The Refurb Lab Terms and Conditions for Supply
1 APPLICATION OF SUPPLY TERMS
1.1 Other than as set out in these Supply Terms, these Supply Terms set out the entire agreement between The Refurb Lab and the Customer in relation to the supply or delivery by The Refurb Lab of any Goods and supersedes any previous understanding, agreement, representation or warrants relating to that subject matter. Any terms or conditions contained in any Order (as defined in section 3.1) or any other document issued by the Customer or any correspondence or documents passing between The Refurb Lab and the Customer:
(a) have no effect, and will not affect any agreement between The Refurb Lab and the Customer pursuant to these Supply Terms, even if The Refurb Lab has had notice of those terms or conditions; and
(b) do not constitute an offer or a counter-offer by the Customer.
1.2 By ordering Goods, or receiving delivery of any Goods, the Customer is deemed to have accepted these Supply Terms, and to have agreed that they apply to the exclusion of all others.
1.3 These Supply Terms may be amended from time to time by The Refurb Lab without prior notice. Publication of the amended Supply Terms on The Refurb Lab’s website, WEBSITE URL , is deemed to amend the Supply Terms and be notice of that amendment and the amended Supply Terms will apply to any Order or part of an Order from the time of amendment. The Refurb Lab may, but is not required, to notify the Customer of any amendment to the Supply Terms.
1.4 The Refurb Lab reserves the right to suspend or cease supply at any time if the Customer fails to comply with any of these Supply Terms or any other agreement with The Refurb Lab.
The price of any Goods will be as set out in the The Refurb Lab’s catalogues and price lists issued to the Customer, from time to time, as adjusted in accordance with any applicable discounts The Refurb Lab agrees with the Customer. If Goods are purchased on The Refurb Lab’s website, the prices displayed on the website at the time of purchase will be the applicable prices.
3 ORDER AND ACCEPTANCE
3.1 Any Order by a Customer to purchase Goods from The Refurb Lab (Order), whether in writing, electronically, online or verbal, submitted to The Refurb Lab shall be deemed to be made pursuant and subject to these Supply Terms.
3.2 All Orders will be subject to acceptance by The Refurb Lab and The Refurb Lab may decline or accept an Order, in whole or in part, in its absolute discretion. Customers acknowledge that acceptance of an Order by The Refurb Lab does not imply that The Refurb Lab will accept any future Orders placed by the Customer.
3.3 The Customer may not cancel any Order accepted by The Refurb Lab or any part of that Order without obtaining The Refurb Lab’s prior written consent, which may be withheld by The Refurb Lab for any reason, and then only on such terms (including as to the payment of any cancellation fee) as The Refurb Lab may determine.
3.4 The Refurb Lab may at any time for no disclosed reason:
(a) decline any Order and/or cancel any Order previously accepted but not supplied; and/or
(b) stop supplying Goods to a Customer.
4 DELIVERY AND RISK
4.1 If The Refurb Lab and the Customer agree that the Customer will collect Goods from The Refurb Lab’s premises: (a) the Customer must collect the Goods within 7 days of being advised by The Refurb Lab that the Goods are ready for collection; (b) The Refurb Lab is not responsible for any costs associated with the delivery (including freight and insurance costs); and (c) the risk of loss or damage (but not title) of the Goods passes to the Customer immediately upon collection of the Goods by the Customer or the Customer’s agent or courier as the case may be.
4.2 If The Refurb Lab and the Customer agree that The Refurb Lab will arrange for delivery the Goods to the Customer’s nominated address: (a) costs associated with delivery of the Goods, including freight, insurance and other charges arising from transporting the Goods from The Refurb Lab’s premises to the Customer’s nominated address will be charged to the Customer as a separate charge in addition to the price of Goods; and (b) the risk of loss and damage (but not title) of the Goods passes to the Customer immediately when the Goods leave The Refurb Lab’s premises.
