1.1 “Phonetex” shall mean Phonetex, its successors and assigns or any person acting on behalf of and with the authority of Phonetex.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Phonetex to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Equipment” shall mean all Equipment including any accessories supplied on hire by Phonetex to the Client (and where the context so permits shall include any supply of services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by Phonetex to the Client.
1.5 “Goods” shall mean all Goods supplied by Phonetex to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Phonetex to the Client.
1.6 “Services” shall mean all Services supplied by Phonetex to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.7 “Price” shall mean the Price payable for the Goods as agreed between Phonetex and the Client in accordance with clause 4 of this contract.
- The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by Phonetex from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Phonetex shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Phonetex.
3.4 The Client shall give Phonetex not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Phonetex as a result of the Client’s failure to comply with this clause.
3.5 Goods are supplied by Phonetex only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
- Price and Payment
4.1 At Phonetex’ sole discretion the Price shall be either:
(a) as indicated on invoices provided by Phonetex to the Client in respect of Goods supplied; or
(b) Phonetex’ current price at the date of delivery of the Goods according to Phonetex’ current Price list; or
(c) Phonetex’ quoted Price (subject to clause 4.2) which shall be binding upon Phonetex provided that the Client shall accept Phonetex’ quotation in writing within thirty (30) days.
(d) Phonetex can, until the goods are paid for, withdraw or change the items listed on the web site. Once the order has been placed Phonetex will apply best efforts to deliver the advertised product or service.
4.2 Phonetex reserves the right to change the Price in the event of a variation to Phonetex’ quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances (including, but not limited to, supplier price changes and/or availability), or as a result of increases to Phonetex in the cost of materials and labour) will be charged for on the basis of Phonetex’ quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At Phonetex’ sole discretion a non-refundable deposit may be required.
4.4 At Phonetex’ sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Clients shall be made by instalments in accordance with Phonetex’ payment schedule; or
(d) payment for approved Clients (following an approved Credit Account Application and/or Personal Guarantee) shall be due fourteen (14), twenty-one (21) or thirty (30) days following the date of the invoice.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to one and one eight percent (1.8%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Phonetex.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
- Delivery of Goods
5.1 At Phonetex’ sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Phonetex’ address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Phonetex or Phonetex’ nominated carrier); or
(c) the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.
5.2 At Phonetex’ sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Client’s account.
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Phonetex shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.5 Phonetex may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed five percent (5%); and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.7 The failure of Phonetex to deliver shall not entitle either party to treat this contract as repudiated.
5.8 Phonetex shall not be liable for any loss or damage whatsoever due to failure by Phonetex to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Phonetex.
6.1 If Phonetex retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Phonetex is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Phonetex is sufficient evidence of Phonetex’ rights to receive the insurance proceeds without the need for any person dealing with Phonetex to make further enquiries.
6.3 Where the Client expressly requests Phonetex to leave Goods outside Phonetex’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
7.1 Phonetex and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Phonetex all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Phonetex in respect of all contracts between Phonetex and the Client.
7.2 Receipt by Phonetex of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Phonetex’ ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Phonetex shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Phonetex to the Client Phonetex may give notice in writing to the Client to return the Goods or any of them to Phonetex. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Phonetex shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Phonetex then Phonetex or Phonetex’ agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Phonetex has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Phonetex for the Goods, on trust for Phonetex; and
(f) the Client shall not deal with the money of Phonetex in any way which may be adverse to Phonetex; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Phonetex; and
(h) Phonetex can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Phonetex will be the owner of the end products.
8.1 The Client shall inspect the Goods on delivery and shall within twenty-four (24) hours of delivery (time being of the essence) notify Phonetex of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Phonetex an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Phonetex has agreed in writing that the Client is entitled to reject, Phonetex’ liability is limited to either (at Phonetex’ discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Phonetex has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seventy-two (72) hours of the delivery date; and
(d) Phonetex will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Phonetex may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to thirty percent (30%) of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit or return.
9.4 Computers and Software
(a) Software licencing – Once any software licence is opened [the security seal is broken] or registered, it cannot be returned.
10.1 For Goods not manufactured by Phonetex, the warranty shall be the current warranty provided by the manufacturer of the Goods. Phonetex shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
10.2 The client is responsible for the freight and or delivery costs of any equipment that is covered by manufacturer of the Goods.
10.3 In the case that the Client requires assistance from Phonetex to remove or replace any equipment, the Client will be liable for any labour costs for this work.
10.4 In the case of second hand Goods, the Client acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by Phonetex as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Phonetex shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
- Default and Consequences of Default
11.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Phonetex’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
11.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Phonetex.
11.3 If the Client defaults in payment of any invoice more than 7 days past the due date, Phonetex may :-
(a) place the account on hold,
(b) cease any future supply of goods and services until the outstanding invoices are paid,
(c) cease the credit account and place the client on a cash only prepay account.
(d) refer the outstanding invoices and amounts to a collection agency.
11.4 If the Client defaults in payment of any invoice when due, the Client shall indemnify Phonetex from and against all costs and disbursements incurred by Phonetex in pursuing the debt including legal costs on a solicitor and own client basis and Phonetex’ collection agency costs.
11.5 Without prejudice to any other remedies Phonetex may have, if at any time the Client is in breach of any obligation (including those relating to payment) Phonetex may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Phonetex will not be liable to the Client for any loss or damage the Client suffers because Phonetex has exercised its rights under this clause.
11.6 If any account remains overdue after one (1) day then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.7 Without prejudice to Phonetex’ other remedies at law Phonetex shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Phonetex shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Phonetex becomes overdue, or in Phonetex’ opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
- Security and Charge
12.1 Despite anything to the contrary contained herein or any other rights which Phonetex may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Phonetex or Phonetex’ nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Phonetex (or Phonetex’ nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Phonetex elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Phonetex from and against all Phonetex’ costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Phonetex or Phonetex’ nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.
13.1 Phonetex may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Phonetex shall repay to the Client any sums paid in respect of the Price. Phonetex shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Phonetex (including, but not limited to, any loss of profits) up to the time of cancellation.
13.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
- Privacy Act 1988
14.1 The Client and/or the Guarantor/s agree for Phonetex to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Phonetex.
14.2 The Client and/or the Guarantor/s agree that Phonetex may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
14.3 The Client consents to Phonetex being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4 The Client agrees that personal credit information provided may be used and retained by Phonetex for the following purposes and for other purposes as shall be agreed between the Client and Phonetex or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Phonetex, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
14.5 Phonetex may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
- Equipment Hire and Rental
15.1 The Equipment shall at all times remain the property of Phonetex and is returnable on demand by Phonetex. In the event that the Equipment is not returned to Phonetex in the condition in which it was delivered Phonetex retains the right to charge the Price of repair or replacement of the Equipment.
15.2 The Client shall;
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.
(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Phonetex to the Client.
15.3 The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self-insure, Phonetex’ interest in the Equipment and agrees to indemnify Phonetex against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
16.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
16.3 Phonetex shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Phonetex of these terms and conditions.
16.4 In the event of any breach of this contract by Phonetex the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
16.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Phonetex nor to withhold payment of any invoice because part of that invoice is in dispute.
16.6 Phonetex may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
16.7 The Client agrees that Phonetex may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Phonetex notifies the Client of such change.
16.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
16.9 The failure by Phonetex to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Phonetex’ right to subsequently enforce that provision.