trading Terms constitute a Security Agreement and give rise to Security Interests in favour of INNOVA.
- To the extent that the Security Interest arising under clause 8(a) of these Terms secures payment of the purchase price, the Security
Interest gives rise to a Purchase Money Security Interest (PMSI) and falls within the PPSA classification of “Other Goods”
- The Security Interest arising under clause 8(a) of these Terms is a security interest that falls within the PPSA classification of “Other Goods”.
- INNOVA and the Customer acknowledge that INNOVA, as Secured Party, is entitled to register its Security Interests under these Terms on the PPSA Register as Collateral.
- The Customer 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, as Grantor, to INNOVA
- The Customer agrees that nothing in sections 130 to 140 of the PPSA will apply to these Terms or the Securities under these Terms.
- The Customer waives to right under the PPSA to receive notice of removal of an Accession under section 95; receive notice of an intention to seize Collateral under section 123; object to the purchase of the Collateral under section 129; receive notice of disposal of Collateral under section 130; receive a Statement of Account if there is no disposal under section 132 (4); receive a Statement of Account under section 132 (3)(d) following a disposal showing the amount paid to other Secured Parties and whether Security Interest held by other Secured Parties have been discharged.
- The Customer agrees to indemnify INNOVA on demand for all costs and expenses, including legal costs and expenses associated with the registration or amendment of discharge of any Financing Statement registered by or on behalf of INNOVA.
- Prices quoted in INNOVA’s published price list or by a representative of INNOVA are subject to change without notice and are not binding on INNOVA. Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rates of wages, costs of materials and other charges affecting the cost of supply or production ruling on the date it is made and any alterations thereto either before acceptance of or during the currency of the contract may be made without notice and will be to the Customer’s account. All Goods are charged at the applicable price ruling on the date the Goods leave INNOVA for delivery to the Customer.
- Prices quoted in INNOVA’s published price list or by a representative of INNOVA are exclusive of GST.
11. SPECIFICATIONS, etc
The colours, description and illustrations contained in INNOVA’s website, catalogues, brochures, pricelists and other advertising matter are representative only. Actual colours on finished products may vary from those displayed; and colour, weights and pack ratios may vary from those shown and any variation will not form grounds for any claim against INNOVA.
12. RETURN OF GOODS
Subject to clause 15 and to the maximum extent permitted by law:
- The Customer acknowledges and agrees that INNOVA will not accept returns without prior authorisation. INNOVA will not be under any obligation to accept Goods returned by the Customer and will do so only on items to be agreed in writing in each individual case.
- Except where Goods are faulty, no return of Goods or refunds will be considered by INNOVA unless requested within 7 days of delivery of the Goods.
- INNOVA reserves the right to recover all freight or cartage costs and may charge a handling charge, re-stocking charge where Goods are accepted and cancellations of order has not been notified in writing at least 30 days prior to delivery.
- Any claims to be made by the Customer arising out of the supply of Goods which the Customer considers are faulty must be made in writing within 7 days after discovery by the Customer of the cause giving rise to the claim.
- INNOVA shall have the right, at any time within 30 days after receipt of the claim or complaint, to inspect the Goods the subject of the claim. If the Customer disposes of such Goods or any part thereof within the 30-day period, except with the written consent of INNOVA, all claims in respect of the Goods so disposed of shall be deemed to have been waived by the Customer.
14. EXCLUSIONS AND LIMITATION OF LIABILITY
- INNOVA only accepts liability to the Customer in connection with the supply of Goods and any other agreement arising out of or in connection with their subject matter to the extent expressly provided in these Trading Terms. INNOVA excludes any other liability INNOVA might otherwise have to the Customer (whether based in contract, tort (including negligence), statute or otherwise).
- INNOVA accepts liability to the Customer to the extent that INNOVA has acted fraudulently or in wilful default of the Trading Terms. INNOVA accepts liability to the Customer under the Competition and Consumer Act 2010 (Cth) and other laws, where not to do so would be illegal, or would make any part of the Trading Terms void or unenforceable. Subject to clause 15, if INNOVA is liable for any non-excludable conditions, warranties or guarantees, where permitted by law to do so, INNOVA's liability is limited to (at INNOVA’s option) replacing the relevant Goods or paying the Customer the cost of doing so.
- INNOVA's maximum liability to the Customer for any loss the Customer suffers or incurs in connection with these Trading Terms or any other agreement arising out of or in connection with their subject matter (whether based in contract, tort (including negligence), statute or otherwise) is, to the extent permitted by law, limited to a maximum amount equal to the amount the Customer has paid to INNOVA for the relevant Goods pursuant to these Trading Terms.
15. AUSTRALIAN CONSUMER LAW
- If the Customer is a Consumer under the Australian Consumer Law (ACL), nothing in these Trading Terms is intended to remove the Customer’s rights under the ACL, including to statutory guarantees that may apply to Goods and services supplied by INNOVA.
- If the Customer is a Consumer (as defined under the ACL) and any of the goods supplied by INNOVA are not goods of a kind ordinarily acquired for personal, domestic or household use or consumption, the Customer agrees that INNOVA’s liability for a failure to comply with a guarantee under the ACL in relation to those goods (other than under sections 51 (title), 52 (undisturbed possession) and 53 (undisclosed securities) of the ACL) is limited to, at the option of INNOVA, one or more of the following: (i) the 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.