4.3 If the Customer does not, or indicates to The Refurb Lab that it will not, collect the Goods in accordance with clause 4.1 or take or accept delivery of the Goods delivered by The Refurb Lab in accordance with clause
(a) the Goods are deemed to be delivered when The Refurb Lab advised the Customer the Goods are ready for collection or when The Refurb Lab was willing to deliver the Goods (as applicable) and The Refurb Lab may invoice the Customer for those Goods; and
(b) the Customer is liable for any costs and expenses incurred by The Refurb Lab to return the Goods to The Refurb Lab premises and store the Goods.
4.4 The Refurb Lab will use reasonable endeavours to have the Goods ready for collection or delivered in accordance with the time frame agreed with the Customer. The Refurb Lab will not be responsible for any loss suffered or liability incurred by the Customer arising out of any delay in or failure to deliver or have ready for collection the Goods (or any part of them) or failure to supply the requested quantities.
5 INVOICING AND PAYMENT
5.1 The Refurb Lab will determine the invoice amount for an Order with reference to The Refurb Lab’s catalogues, price lists and any applicable discounts The Refurb Lab agreed with the Customer. If the Goods are purchased online, The Refurb Lab will determine the price of the Goods by reference to the price displayed on the website at the time of purchase.
5.2 Unless otherwise specified by The Refurb Lab, all prices stated in The Refurb Lab’s catalogues, price lists, website or in any invoice include any tax (including any Goods and Services Tax within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST”), or any duty or impost levied in respect of the Goods), which the Customer will pay, in addition to the amounts specified for the Goods.
5.3 If The Refurb Lab has not granted the Customer a credit facility, the Customer must pay all invoiced amounts for the Goods and associated costs by cash of Electronic Funds Transfer upfront either:
(a) upon collection of the Goods from The Refurb Lab; or
(b) prior to the dispatch of the Goods to the Customer’s nominated address,
(as applicable) or at such other time or method of payment agreed with The Refurb Lab.
5.4 If The Refurb Lab has granted the Customer a credit facility, the Customer must pay all invoiced amounts for the Goods within the period notified or advised to the Customer by The Refurb Lab in writing (Due Date).
5.5 The Refurb Lab reserves the right to refuse credit facilities to any purchaser. The Refurb Lab may revoke or withdraw any approval previously given to the Customer to extend credit to the Customer at any time and for any reason.
5.6 Invoices overdue by seven (7) days or more will not be processed and Goods will not be issued (“on hold”) until all overdue invoices are paid. The Refurb Lab will notify the Customer via email or telephone if the account is put on hold.
5.7 If The Refurb Lab does not receive payment by the Due Date, then without limiting its rights, The Refurb Lab may:
(a) charge the Customer interest on the amount outstanding at the rate 2% over the penalty rate fixed under Section 2 of the Penalty Interest Rates Act 1983 (Vic) (compounding daily);
(b) by written notice to the Customer, suspend the provision of any further Goods, until the Customer has paid the outstanding amount, interest and any amount payable under clause 5.8;
(c) retain any amount received from the Customer on account of the Goods;
(d) retain or resell any particular Goods; and
(e) terminate any credit arrangement with the Customer in the event of the Customer defaulting in any of the terms and conditions of that provision of credit.
5.8 The Customer agrees that all expenses, costs and disbursements incurred by The Refurb Lab in recovering or attempting to recover any outstanding money due from the Customer including debt collection, agency fees and legal fees must be paid by the Customer.
5.9 The Refurb Lab may, at its discretion, pass all invoices overdue by thirty one (31) days or more to its chosen debt collection agency for collection.
5.10 The Customer is not entitled to set off against or deducted from any money owing to The Refurb Lab, amounts owed to the Customer by The Refurb Lab on any account whatsoever
6.1 Until full payment (cash or cleared funds) has been made for all Goods, and any other sums in any way outstanding from the Customer to The Refurb Lab from time to time:
(a) the legal and beneficial ownership of the Goods remain with The Refurb Lab and will not pass to the Customer;
(b) the Customer holds the Goods as bailee for The Refurb Lab (and will return such goods to The Refurb Lab on request) and must separately store the Goods in such a way that makes it clear that the Goods are the property of The Refurb Lab; and
(c) the Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of The Refurb Lab (provided that there will be no right to bind The Refurb Lab to any liability to such third party by contract or otherwise). The Customer must hold all payments (direct or indirect) received from such third parties for the Goods (or any portion of them) on trust for The Refurb Lab in a separate account with a bank to whom the Customer has not granted a security interest.
