of the company BayWa r.e. Solar Systems Pty Ltd. (hereinafter referred to as BayWa r.e.)
Dated: December 2020
CONDITIONS OF SALE
1. Quotations
1.1. A written quotation issued by BayWa r.e. Solar Systems to the Customer is an offer to sell and overrides BayWa’s prevailing price list. A written quotation expires on the date specified as an expiry date. If no expiry date is specified, the written quotation expires 30 days after the date of the written quotation.
1.2. BayWa may withdraw, revoke or vary a written quotation at any time prior to the Purchaser submitting an order which accepts the offer to sell comprised by the written quotation.
2. Purchase
2.1. The Customer is required to submit a Purchase Order to BayWa r.e. Solar Systems.
2.1.1 The Purchase Order needs to be submitted in writing (preferably by Email).
2.2.2. If the Purchase Order is in reference to a specific Quote, it needs to state the Quote Number.
2.2 If the Purchase Order is not in relation to a specific Quote, it must contain the following information:
2.2.1 Name of person placing the Order
2.2.2 Contact details of person placing the Order
2.2.3 Name of goods or BayWa Product Code
2.2.4 Purchase Price of the Goods (as per the notification by BayWa)
2.2.5 Where the supply of the goods is in the future (beyond 4 weeks from date of order), BayWa reserves the right to change the price to match the current price list. If the price increase cannot be passed on fair and reasonable grounds BayWa reserves the right to cancel the contract.
2.2.4 Delivery Address
2.3 Upon receipt of the Purchase Order BayWa will do following:
2.3.1. Review the Purchase Order
2.3.2.Provide the Customer with a written acknowledgement containing following information:
2.3.1.1. Customer details
2.3.1.2 Product & price confirmation
2.3.1.3 Method of transport and delivery address
2.3.1.4 Date when Goods will be ready for collection by customer, customer’s courier or BayWa’s freight company.
3. Cancellation & Restocking Fee
3.1. The Customer can cancel the Purchase Order within 24 hours of receipt of a BayWa Order Confirmation if;
3.1.1 The Purchase Order contained items which were not specifically ordered for the customer, and it was communicated to the Customer that any of the confirmed items cannot be cancelled.
3.1.2 The Purchase Order was not already picked and packed and made available for dispatch or pick-up as per the request of the Customer.
3.2. Purchase Orders will generally be packed 2 days prior to their collection and/or dispatch date. In the event of a Purchase Order being cancelled once the goods have already been packed a restocking fee will apply.
3.2.1. The restocking fee will be 1.5% of the order value and will be capped at $ 200.00
4. Delivery & Collection
4.1. BayWa will deliver the Goods to the Customer as follows:
4.1.1. BayWa reserves the right to arrange transport by any means in any means in its absolute discretion.
4.1.2. Delivery will be made during working hours to the location mentioned in the order confirmation.
4.1.3. A delivery period/time agreed by the Customer and BayWa is an estimate only and is not binding on BayWa. Failure to deliver at the agreed time will not entitle the Customer to terminate the Contract or claim any kind of compensation.
4.1.4. BayWa or its transport contractor will deliver the Goods so close (“Drop Spot”) to the Delivery Point as, in the opinion of BayWa or its contractor, it is safe or prudent to do so.
4.1.5. The risk in the Goods passes to the Customer when Goods leave BayWa’s warehouse for the purposes of delivery to the Customer or its designated Drop Spot.
4.1.6. The unloading of the Goods at the Drop Spot is the Customer’s responsibility at its own cost and risk.
4.1.7. If BayWa or its transport contractor cannot deliver the Goods to the Customer’s nominated address, the Customer will be liable for any additional Delivery and/or Storage Charges.
4.2. The Customer can collect the Goods from BayWa’s premises;
4.2.1. BayWa’s personnel may load the Goods into or onto the Customer’s vehicle in which case risk in the Goods passes to the Customer. Delivery is effected when the Goods are set down in or on the Customer’s vehicle.
4.2.2. The Customer must collect the Goods within 5 days of being notified. If the Customer fails to collect the Goods BayWa will reserve the right and cancel the Order and reallocate the Goods to another Customer.
4.3. Where the transport contractor enters the Customer’s premises or the premises of a third party nominated by the Customer as a delivery point, the Customer:
4.3.1. Releases BayWa from any claim in respect to damage occasioned to the Customer’s premises or injury to persons arising out of the delivery by BayWa’s transport contractor.
4.3.2. indemnifies and holds BayWa harmless from and against any loss, damage or liability suffered or incurred by BayWa in respect of damage occasioned to the third party’s premises or injury to persons arising out of delivery by BayWa’s transport contractor.
