TERMS AND CONDITIONS OF TRADE
For Account Holders
These Terms and Conditions apply to all our sale of goods and services. Any order placed with AGM Technology Pty Ltd ABN 39.137.043.899 (“we”, “our”, “us” or “AGM Technology”) constitutes your (“you” or “your”) agreement to be bound by these terms. Any additional or different terms you stipulate or state in any communication with us (including any order) are hereby objected to and will not bind us unless we agree in writing. No sales representative or agent is authorised by us to give any guarantee, warranty or representation in addition to, or contrary to these conditions. In any event, receipt of goods or services by you (or another as you direct) upon delivery or rendering of service constitutes your agreement to be bound by these terms.
1. SALE AND PURCHASE
1.1. Your placement of an order with us (“Order”) constitutes an offer by you to purchase goods or services from us on these terms. The Order is placed when it is submitted to us.
1.2. The Order is accepted only when we notify you that we accept your Order. We might notify you that we accept your Order by sending you an e-mail stating this.
1.3. If we accept the Order, a binding contract between you and us will arise on these terms (the Contract). The Contract may be amended only by written agreement between us and you.
2. PRICE AND PRICE VARIATION
2.1. The prices quoted in to you or in advertising literature are for guidance only. Unless otherwise agreed in writing, the contract price of the Goods will be as stated in our price list(s) current on the day of delivery of the Goods. Prices do not include any delivery or administrative surcharges.
2.2. AGM Technology may adjust any price quoted from time to time and you agree to pay any such adjusted price to take account of variations in the cost to AGM Technology of carrying out the whole or any part of the contract arising from any of the following:
a) delays in delivery or installation of the Goods or services or any of them as a result of instructions or lack of instructions from you, your failure or inability to fulfill the obligations under the contract or any action or inaction by you or other circumstances beyond our control;
b) variation in the cost of AGM Technology acquiring the Goods, directly or indirectly, on account of changes in rates of freight and transport costs, insurance, customs duties, taxes, existing tariff classifications or any variation in currency exchange rates;
c) variations in the rates of, or the costs of complying with, all statutory, government or local government or governmental authority charges and obligations; or
d) any correction of errors or omissions on the part of AGM Technology or any of its representatives.
2.3. AGM Technology has the right to impose administrative fees for orders under certain dollar values.
3. GOODS AND SERVICES TAX
3.1. All goods and services are sold subject to goods & services tax (GST) unless the goods are classified as GST exempt.
4.1. The purchase price will be paid to AGM Technology at its address by the end of the month following the month in which the invoice is dated. Payment will not be accepted by any means other than cash, cheque, EFT (electronic funds transfer) or direct debit.
4.2. If any account is in dispute, the undisputed portion of the account will be payable in accordance with the normal terms of payment as provided in Condition 4.1. Payment of the disputed portion may be withheld provided the matter is brought to AGM Technology’s attention in writing setting out the particulars of the dispute and sent to AGM Technology within 14 days of the dispute arising.
4.3. We reserve the right to suspend the delivery of further goods if the terms of payment are not strictly adhered to by you.
4.4. Any expenses, costs or disbursements incurred by us in recovering any outstanding monies including debt collection agency fees or solicitor’s costs will be paid by you providing that those fees do not exceed the scale charges by that debt collection agency/solicitor.
5.1. We will deliver the Goods to the address stated in the Order or as agreed by us in writing. AGM Technology reserves the right to charge for delivery of the Goods at any time, notwithstanding that it may not have previously done so.
5.2. We will deliver the Goods by such carrier and such form of transport as we consider to be appropriate. When you specify the carrier and the means of carriage, we shall deliver the Goods in the way specified, the cost of such carriage being an additional charge to the invoiced price of the Goods.
5.3. We will not be responsible for any part delivery or delay in delivery of the Goods. We will not be in any way responsible for any consequences (direct or indirect) arising from such delay or non-delivery.
5.4. We will be entitled to charge for and recover from you on demand all costs or loss occasioned by:
a) failure by you to collect or take delivery of the Goods (as the case maybe) as and when agreed to;
b) delay or interruption in the installation of Goods caused or contributed to by any act or omission on your behalf.
Any such costs or loss will include (but not be limited to) the cost of storage, labour, transportation and administration costs at our prevailing commercial rates.
5.5. You agree to inform AGM Technology in writing within 30 days of the date of invoice if proof of delivery is required. After this period, no liability will lie with AGM Technology for proof of delivery.
6. RETURN OF GOODS
6.1. The Goods come with guarantees under the Australian Consumer Law. Nothing in these Terms and Conditions excludes, restricts or modifies:
a) the application of any provision of the Australian Consumer Law to the sale of the Goods; or
b) the exercise by you of a right conferred by such a provision; or
c) any liability of a person for failure by AGM Technology to comply with a guarantee that applies under the Australian Consumer Law to the sale of the Goods.
Subject to the above, all conditions and warranties, whether or not implied by law, are excluded from any contract for the sale of the Goods. Details of any manufacturer’s warranty are included with the Goods.
