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Terms

The following terms and conditions apply to and form part of the agreement between Enikom Pty. Ltd trading as Jandy’s Innovative Sports systems Aust. and the customer listed for the sale of any goods supplied by us. These trading terms replace all previous trading terms and are the governing terms of our relationship with you.

1. PRICING & CONDITIONS

No price list, range book or catalogue, quotation given by Jandy’s shall constitute an offer to supply goods to you. Any order for the supply of goods must be in writing and shall not be binding upon Jandy’s until accepted by Jandy’s in writing by the issue of an order confirmation which will detail all prices, and the part of the order accepted by Jandy’s, pricing and the proposed delivery date of stock ordered. the order confirmation may list suggested substitution of styles not being produced or unavailable.

If any movements occur after the date of acceptance in the relevant exchange rates, duty rates, tariffs, quotas or freight rates or any other factors beyond our control, we reserve the right to amend the prices to include a reasonable allowance for any movement in such rates, tariffs, quotas, freight rates or other factors and all orders shall be subject to such price alterations up to the date of delivery of goods.

2. PRICES LISTED ARE EX GST

All prices given are quoted EXCLUDING GST. Our price list identifies the price excluding GST and also the inclusive GST price. All GST charges are to account of the customer and shall be calculated using the method and rates of assessment in force at the time of delivery.

3. DELIVERY

All goods are dispatched free on board from our warehouse unless prior arrangements have been made in writing. All goods will be sent with our nominated freight carrier and the consignment note number and cost of freight will be added to each invoice sent with the goods. The goods will be delivered during the delivery window as advised on the order confirmation.

All orders sent will be accompanied by an invoice which will list the goods supplied. The goods are supplied in accordance with these trading terms and conditions which have been accepted by you evidenced by your signature which signifies your acceptance of these terms and that you have read and understood the terms and conditions of supply.

We may send part orders on a pro rata basis. We will not be liable for any loss or damage (including consequential loss or damage) arising from the delay in delivery or failure to deliver or from delivery of defective products. Shortages or packing mistakes must be advised to us in accordance with Clause 9. Goods shall not be returned without prior approval from Jandy’s and in accordance with the return procedure set out in Clause 8.

4. RISK

The goods being delivered shall be at your risk after delivery has been made, or has deemed to have been effected, notwithstanding that delivery of the goods may be staggered or that you have not signed a receipt for the goods.

5. RIGHT OF RESALE

To protect the distribution and retail channel in which all goods bearing the trade marks owned by Jandy’s are distributed it is agreed that you will not dispose of goods other than through retail sales through the address listed as the customer’s place of business or via an internet website specifically linked to the customer name and place of business.

You agree not to resell the goods to other retail customers and will not sell or dispose of goods to any retailer in another country and you agree to protect our trademarks and brands by not being involved in the parallel importation of goods made for other regions outside of Australia which bear the trademarks owned or under our exclusive distribution without first obtaining our written consent.

6. PAYMENT

Unless otherwise agreed all goods will be supplied on a COD basis. The extension of credit to you will be at our sole discretion and unless otherwise stated or agreed where extended terms of payment shall be thirty days from invoice date. In the event that an application by you is made in the name of a limited or Pty limited company then no credit will be granted until a personal guarantee is signed by the directors of the company in which case the guarantors will become, in the event of a default per the circumstance as listed in Clause 11 becomes, personally liable for the debt owing by you.

Until credit is granted we may withhold delivery of any order until you have paid for them in which event payment maybe requested prior to delivery.

7. ACCOUNT CHARGES AND ADMINISTRATION FEES

Supply of orders on credit and the extension of credit will be rejected on all overdue accounts. A service charge of 1.75% pr month will be charged on all overdue accounts without exception. In addition to the service charge an account keeping fee of AUD 10.00 per month will be charged on all accounts with invoiced and transactions outside of the trading terms., All payments whether or not purporting to be made for some specific reason may be applied in our absolute discretion firstly, in full payment of all service charges identified in this Clause 7 and secondly, to the longest outstanding invoiced amount.

8. RETURNS

You cannot return goods unless a return authorisation number has been obtained. The return authorization is only for the tracking, return and assessment of the reason for return. The correct procedure for the return of goods is as follows:-

(i) Contact us by phone/fax/email to obtain a return authorization number for the respective return of assessment;

(ii) We will email/fax to you a return number and form for completion which must be sent back with the item so that we can clearly see what is being returned and track the parcel effectively to enable the fast processing of the return request;

(iii) Upon receipt we will inspect the goods and repair the goods or replace the goods at our discretion in accordance with our warranty obligations set out in Clause 14 and 15.

(iv) If you have received goods that have been incorrectly sent to you or you are sending back shop ready stock all packing, swing tags, bar code identifications and poly bags in which the good arrived must be returned. In the event that we have to retag, pack or swing tag the goods, remove store price stickers which may still being affixed to swing tags we may charge you and administration fee of $2.00 per item as a handling charge.

9. FAULTY GOODS

You must notify us of any shortages in any delivery of goods within 48 hours after receipt. Failure to do so may result in the loss of any rights you have against us for shortages.

You must also notify us within seven (7) days of each delivery of goods of any matter or thing not in accordance with the condition of the order other than due to shortages, Failure to do so will mean the good have been delivered and you shall be bound to accept and pay for same.

10. RETENTION OF TITLE

You agree that we retain ownership in the goods that will be delivered from time to time and which will be identified on invoices dispatched with each delivery. Ownership in the goods delivered shall not pass until payment in full has been received in respect of all goods delivered together with any other sums accruing such as interest which are owed by you and as such you agree and acknowledge that:-

(a) You hold the goods as bailee for and on our behalf;

(b) As between you and us we retain full title and ownership in all goods supplied to you;

(c) for such time as you retain possession of the goods you must insure the goods for the full purchase price and ensure that they are properly maintained in the condition in which they were delivered and shall make good nay damage or deterioration.