4.4. BayWa will not be liable for any loss incurred as a result of a delay or failure to make any supply of the Goods or the Services or to observe any of these Conditions due to an event of force majeure, being any cause or circumstances beyond the BayWa’s reasonable control, including but not limited to, any lack of production capacity or raw materials, strikes, lock-outs, labour disputes, fires, floods, acts of God or public enemy, malicious or accidental damage, pandemics, delays in transport, breakdowns in machinery or restrictions or prohibitions by any government or semi-government authorities or embargoes. During the continuance of an event of force majeure, the BayWa’s obligations under these Conditions will be suspended.
5. Damage or Shortfall in a Delivery
5.1. The Customer must notify BayWa of any shortfall in a delivery. The notification must be submitted in writing and with the corresponding BayWa “Order Reference”. BayWa must be informed within two (2) Business Days of the date on which the Goods were delivered. If the Customer does not notify BayWa of any shortfall, both the Customer and BayWa agree that the delivery contained the Goods as per the Order Confirmation provided by BayWa.
5.2. The Customer must notify BayWa of any damage of Goods in a delivery. The notification must be submitted in writing within two (2) Business Days of the date the Goods were delivered. The notification must contain information about the damage and images of the damaged Goods.
6. Return of Goods
6.1. The return of unopened, unused and non-defective Goods is governed by the BayWa Return Policy. BayWa will accept the return of any Goods or provide any refund unless the Customer complies with the rules set out in the Return Policy.
6.2. BayWa is under no obligation to accept the return of non-defective Goods, and may refuse to do so at its absolute discretion.
7. Title
7.1 The Customer agrees that the legal and equitable title to the Goods is retained by BayWa until BayWa receives payment in full.
7.2 Notwithstanding any other provision to the contrary, BayWa reserves the following rights in relation to the Goods until all amounts owed by the Customer to BayWa in respect of the Goods and all other goods and services supplied to the Customer at any time are fully paid:
7.2.1. Legal and equitable ownership of the Goods;
7.2.2. To retake possession of the Goods; and
7.2.3. To keep or resell any of the Goods repossessed.
7.3. In the event of a breach of this contract by the Customer including, without limitation, failure by the Customer to make payment for the Goods by the date specified by the BayWa to the Customer, the Customer must return the Goods to BayWa immediately on demand. If the Customer does not return the Goods to BayWa on demand, BayWa shall be entitled (without further notice) to enter upon the Customer’s premises at any time to do all things necessary to recover the Goods.
7.4. The Customer hereby grants full leave and irrevocable license to BayWa and any person authorised by BayWa to enter upon the premises where the Goods may for the time being be placed or stored for the purpose of retaking the Goods.
7.5 The Customer agrees that:
7.5.1. it shall be liable for all costs, losses, damages, expenses or any other sums of money incurred or suffered by BayWa (including consequential losses and damages) as a result of BayWa retaking possession of the Goods or otherwise exercising its rights under this clause; and
7.5.2. it shall indemnify BayWa for all fees (including legal fees on a full indemnity basis), costs and expenses incurred or suffered as a result of any and all prosecution, actions, demands, claims or proceedings brought by or against BayWa in connection with the retaking possession of the Goods or the exercise by BayWa of its rights under this clause, and the Customer shall repay all such fees, costs, losses, damages, expenses or any other sums of money on demand.
8. Application of the Personal Property Securities Act 2009 (PPSA)
8.1. This clause applies to the interest in the Goods as a Security Interest for registration in the PPSA Register.
8.2. The Purchaser acknowledges and agrees that BayWa may register its Security Interest in the Goods at any time before and after delivery.
8.3. The Purchaser acknowledges and agrees to waive its rights under section 157 of the PPSA to receive verification of the registration.
8.4. In the event of any default by the Purchaser of any obligation owed to BayWa under these Conditions or any other agreement for the supply of the Goods, BayWa is at liberty to enforce its Security Interest in the Goods by exercising all or any of its rights pursuant to these Conditions and/or the PPSA.
8.5. The parties agree to the maximum extent permitted by law that sections 96, 125, 131 and 140 of the PPSA do not apply to the enforcement by BayWa of its Security Interest in the Goods and do not apply to the security agreement created by these Conditions.
8.6. The Purchaser waives its rights to receive notices under sections 95, 118, 121(4), 123, 130, 132(3)(d), 132(4), 135 and 157 of PPSA.
8.7. The Purchaser waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA and agrees that these sections do not apply to the enforcement by BayWa of its Security Interest in the Goods and do not apply to the security agreement created by these Conditions.
8.8. The parties agree not to disclose information of the kind referred to in section 275(1), except in the circumstances required by sections 275(7)(b)-(e), of the PPSA.
8.9. The Purchaser must do anything requested by BayWa to ensure that its Security Interest is a perfected Security Interest and has priority over all other Security Interests in the Goods.
