(1) Contract Agreement
(a) These conditions of sale shall apply to all sales and agreements for sale of items of equipment not custom-built.
(b) Catalogues, price lists and other advertising matter as well as tenders or quotations of the Company are merely invitations for an order subject to these conditions.
(c) The giving of an order for Goods shall be conclusive evidence of the Customer’s unqualified acceptance of these conditions as printed notwithstanding anything to the contrary intended by the Customer whether communicated or not.
(d) No contract will result until the Company has confirmed an Order made by the Customer.
(e) If such Order be for items of equipment not normally carried in stock by the Company or if normally carried in insufficient quantity to fulfil such order (herein called “special imports”) no contract will result until the Company has confirmed such order in writing.
(f) Any contract made by the Company will incorporate and be subject to these conditions as printed and any addition to or variation thereof will be binding on the Company only if expressly confirmed in writing by the Company.
(2) Prices, GST, Packing
(a) Prices are exclusive of GST which shall be payable by the Customer at the rate of 10%.
(b) We request our Customers to make their own arrangements for transport of goods from our stores for same day delivery.
(c) When requested we will forward goods to a specified destination, the costs incurred will be charged to the Customer if less than the minimum invoice value.
(d) Prices stated in any of the catalogues price lists or other advertising matter released by the Company are subject to variation without notice and the Company shall be entitled to apply the increased value plus 20 per centum thereof to the next order made by the Customer.
(a) Delivery dates or periods stated in the contract are approximate and unless otherwise stated in writing by the Company dates and periods for delivery are not essential terms of the contract. The Company will make all reasonable endeavours to make delivery by such dates or within such periods and subject thereto may at its option deliver and the Customer shall accept such part of the goods as the Company shall be able to deliver on or about such dates and at or about the expiration of such periods for which the Customer will pay the same proportion of the contract price as the part delivered bears to the whole of the goods agreed to be sold under the contract. Subject to the Company making all reasonable endeavours as aforementioned the Company shall not be held liable for any delay in the delivery of any part of the goods agreed to be sold under the contract however caused.
(b) If the contract expressly or impliedly provides for or permits delivery by instalments then each instalment shall be treated as a separate contract and the Company shall be entitled to withhold delivery of any further instalment until all moneys payable for any delivered instalment have been paid.
(c) The Customer shall accept delivery of the goods within a reasonable time after having been requested by the Company to take delivery and the Customer shall be liable to the Company for any loss occasioned by his neglect or refusal to take delivery and also for a reasonable charge for the care and custody of the goods without prejudice to the rights of the Company where such neglect or refusal amounts to a repudiation of the contract. Goods dispatched by the Company shall be promptly unloaded by the Customer when delivered at the delivery point. The Company shall not be liable for any damage caused to the goods after the same have ceased to rest on the delivery vehicle. Goods retained by the Company in transit or in store owing to delay by the Customer in taking delivery thereof shall be in all respects at the risk of the Customer without property passing to him.
(4) Claims, Returns, Shortages
(a) The description and illustrations in catalogues prices lists and other advertising matter are intended merely to give a general idea of the goods described and illustrated therein and shall not constitute any term of the contract. Performance figures stated in the contract are subject to recognised tolerances. The Company shall not be responsible for the fitness of the goods for any purpose intended by the Customer the selection of the goods for such purpose being the sole responsibility of the Customer.
(b) The Customer shall not be entitled to make any claim for shortage in any delivery unless such shortage shall have been noted by him on the delivery note receipted by him and shall not be entitled to make any claim for damage in transit unless the same shall have been notified to the Company in writing within three days of the receipt of the damaged goods.
(c) Goods returned by the Customer shall remain in all respects at the risk of the Customer until such time as the Company gives notification in writing to the Customer that it has received and accepted the goods whether for replacement refund credit or otherwise and the returning of the goods shall in no way affect the Customer’s liability under the contract which shall be varied only in the manner and to the extent stated in the notification in writing. The Company may at its option refuse to accept the goods or may at its option accept the goods upon such terms and conditions as to refund credit or allowance as it thinks fit. Goods returned other than faulty goods will incur a 15% restocking fee.
(5) Risk and Title
(a) Risk in the goods passes to the Customer on delivery.
(b) Ownership of entitlement to the goods is retained by the Company and shall not pass to the Customer until the Company receives payment in full for the Goods.
(c) Until title and the goods passes to the Customer;
(i) the Customer must hold the Goods as Bailee of the Company and insure the Goods against all risks for their full price from the date of delivery;
(ii) the Company authorises the Customer, in the ordinary course of the Customer’s business to use the Goods or sell them for full consideration provided that the proceeds of such sale or use shall be the property of the Company and the Customer must hold such proceeds on trust for the Company and deal with them as the Company directs. This authority to use or sell the Goods automatically terminates if the Customer breaches these provisions of sale, the Customer becomes insolvent or the Company decides, in its absolute discretion, to revoke such authority.