6.2 In the event the Customer defaults under these Supply Terms, including any default on the payment of any monies due to The Refurb Lab, then The Refurb Lab has the right (without giving notice) to retake possession of the Goods supplied to the Customer by The Refurb Lab and the Customer hereby authorises and allows The Refurb Lab or its representative, servant, agent or employee to enter the premises upon which the Goods are kept or stored for the purposes of retaking possession of the Goods and The Refurb Lab is not liable for any costs, losses, damages, expenses or any other monies or lossess suffered by the Customer as a result of The Refurb Lab retaking possession of the Goods.
7 PERSONAL PROPERTY SECURITIES ACT
7.1 The Customer acknowledges that these Supply Terms constitute a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA) and The Refurb Lab has a purchase money security interest in the Goods supplied under these Supply Terms.
7.2 The Customer acknowledges that The Refurb Lab may register the security interest in the Goods on the Personal Property Securities Register.
7.3 The Customer agrees to do anything that The Refurb Lab reasonably requires to ensure that The Refurb Lab has at all times a continuously perfected security interest over the Goods.
7.4 The Customer agrees not to disclose any information of the kind contemplated by section 275(1) of the PPSA.
7.5 The Customer waives its rights to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to a security interest created by The Refurb Lab in relation to the Goods under these Supply Terms.
7.6 To the extent permissible by law, the Customer and The Refurb Lab contract out of sections 95, 121(4), 123(2)(a), 129(2), 130(1)(a), 132(4), 135, 142 and 143 of the PPSA.
7.7 In this clause, terms used which are defined in the PPSA have the meaning given to those terms in the PPSA.
8 RETURNS, REFUNDS AND DEFECTS
8.1 The Customer is not entitled to return any Goods or obtain a refund from The Refurb Lab other than as set out in these Supply Terms.
8.2 The Customer must submit and notify The Refurb Lab of any defects with the Goods supplied within seven (7) days of the date the Goods were delivered or collected (as applicable). Otherwise the Customer is deemed to have accepted the Goods.
8.3 All Goods that are returned to The Refurb Lab must be posted to The Refurb Lab’s Head Office, located at Unit 3/426-428 Marion St Condell Park NSW 2200, accompanied by a satisfactorily completed The Refurb Lab Warrant Returns Form which is available on The Refurb Lab’s website at WEBSITE URL .
8.4 If the Customer notifies The Refurb Lab of a defect in accordance with 8.2, The Refurb Lab may choose to refund, replace or repair the Goods or provide any other remedy it chooses.
8.5 Where The Refurb Lab refunds, replaces or pays for the replacement of Goods, the Goods being refunded or replaced must, at The Refurb Lab’s option, be destroyed or returned to The Refurb Lab, at the Customer’s expense, and if returned become The Refurb Lab’s property.
9.1 If the Customer becomes aware of any default, defect or other condition, actual, potential or threatened, in any Goods supplied to the Customer such that the Goods should not be supplied to the public, the Customer must promptly notify The Refurb Lab of the Goods affected and provide all reasonable information requested by The Refurb Lab.
9.2 If the Customer is directed by The Refurb Lab to assist in any action to address any risk to the public from the Goods (including any suspension of supply or recall of the Goods), the Customer must cooperate and comply with all such reasonable directions of The Refurb Lab, including (a) withdrawing the Goods from offer to sale to the public, (b) recalling any Goods sold by the Customer, (c) complying with all legal requirements in relation to product recalls, and (d) disseminating information which in The Refurb Lab’s opinion is necessary or desirable to limit any harm, loss or damage that may be caused by the Goods.