- If the Customer is a Consumer (as defined under the ACL) and any of the services supplied by INNOVA are not services of a kind ordinarily acquired for personal, domestic or household use or consumption, INNOVA’s liability for a failure to comply with a guarantee under the ACL in relation to those services is limited to, at the option of INNOVA: (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again.
- Unless otherwise expressly notified to INNOVA in writing, the Customer warrants that the Goods it acquires from INNOVA are obtained for: (i) the purpose of resupply; or (ii) for the purpose of using them up or transforming them in the course of a process of production or manufacture; or (iii) for the purpose of using them up or transforming them in the course of repairing or treating other goods or fixtures on land.
- If the Customer resupplies the Goods imported by INNOVA to a Consumer (as defined under the ACL), the Customer must limit its liability to the Consumer on terms similar to those set out in clause 15.b. If such goods are not goods of a kind ordinarily acquired for personal, domestic or household use or consumption, Customer acknowledges that INNOVA’s liability to indemnify the Customer under section 274 of the ACL in respect of such goods is expressly limited to a liability to pay the Customer an amount equal to the lowest of: (i) the cost of replacing the goods; (ii) the cost of obtaining equivalent goods; or (iii) the cost of having the goods repaired.
- INNOVA does not supply the Goods to Customers for use in or for the purpose of re-supply to North America or Canada (‘Prohibited
Locations’) and does not provide any warranties or guarantees in respect of Goods used in or re-supplied to the Prohibited Locations. The Customer expressly acknowledges and agrees that if it uses the Goods in or re-supplies the Goods to the Prohibited Locations, or re-supplies the Goods to any person or business who is likely to re-supply the Goods to the Prohibited Locations, INNOVA expressly excludes all liability in respect of such use or re-supply and the Customer agrees to indemnify and keep indemnified INNOVA against all liability, loss, costs, charges and expenses suffered by INNOVA in connection with any claim or demand made by a third party against INNOVA which relates to the use of the Goods in, or re-supply of the Goods to, the Prohibited Locations.
17. NOTIFICATION OF CHANGE IN OWNERSHIP
The Customer shall no later than 14 days prior to any proposed changes of ownership, change in Registered Particulars, alteration, addition to the shareholding or directorship, notify INNOVA in writing of the proposed change, and further, the Customer shall notify INNOVA of any major change, alteration or addition to the Customer’s internal structure and shall provide full details of the proposed change, alteration or addition, to INNOVA and the Customer shall be liable for any Goods supplied by the Customer after such change, alteration or addition unless INNOVA have acknowledged written acceptance of the intending change, alteration or addition.
18. INTELLECTUAL PROPERTY
- All applicable rights in copyright, patents, trademarks, design, trade secrets and other intellectual property rights in the Goods including any plans, designs, drawings or specifications in or relating to the Goods regardless of its type or form are and will remain the property of INNOVA or its licensor, and are protected by all relevant Australian and international copyright, design, patent and design laws.
- As the name “INNOVA” and other logos and trademarks used by INNOVA may be registered trademarks it is necessary that written permission be obtained by the Customer from INNOVA or its agents, before INNOVA’s name or logo or any product name, logo or trade mark can be reproduced in any form of advertising, signage or promotion.
- Some or all of the information concerning the Customer, and any guarantor who has provided a guarantee in relation to a credit application (“Guarantor”), may be Personal Information within the meaning of the Privacy Act 1988 (Cth).
- You agree that INNOVA may from time to time obtain from, and provide to, third parties information about your creditworthiness and payment record, or the credit worthiness of any Guarantor. You agree that INNOVA may use and disclose, for purposes of assessing any credit application, monitoring credit worthiness, collecting overdue accounts and assessing any order submitted with INNOVA, any personal information INNOVA holds about the your credit arrangements or credit worthiness. INNOVA may contact trade referees, other providers of credit to the Customer and other persons at any time for these purposes.
- If the Customer or any Guarantor defaults in their payment obligations to INNOVA, INNOVA may disclose all or any information relating to the Customer's account to a collection agency for the purpose of recovering outstanding monies.
20. FORCE MAJEURE
INNOVA will not be liable for failure to perform, and will be relieved of, its obligations under these terms occasioned by force majeure including (but without limiting the generality of the foregoing) war, legislation, civil commotions, fire, floods, explosions, acts of God, strikes, lockouts, sabotage, embargoes, labour employment difficulties, accidents, breakdowns, restrictions, prohibitions or any action by any government or quasi-government authority, and any other causes outside the reasonable control of INNOVA.
- The person signing any purchase order or request on behalf of the Customer warrants that they have full authority and power to order the Goods and bind the Customer and to personally guarantee the performance of all of the Customer’s obligations under these terms.
- These Terms shall be governed by and interpreted according to the laws of Victoria and Innova International and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
From time to time, amendments may be made to these Trading Terms, INNOVA will undertake to provide you with the updated version of the Trading Terms via email or mail and any future orders of INNOVA Goods and/ or services will constitute acceptance of the updated terms.