(iii) upon termination of the authority granted under sub-clause (ii) above, the Company may take possession of any goods for which it has not yet received payment and enter any premises where such Goods may be located.
(iv) the Goods are inventory for the purposes of the PPSA;
(v) the Company retains a security interest in all Gods supplied by the Company to the Customer.
(6) Cancellation of Contract
(a) The Company shall be without prejudice to Condition 3(a) not be liable for any delay in delivery or non-delivery of the goods or any part thereof due to any of the following causes: force majeure, strikes, lock-outs, shortened working hours, shortage of labour or materials, delays in transport, accidents of any kind, any default or delay by any sub-contractor or supplier to the Company, war, political or civil disturbances, the elements or any other cause whatsoever beyond the Company’s complete control. If delivery be prevented or delayed by any of the aforementioned causes then the Company shall be entitled at its option either to cancel the contract so far as unfulfilled or to extend the time for its further performance until such cause or causes cease to operate and if the delivery of the goods or any part thereof is delayed for more than six months and such goods are not special imports as defined in Condition 1 the Customer unless otherwise stated in writing by the Company shall be entitled to cancel the contract so far as unfulfilled but save as foresaid the Customer shall not be entitled to cancel the same.
(7) Customer’s Bankruptcy Liquidation, Non-payment
(a) In the event of bankruptcy liquidation (other than for the purpose of reconstruction or amalgamation only) or insolvency or the appointment of a Receiver of the Customer the prices of all goods delivered shall become immediately due and payable.
(b) In the event of non-payment by the due date of the price or any part thereof the Company shall be entitled either
(c) to treat the contract and further any other contract between the Company and Customer as thereby wrongfully repudiated by the Customer and to recover from the Customer any money then due thereunder and damages in respect of its loss thereby occasioned or
(d) suspend further performance of the contract and any such other contract until the Customer shall have paid all moneys due thereunder.
(e) In the event of the Company treating the contract or any other contract as so repudiated the Company shall be entitled to sell any undelivered goods in whatever state of manufacture and to set off the net proceeds of such sale against the said moneys and damages.
(8) Limitation of Liability
(a) The Company’s liability for breach of any conditions of sale and the Customer’s sole and exclusive remedy in relation to such breaches shall be limited, at the Company’s discretion, to either:
(i) replacing the Goods;
(ii) repairing the Goods; or
(iii) refunding the price paid for the relevant Goods.
(b) The Company shall not in any event be liable to the Customer for any loss of profits or any other consequential loss or damage caused to him by any delay in the delivery or any non-delivery of the goods or any part of them or suffered by the Customer in consequence of any defect in materials or workmanship of the goods or their failure to perform in accordance with any performance figures stated.
(c) Other than the statutory consumer guarantees on products and services which are required to be provided, the Company does not provide any warranties in respect of the Goods.
(9) Payment Terms, Interest Charges
(a) Payment of all invoices are to be made within 30 days of the end of the month in which Goods are supplied, unless otherwise negotiated and confirmed in writing by the Company.
(b) The time within which the Customer is to pay the contract price shall be of the essence of the contract.
(c) The contract price of goods the delivery whereof is intended to be made at the Company’s place of business is payable on the day specified for delivery and if no day is specified, then on the day on which it would have been reasonable for the Customer to have taken delivery whether delivery is taken or not.
(d) The contract price of goods which are to be dispatched by the Company to the Customer or to the order of the Customer is payable on receipt of the Company’s advice that the goods are ready for dispatch.
(e) The contract price of special imports as defined in Condition 1 is payable in the manner and on the day or days specified in the Company’s written confirmation of order.
(f) In any event the contract price shall be payable no later than on the day delivery of the goods is made.
(g) If delivery is made or Goods are dispatched without payment of the contract price having been received by the Company or the contract price has otherwise become payable, the Customer shall make payment thereof no later than on the first day of the calendar month immediately succeeding the month in which the contract price has become payable.
(h) The Customer shall be liable to the Company (without prejudice to its rights against the Goods) to maintain action for the contract price and or for damages to pay in addition to the contract price.
(i) So long as any part of the contract price shall remain unpaid, interest on so much as has been unpaid shall be charged at the rate of 20% per annum computed from the first day on which the contract price became payable.
(j) No interest shall be payable if within thirty days from such day payment of the contract price s received by the Company and the Company has not exercised any of its rights aforementioned within that period.