8.10. The Purchaser consents to BayWa recording the details of these Conditions on the PPSA Register.
8.11. Nothing in this clause 7 is limited by any provision of these Conditions or any other agreement between the parties.
8.12. If a term used in this clause 7 has a particular meaning in the PPSA, it has the same meaning as in this clause.
9. Price and GST
9.1. The price of the Goods or the Services or both will be BayWa’s prevailing price at the time of delivery.
9.2. The GST amount will be shown on the Tax Invoice (as per the GST Act)
10. Payment and Credit Terms
10.1. Unless BayWa has agreed to extend credit to the Purchaser, payment for the Goods must be made by the Purchaser prior to the delivery of the Goods.
10.2. Unless otherwise agreed by the Purchaser and BayWa, BayWa can deliver the Goods in one or more instalments when mutually agreed to do so. Where delivery of the Goods is effected by way of part delivery, BayWa will be entitled to invoice the Purchaser pro-rata in respect of the Goods delivered.
10.3. Where BayWa has agreed to extend credit to the Purchaser, BayWa will submit an invoice to the Purchaser for the Goods or the Services or both supplied to the Purchaser (including, without limitation, Goods delivered in part fulfilment of an order) and the full amount of the invoice together with any additional charges (if any) must be paid by the Purchaser to BayWa by no later than the agreed date as per the payment terms.
10.4. BayWa reserves the right to charge interest if the Purchaser exceeds its terms by 120 days. The interest will be charged at the rate of 8 per cent per annum on all amounts exceeding 120 days from the date the invoice was due. Interest will be calculated monthly. All payments made by the Purchaser will be first applied to the accrued interest.
10.5. The Purchaser must not retain or withhold any money owing to BayWa notwithstanding any breach or alleged breach by BayWa of these Conditions.
10.6. If the Purchaser breaches a provision of these Conditions including, without limitation, a provision relating to the payment of money or if the Purchaser, being a natural person, is the subject of any personal insolvency event including, without limitation, arising out of the Purchaser committing an act of bankruptcy or if the Purchaser, being a company, has a receiver, receiver and manager, official manager, trustee, administrator, other controller (as defined in the Corporations Act) or similar official appointed or steps are taken for such appointment over any assets or undertaking of the Purchaser or if the Purchaser suspends payment of its debts generally or is or becomes unable to pay its debts when they are due or is presumed to be insolvent under the Corporations Act or if the Purchaser ceases or threatens to cease to carry on business or any guarantee or security given to BayWa in relation to the Purchaser is purported to be revoked or asserted to be unenforceable then BayWa may, without limiting any other rights it may have, do any or all of the following things:
(a). withdraw any credit facilities which may have been extended to the Purchaser and require immediate payment of all money owed to BayWa by the Purchaser;
(b). Terminate without BayWa incurring liability to the Purchaser any contract in force between them for the sale or supply of the Goods or the Services or both and, without limitation, withhold any deliveries of the Goods or performance of the Services pursuant to any purchase order accepted by BayWa;
10.7. The Purchaser as beneficial owner charges in favour of BayWa all its interest in all of the present and future real property of the Purchaser as security for the due and punctual payment of all debts and monetary liabilities owed by the Purchaser to BayWa pursuant to a contract on or including the terms of these Conditions. The Purchaser consents to BayWa lodging a caveat to note its interest. Upon demand by BayWa, the Purchaser agrees to immediately execute a mortgage on terms satisfactory to BayWa to more particularly describe the security interest conferred by this clause. Should the Purchaser fail within a reasonable time of such demand to execute such mortgage then the Purchaser irrevocably appoints BayWa as its attorney with authority to do on its behalf anything that it may lawfully authorise an attorney to do including, without limitation, to make, sign, execute, seal and deliver any document and to take possession of, use, sell or otherwise dispose of any real property of the Purchaser.
10.8. In addition to payment of the price for the Goods, the Purchaser is responsible for, and BayWa may recover from the Purchaser:
(a). the cost of delivery of the Goods
(b). costs incurred by BayWa arising out of late notification by the Purchaser of a change to an agreed delivery schedule with such costs to include, without limitation, costs of double handling, storage of material, delivery service hire;
(c). storage charges where the Goods are not collected immediately upon being made available for collection at BayWa’s premises;
(d). demurrage costs or charges incurred by BayWa for attendance at the Delivery Point after the expiration of the first three quarters of an hour such charges to be calculated at master carrier rates;
(e). legal costs and disbursements on an indemnity basis incurred by BayWa in relation to a breach of these Conditions by the Purchaser;
(f). all costs associated with engaging a debt collection agency in relation to the recovery of any monies owing by the Purchaser to BayWa;
(g). the cost of any testing or inspection of the Goods.