You agree that you may only sell the goods in the ordinary course of your business as our fiduciary agent and that when you sell such goods on this condition you do so as trustee for and on our behalf but only to the extent that those proceeds received do not exceed the total invoice value of the goods on hand subject to this retention of title.

11. DEFAULT

11.1 In the event that:-

(a) we consider that there is a material risk that you will be unable to pay any amount owing to us and we give you notice of this opinion; or

(b) you fail to make due payment on any invoice supplied by us by the due date; or

(d) you are a company and has an administrator, manager, trustee, official manager or receiver, liquidator or any other person authorised to enter into possession or control of you; or

(e) has a judgement entered against you in any court; or

(f) a secured creditor seizes or takes possession of any collateral asset in your possession as a security obligation under a financing contract; then

11.2 We may without prejudice to any other rights we may have do any or all of the following;-

(a) Seek the repayment of all monies accrued and owing by you and such amounts will become immediately due and payable without any demand being required;

(b) Withdraw credit facilities that my have been extended to you;

(d) In respect of goods delivered, enter onto your premises with full authority from you to recover and resell the goods for our own benefit;

(e) Suspend and or terminate the performance of any other order confirmations that you may have with us.

In the unlikely even that any of the above occurs all rebates, discounts and like allowances allowed in respect of nay unpaid invoices are cancelled and if any amount has been paid are repayable and the balance of amounts owing shall be calculated as if the cancelled rebates, discounts and like allowances never applied and in addition if it becomes necessary for us to retain outside legal services to assist with the collection of the account, such charges will be invoiced to you and you will also be responsible for all charges and costs incurred in the collection of the account in addition to all other costs.

12. SECURITY INTEREST – PERSONAL PROPERTY SECURITIES ACT (Cth) 2009 (PPSA)

You acknowledge that these terms and conditions constitute a security agreement for the purposes of the PPSA. A security interest is taken in all goods previously supplied by us and that may be supplied in the future securing the performance of your obligations under these trading terms and conditions.

You must not create a security interest over or in respect of your rights in our goods supplied other than the security interest arising under these trading terms and conditions.

You agree to us completing and registering a financial statement in respect of the goods and you will do all things and provide all information necessary to enable us to perfect our security interest in the goods and complete any financing change statement.

To the extent permitted by law you waiver any rights you have to receive notices under ss121 (4), 130, 132(4) and 135 of the PPSA or reinstate a security agreement following termination under s 143.

You also agree to waive any rights you may have to receive a verification statement as defined in the PPSA.

The financial statement will be registered and remain in force during the terms of our trading relationship.

13. PRIVACY ACT

You agree that we may obtain from a credit reporting agency a credit report containing personal credit information about you and the guarantor in relation to any credit provided by us.

You agree that we may exchange information about you with those credit providers named in the application for a credit account or named in a consumer credit report issued by a reporting agency for the following purposes:-

(a) To assess an application by you for credit;

(b) Analysing, verifying and/or checking your credit, payment and or status in relation to the provision of credit and goods from other suppliers;

(d) To obtain a credit report about the customer;

(e) Allow a credit reporting agency and us to create or maintain credit information containing information about you.

14. WARRANTIES

Where our goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption our liability arising from consumer guarantees in the Competition and Consumer Act 2010, at our election to either:-

(a) Repairing the goods or agreeing to pay the cost of repair;

(b) Replacing the goods or supplying equivalent goods at the cost of doing so.

We will not be liable to the final consumer or to you where the goods do not meet the consumer guarantees in the CCA;

(a) due to an act, default or omission of, or representation made by any person other than us or by one of our employees or agents;

(b) due to a cause independent of human control that occurs after the goods have left our control;

(d) In relation to our guarantee of acceptable quality, where the final consumer was ware of, our ought reasonably to have been aware of the flaw in the goods at the time of purchase.

15. CONSUMER WARRANTY AS TO ACCEPTABLE QUALITY

To the extent to which the consumer guarantees contained in the CCA do not apply all warranties, conditions, liabilities, or representations in relation to , inter alia, the quality or fitness of goods sold or provide by us which might otherwise be implied by law are expressly negated and excluded.

We do though warrant that our goods will be free of defects for one year after original purchase against defect in materials and workmanship fair wear and tear accepted. We will repair the defective goods whenever possible. If the item is not able to be repaired or replaced with the same or similar goods of comparable value then we will credit your account. We must receive the item back for assessment under the repair procedure described in these terms so as to assess the item being returned.

16. APPLICABLE LAW

We both agree that the agreement embodied herein is made in the State of Queensland and shall be governed by the laws of the State of Queensland. The parties agree to submit themselves to the jurisdictions of the Courts of the State of Queensland.

If any provision of these terms and conditions shall become invalid, void or illegal or unenforceable the validity existence legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.,

We reserve the right to review these terms and conditions at any time and from time to time. If following review there is to be a change in the terms and conditions the change will take effect from the date on which we notify you of the change.

17. ENTIRE AGREEMENT

These terms and conditions constitute the entire agreement between us unless we notify you in writing of such changes to which we obtain your written consent.

18. WAIVER

We do not waiver our rights power or remedy and if we fail to exercise or delay in exercising our right power and remedies as set out the delay shall not constitute a waiver of our rights.

19. SEVERABILITY

Part or all of any provision of these terms and conditions that is illegal or unenforceable may be severed from these Terms and the remaining clauses will remain in force.