(10) Personal Property and Security Act (PPSA)
(a) The Customer acknowledges that these conditions of sale constitute a security agreement for the purpose of the PPSA and creates a security interest in all of the Customer’s present and after acquired Goods supplied by the Company.
(b) The Company references to the PPSA in this agreement includes references to amended, replacement and successor provisions or legislation.
(c) The Company may register an actual impending or likely security interest. The Customer may not make any Claim against the Company in respect of any registration even if it is determined that the Company should not have registered a security interest. The Customer must do anything (such as obtaining consents and signing documents) which the Company requires for the purposes of;
(i) ensuring that the Company’s security interest is enforceable effected and otherwise effective under the PPSA;
(ii) enabling the Company to gain first priority or any other priority agreed by the Company in writing for its security interest; and
(iii) enabling the Company to exercise rights in connection with the security interest.
(d) The rights of the Company under this document are in addition to and not in substitution for the Company’s rights under other law and the Company may choose whether to exercise rights under this document, and/or under such other law as it sees fit. To avoid any doubt about it, the Company’s security interest will attach to proceeds.
(e) To the extent that chapter 4 of the PPSA applies to any security interest under this Agreement, the following provisions of the PPSA do not apply and, for the purposes of Section 115 of the PPSA are contracted out of this agreement in respect of all Goods to which that section can be applied:
(i) Section 95 (notice of removal of accession to the extent it requires the Company to give a notice to the Customer);
(ii) Section 96 (retention of accession);
(iii) Section 121(4) (notice to grantor);
(iv) Section 125 (obligations to dispose of retain collateral);
(v) Section 121(4) (notice of grantor);
(vi) Section 125 (obligations to dispose of retain collateral);
(vii) Section 130 (notice of disposal to the extent it requires the Company to give a notice to the Customer);
(viii) Section 129(2) and 129(3);
(xi) Section 132(3)(d) (contents of statement of account after disposal);
(x) Section 132(4) (statement of account if no disposal);
(xi) Section 135 (notice of retention);
(xii) Section 142 (redemption of collateral); and
(xiii) Section 143 (re-instatement of security agreement).
(f) To the extent they apply, the following provisions of the PPSA shall confer rights on the Company;
(i) Section 121 (seizing collateral);
(ii) Section 126 (apparent possession);
(iii) Section 128 (secured party may dispose of collateral);
(iv) Section 129 (disposal by purchase);
(v) Section 134(1) (retention of collateral).
(g) The Customer agrees that in addition to those rights, the Company shall, if there is default by the Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any Goods, not only under those sections but also, as additional rights, under this document and the Customer agrees that the Company may do so in any manner it seems fit (in respect of dealing and disposal by a private or public sale, lease or licence).
(g) The Customer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under Section 157 of the PPSA. This waiver also extends to any verification statement in respect of security interests arising or provided for under security agreements prior to the date of this agreement.
(h) The Company and the Customer agree not to disclose information of the kind that can be requested under Section 275(1) of the PPSA. The Customer must do everything necessary on its part to ensure that Section 275(6)(a) of the PPSA continues to apply. The agreement in this sub-clause is made solely for the purpose of allowing the Company the benefit of Section 275(6)(a) and the Company shall not be liable to pay damages or any other compensation or be subject to injunction in respect of any actual or threatened breach of this sub-clause.
(i) The Customer must not dispose or purport dispose of, or create or purport to create or permit to be created any security interest in the Goods other than with the express written consent of the Company.
(j) The Customer agrees that where the Company has rights in addition to those of Chapter 4 of the PPSA, those rights will continue to apply.
(11) Competition and Consumer Act 2010
(a) Where the conditions of sale would otherwise be subject to the Competition and Consumer Act 2010, the Customer agrees that the Customer is acquiring the Goods for business purposes and that the Act does not apply to the supply of the Goods to the Customer.
(b) If the Customer is a consumer as defined in Section 48 of the Act, and the Customer has not contracted out of the Act under clause (11)(b) of these Conditions of Sale, nothing in these Conditions of Sale will limit any right the Customer may have under this Act.
(12) Privacy Act 1988
(a) To enable the Company to access the Customer’s Application for credit, the Customer authorises the Company.
(i) To obtain from a credit reporting agency a credit report containing personal information about the Customer and its Guarantors pursuant to Section 18K(1)(b) of the Privacy Act; and
(ii) To obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities.
(b) In accordance with Section 18N(1)(b) of the Privacy Act the Customer authorises The Company to give to and obtain from any credit provider named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.
(c) The Customer understands the information can be used for the purposes of assessing its application for credit (Section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, notifying other credit providers of a default by it and assessing its credit worthiness
(13) Miscellaneous Provision
(a) The Company may transfer any right or liability under this provision of supply at its absolute discretion. The Customer may not transfer any right or liability under
(b) these conditions of sale without the prior written consent of the Company.