9.3 The Customer’s cost of complying with Clause 9.2 will be the Customer’s responsibility except to the extent the direction to the Customer was caused by a negligent or wrongful act or omission by The Refurb Lab in which case The Refurb Lab will be responsible for such costs.
10 INTELLECTUAL PROPERTY RIGHTS
10.1 The Customer acknowledges that the Goods are the subject of copyright and other intellectual property rights.
10.2 The provision of Goods will not confer a licence or any other right on the Customer to use any intellectual property of The Refurb Lab or of any of its suppliers.
10.3 The Customer:
(a) must not, at any time, do or permit any act to be done that infringes the aforementioned intellectual property rights; and
(b) will indemnify The Refurb Lab fully against any loss, liability, cost or expense suffered or incurred by any of them (including liability to any other party) as a result of the Customer’s breach of the provisions of this clause 10.
11 COMPLIANCE WITH APPLICABLE LAWS AND THIRD PARTY RIGHTS
11.1 It is the sole responsibility of the Customer to ensure that the purchase, use and/or supply of the Goods, in the relevant jurisdiction that such purchase, use and/or supply takes place, by the Customer, or by The Refurb Lab on behalf of the Customer, does not contravene any applicable laws in that jurisdiction, and does not breach the terms and conditions of any licence or infringe the rights of any person in respect of the Goods in that jurisdiction.
11.2 The Customer acknowledges and agrees that it will not initiate, join, assist in or encourage any complaints or proceedings against The Refurb Lab in relation to the contravention of applicable laws in the relevant jurisdiction referred to in clause 11.1 above, or breach of the terms and conditions of licences or infringement of the rights of any person in that jurisdiction, in connection with any acts specified in clause 11.1 above.
11.3 The Customer will fully indemnify The Refurb Lab, its officers, employees and agents and keep them indemnified against any loss, liability, cost or expense suffered or incurred by any of them (including liability to any other party) in connection with the Customer’s breach of the provisions of this clause 11.
12 CONFIDENTIALITY OBLIGATIONS
12.1 In these Supply Terms, Confidential Information means:
(a) all information of or used by The Refurb Lab, the business conducted by The Refurb Lab, and its transactions, pricing, operations and affairs;
(b) all pricing information of The Refurb Lab, including all prices stated in The Refurb Lab’s catalogues, price lists, website or in any invoice issued to the Customer;
(c) all trading terms between The Refurb Lab and the Customer;
(d) all other information treated by The Refurb Lab as confidential, including the existence of a relationship between the Customer and The Refurb Lab;
(e) all notes, data, reports and other records (whether or not in tangible form) based on, incorporating or derived from information referred to in paragraph 12.1(a) or (b); and
(f) all copies (whether or not in tangible form) of the information, notes, reports and records referred to in paragraphs 12.1(a), (b) or (c),
that is not public knowledge (otherwise than as a result of a breach of a confidentiality obligation of a party);
12.2 The Customer must:(a) keep the Confidential Information confidential and not disclose it or allow it to be disclosed to a third party except:
(i) with the prior written approval of The Refurb Lab; or
(ii) to officers, employees and consultants or advisers of the Customer (or its Related Bodies Corporate) who have a need to know (and only to the extent that each has a need to know) for the purposes of these Supply Terms and the transactions contemplated by it, and are aware that the Confidential Information must be kept confidential; and
(b) take or cause to be taken reasonable precautions necessary to maintain the secrecy and confidentiality of the Confidential Information.
12.3 The obligations of confidentiality under these Supply Terms do not extend to information:
(a) disclosed to a party, but at the time of disclosure is rightfully known to or in the possession or control of that party and not subject to an obligation of confidentiality on the party;
(b) that is public knowledge (except because of a breach of this agreement or any other obligation of confidence); or
(c) required to be disclosed by law or any order of any court, tribunal, authority or regulatory body or in connection with the enforcement of this agreement.