6.2. Except where the Australian Consumer Law permits you to reject the Goods, AGM Technology will not accept the return of the Goods for credit or any other purpose unless AGM Technology agrees to accept the return of the Goods and advises a Return Advice Number prior to the return of Goods, in which case the remaining provisions of this Condition 6.2 and Conditions 6.3 and 6.4 will apply. Return of the Goods will only be accepted for credit within 14 days of delivery, unless due to our error. Return freight will be at our cost only when the error is on our part.
6.3. No returned Goods will be accepted by us (even if we agree to do so) if they have been tampered with by you or any other person and are not as new, if they are Goods sold on a non-return basis, or if they are not accompanied by the Return Advice Number referred to in Condition 6.2. Where goods are returned to us as above, they will be returned to you at your expense.
6.4. Receipt by us or by any of our agents or representatives of any Goods returned other than in accordance with Condition 6.2 or to which Condition 6.3 applies will not constitute nor be deemed to constitute our acceptance of the return of the Goods for credit or any other purpose.
7. TITLE AND RISK
7.1. Risk in the goods will pass to you at the time of delivery in accordance with Condition 5.
7.2. Irrespective of the time when risk in the goods will pass, passing of property and title in the Goods will be determined as follows:
a) You hereby acknowledge that the property and title in the Goods will remain with AGM Technology until you have made payment in full of the Purchase Price and any other monies owing hereunder.
b) Pending payment in full of the Purchase Price and any other monies owing hereunder:
i) in the case of the Goods being of the kind classified by us as ‘office machinery’, ‘office furniture’ or ‘computer hardware’, the relationship between AGM Technology and you will be fiduciary, and you will hold the Goods as bailee for and on behalf of AGM Technology.
ii) you will in all cases retain the Goods upon your premises (within the State or Territory of Australia that supply is made) in a manner such that they are readily identifiable as our property, and
iii) you will not in any way deal with, part with possession or dispose or attempt to deal with, part with possession or dispose of the Goods.
c) In the event that you default in payment of the Purchase Price or any other monies owing hereunder or upon the occurrence of any of the events specified in Condition 8, AGM Technology and its employees or agents will have the right to enter your premises or any other premises where the Goods are known to be stored to repossess the goods, and for this purpose you will grant all reasonable access rights and AGM Technology will be entitled to do all things required to secure possession. Upon repossession of any of the goods AGM Technology will then be entitled, in its discretion, to resell the Goods to any third party in which case you will not have any action whatsoever against AGM Technology for breach of contract or otherwise.
d) If you sell or otherwise disposes of the Goods to a third party prior to making payment of the Purchase Price or any other monies owing hereunder, AGM Technology will be entitled to so much of the proceeds of such sale equivalent to the amount of monies owing to AGM Technology by you.
7.3. In addition to the payment of any other monies payable by you to AGM Technology under this agreement, we will be entitled to charge for and recover from you on demand all costs, loss or damage incurred by us in exercising any of our rights under Condition 7.2 above, including, but not limited to, the cost of storage, transportation and administration costs at our prevailing commercial rates.
8. YOUR LIABILITY AND DEFAULT
i) fail to make any payment due under the contract or commit any other breach of any of your obligations under the contract; or
ii) suffer execution under any judgement; or
iii) commit an act of bankruptcy; or
iv) make any composition or arrangement with any creditor; or
v) being a company, pass a resolution for winding up or have a receiver appointed over any of its property or have a winding up petition presented against it,
AGM Technology (in addition to any other remedies hereby or by statute conferred) may treat the contract as terminated and any part of the Purchase Price then unpaid, together with any other monies owing hereunder, whether or not due under the terms of the contract will immediately become due and payable. Any such termination will be without prejudice to any claim or right we may otherwise possess.
9. LIMITATION OF LIABILITY
9.1. Where the Goods or any services we supply under the Contract are not goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, then our liability (if any) for failure to comply with a guarantee under the Australian Consumer Law (other than, in respect of the Goods, a guarantee as to title, a guarantee as to undisturbed possession or a guarantee as to undisclosed securities, charges or encumbrances) is limited, so far as the Australian Consumer Law allows and at our option:
a) in the case of the Goods, to repair or replace the Goods or supply of equivalent goods (or paying the cost of any of these); or
b) in the case of any services supplied by us, to supplying the services again (or paying the cost of having the services supplied again).
10. GOVERNING LAW
The contract will be governed by the law of the State of New South Wales and the Commonwealth of Australia.
11. NO ASSIGNMENT
You may not assign the Contract unless you have obtained our prior written consent to do so.
If any term of the Contract is found to be invalid or unenforceable, such invalidity or unenforceability will not affect the remainder of the Contract, which will continue in full force and effect.
All notices under the Contract must be in writing. Notices can be given in person, by fax, by post or by e-mail, to an address or number detailed in the Order. If a notice is sent by post, it will be taken to have been received 3 business days after posting, unless in fact it is received earlier. Any changes to notice details must be notified in writing.
AGM Technology reserves the right to change these Terms and Conditions at any time.