(c) These conditions of sale are governed by and construed under the law in the State of Victoria. Any legal action in relation to these conditions of sale against any party
(d) or its property may be brought in any Court of competent jurisdiction in the State of Victoria.
(e) The Company may vary these conditions of sale from time to time. Any such variation will be effective from the date specified by the Company in a written notice
(f) provided to the Customer or published on the Company’s website. By requesting or by continuing to request any Goods after such effective date, the Customer
(g) accepts and agrees to be bound by such variations.
(h) Any amendment to these conditions of sale has no force or effect, unless effected by a document executed by the Company.
(i) Any failure by any party to exercise any right under these conditions of sale does not operate as a waiver and the single or partial exercise of any right by that party
(j) does not preclude any other or further exercise of that or any other right by that party.
(k) If a party enters into these terms and conditions of sale as a Trustee of a Trust, that party and its successors as Trustee of the Trust will be liable under these
(l) conditions of sale in its own right and as Trustee of the Trust. Nothing releases the party from any liability in its own capacity.
(m) The Company shall not be liable for any delay or failure to perform its obligations pursuant to these conditions of sale if such delay is directly or indirectly caused by an
(n) event or circumstance beyond the Company’s reasonable control, including fire, flood, crime, war, strike, lockout or labour dispute, inability to procure stock or
(o) transport or acts or omissions by regulatory authorities. If a delay or failure by the Company to perform its obligations due to any of these events exceeds 60 days,
(p) either party may terminate these conditions of sale by providing written notice to the other party.
(q) Should any part of these conditions of sale be held to be void or unlawful, these conditions of sale will be read and enforced as if the void or unlawful provisions have been deleted.
(1) Content of Website
(a) All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, "Content"), including but not limited to the design, structure, selection, coordination, expression, "look and feel" and arrangement of such Content, contained on the Site is owned, controlled or licensed by or to OMEGA Power Pty Ltd., and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
(c) Additional terms and conditions may apply to purchases of goods or services (as per clauses 1-25 of these Terms and conditions above) and to specific portions or features of the Site, including contests, promotions or other similar features, all of which terms are made a part of these Terms and Conditions of Use by this reference.
(d) The Customer/User agrees to abide by such other terms and conditions, including where applicable representing that it/ they are of sufficient legal age to use or participate in such service or feature.
(e) If there is a conflict between these Terms and Conditions and the terms posted for or applicable to a specific portion of the Site or for any service offered on or through the Site, the latter terms shall control with respect to your use of that portion of the Site or the specific service.
(f) OMEGA Power may make changes to any products or services offered on the Site, at any time, without notice. The materials on the Site with respect to products and services may be out of date, and OMEGA Power makes no commitment to update the materials on the Site with respect to such products and services.
(2) Links to Other Sites and to the OMEGA Power Site
(a) Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under OMEGA Power's control, and OMEGA Power is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. The Customer/User will need to make their own independent judgment regarding your interaction with these Linked Sites.
(a) OMEGA Power does not promise that the site or any content, service or feature of the site will be error-free or uninterrupted, or that any defects will be corrected, or that your use of the site will provide specific results. The site and its content are delivered on an "as-is" and "as-available" basis. All information provided on the site is subject to change without notice. OMEGA Power cannot ensure that any files or other data you download from the site will be free of viruses or contamination or destructive features. OMEGA Power disclaims all warranties, express or implied, including any warranties of accuracy, non-infringement, merchantability and fitness for a particular purpose. OMEGA Power disclaims any and all liability for the acts, omissions and conduct of any third parties in connection with or related to your use of the site and/or any OMEGA Power services. The Customer/User assumes total responsibility for their use of the site and any linked sites. The sole remedy against OMEGA Power for dissatisfaction with the site or any content is to stop using the site or any such content. This limitation of relief is a part of the bargain between the parties.
(b) The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorised access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
(c) OMEGA Power reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
(4) Indemnity by Customer
(a) The Customer/User agrees to indemnify and hold OMEGA Power, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys' fees), made against OMEGA Power by any third party due to or arising out of or in connection with your use of the Site.
(5) ALTERATIONS/CHANGES TO TERMS AND CONDITIONS
(a) OMEGA Power reserves the right, at its sole discretion, to change, modify, add or remove any portion or portions of the Terms and Conditions at any time. It is the responsibility of the Customer/User to check these Terms and Conditions periodically for any changes. Your continued purchase of Goods/use of the Website following the making of any changes will mean that you accept and agree to be bound to the changes. The current Terms and Conditions are available via the Website or URL https://www.omegapower.com.au/terms