13 WARRANTY AND LIABILITY
13.1 The Customer warrants that the Customer acquires Goods from The Refurb Lab only: (a) for the purpose of personal use; (b) for the purpose of resale; or (c) for the purpose of using them up or transforming them in trade or commerce in the course of a process of production or manufacture, or in the course of repairing or treating other goods.
13.2 The Customer warrants that in placing an Order it has not relied in any way on The Refurb Lab’s representations and that it has satisfied itself as to the suitability of the Goods for the Customer’s purposes.
13.3 The Customer will fully indemnify The Refurb Lab, its officers, employees and agents and keep them indemnified against any loss, liability, cost or expense suffered or incurred by any of them (including liability to any other party) in connection with the Customer’s breach of any of the warranties contained in this document, including the warranties at clauses 13.1 and 13.2 above.
13.4 Subject to clause 13.5:
(a) all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute are expressly excluded under these Supply Terms;
(b) The Refurb Lab’s aggregate liability to the Customer arising directly or indirectly under or in connection with these Supply Terms or the performance or non-performance under these Supply Terms and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited to an amount not exceeding the price paid or payable by the Customer for the relevant Goods or payable by the Customer in accordance with these Supply Terms; and
(c) The Refurb Lab will not be liable to the Customer or any third party for any loss or damage to person or property, or for indirect, special, consequential loss or damage, loss of profit, loss of business opportunity, loss of contract, loss of revenue and loss of production arising from use by the Customer or any third party of any Goods, or any breach by The Refurb Lab of its obligations under these Supply Terms.
13.5 Nothing in these Supply Terms operates to exclude, restrict or modify the application of any implied condition or warranty provision, the exercise of any right or remedy or the imposition of any liability under the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other statute where to do so would: (a) contravene that statute; or (b) cause any term of these Supply Terms to be void (collectively, Non-excludable Obligations).
13.6 Notwithstanding anything else in these Supply Terms, in relation to Non-excludable Obligations, if the Customer provides The Refurb Lab with a satisfactorily completed Warranty Returns Form within a reasonable period of time from the date of purchase (no more than 12 months from the date of purchase or such other period as specified by The Refurb Lab in writing), to the extent permitted by law, The Refurb Lab’s liability to the Customer for a failure to comply with any Non-excludable Obligation is limited to:
(a) replacing the Goods or supplying equivalent Goods;
(b) having the Goods repaired;
(c) payment of the cost of replacing the Goods or supplying equivalent Goods; or
(d) payment of the cost of having the Goods repaired.
13.7 The Refurb Lab will not be liable to the Customer or to any third party for any failure or delay in the performance of its obligations under these Supply Terms, if such failure or delay is caused by a Force Majeure. A Force Majeure will not affect the Customer’s obligation to make any payments to The Refurb Lab for Goods delivered or deemed to be delivered to the Customer. For the purposes of this clause 13.7, “Force Majeure” means a circumstance beyond The Refurb Lab’s reasonable control which results in The Refurb Lab being unable to observe or perform on time any obligation under these Supply Terms. Those circumstances include acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, and strikes.
14 GENERAL PROVISIONS
14.1 The failure by The Refurb Lab to exercise or enforce any rights detailed in these Supply Terms will not be deemed as a waiver of any such right and does not bar the exercise or enforcement of such right at any time or time thereafter.
14.2 These Supply Terms and any Order made under it are governed by and will be interpreted according to the laws of New South Wales. The Refurb Lab and the Customer consent and submit to the non-exclusive jurisdiction of the courts of New South Wales.
14.3 If any provision of these Supply Terms proves to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason, that provision is deemed omitted without affecting the remaining provisions, and the remaining provisions of these Supply Terms shall continue in full force and effect.
14.4 Any notice required or contemplated by these Supply Terms is deemed to have been properly given if it is in writing, properly addressed and delivered personally, or mailed postage prepaid or by fax to the Customer’s principal place of business or last known address.
14.5 The Customer must not assign, novate or subcontract its rights or obligations under the Supply Terms without The Refurb Lab’s consent.