Terms & Conditions
1. Applicant details
Customer Name: (as provided above in completed web form)2. Definitions and interpretation
2.1 Definitions
Additional Charge means:
(a) fees or charges for additional work performed at the Customer's request or reasonably required as a result of the Customer's conduct, calculated in accordance with the Supplier's then current prices; and
(b) expenses incurred by the Supplier, at the Customer's request or reasonably required as a result of the Customer's conduct.
Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Goods are provided.
Customer means the person identified on this application form or Order as the customer and includes the Customer's agents and permitted assigns.
Goods mean any goods supplied by the Supplier.
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs.
Loss includes, but is not limited to, costs (including party to party legal costs and the Supplier's legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Minimum Order Value means a total Order value of not less than NZD$250.00 worth of Goods or if any Goods are not available at the time of ordering and are required to be placed on backorder, an amount of NZD$100.00 worth of Goods placed on backorder.
Order means a purchase order for Goods placed by a Customer on the Website and as varied in writing from time to time by the parties.
PPS Law means:
(a) the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and
(b) any amendment made at any time to any other legislation as a consequence of a PPS Law.
Supplier means Splosh Ltd (NZ) and its subsidiaries, associates, officers, agents and permitted assigns.
Trading Terms means these trading terms and the Terms of Use that govern use of the Website and can be viewed at splosh.co.nz/terms-and-conditions.
Website means the Supplier’s website located at splosh.com.au
2.2 Interpretation
In these Trading Terms, unless the context otherwise requires:3. General
(a) These Trading Terms apply to all transactions between the Customer and the Supplier relating to the provision of Goods. This includes all quotations, contracts and variations. These Trading Terms take precedence over Trading Terms contained in any document of the Customer or elsewhere.
(b) The variation or waiver of a provision of these Trading Terms or a party's consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
(c) The Supplier may amend any details by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
(d) The Supplier may, at its sole discretion, supply Goods to any current or future person or entity that requests to purchase Goods from the Supplier. The Customer acknowledges and agrees that nothing contained in these Trading Terms entitles the Customer under any circumstance to exclusive supply of Goods by the Supplier.
(e) The Customer has no entitlement to credit unless, in the Supplier's sole discretion, the Supplier extends credit to the Customer.
(f) The Supplier will reserve the right to, at any time and for any reason at the Supplier's sole discretion, refuse the supply of any further Goods to the Customer on credit terms. This applies regardless of whether the Supplier has allowed the Customer to purchase Goods on credit at any particular time. If at any time the Supplier does refuse to grant the Customer credit for the purchase of Goods, this refusal does not affect the Trading Terms applicable to any amounts the Customer then owes the Supplier for previous purchases.
(g) The credit limit approved by the Supplier and advised to the Customer must not be exceeded. The Supplier periodically reviews its credit limits. By signing these Trading Terms, the Customer permits the Supplier to review and revise its credit limit from time to time. The Supplier may increase or reduce the Customer’s credit limit at the Customer’s specific request. The Supplier may also reduce the Customer’s credit limit without approval, but the Supplier will not reduce the Customer’s credit limit below the outstanding balance on the Account at the time of the reduction without prior communication with the Customer.
4. Orders
(a) Every Order by the Customer for the provision of Goods must be in writing, unless otherwise agreed, and be submitted:
(i) on the Supplier’s website;
(ii) at a trade fair with a representative of the Supplier;
(iii) in-store with a representative of the Supplier;
(iv) by email to sales@sposh.com.au; or
(v) by facsimile to +61 7 3805 5056.
(b) An Order will only be deemed to be placed by the Customer if the Order clearly identifies the Goods ordered and complies with the Minimum Order Value. Any costs incurred by the Supplier in reliance on incorrect or inadequate information provided by the Customer in an Order may result in the imposition of an Additional Charge.
(c) If the Order does not comply with the Minimum Order Value then the Order will not be processed and the Customer will need to resubmit a new Order for the Goods that comply with the requirements of clause 4(b) of these Trading Terms.
(d) Placement of an Order by the Customer signifies acceptance by the Customer of these Trading Terms.
(e) The Supplier may in its absolute discretion refuse to provide Goods where:
(i) Goods are unavailable for any reason whatsoever;
(ii) credit limits cannot be agreed upon or have been exceeded; or
(iii) payment for Goods previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of the Supplier, associated with the Customer under the same or another supply contract, has not been received by the Supplier.
(f) An Order cannot be cancelled without the prior written consent of the Supplier. The Customer may request that its Order be cancelled by providing a request in writing to the Supplier by email to sales@sposh.com.au or by facsimile to +61 7 3805 5056. The Order may be cancelled by and at the sole discretion of the Supplier.
(g) The Supplier may, at its sole discretion, charge the Customer a cancellation fee equivalent to 20% of the total of the Order or $50.00, whichever is greater, where the Supplier has, at the Customers request, cancelled the Customer’s Order.
(h) The Customer acknowledges that the Supplier will not buy back Goods from the Customer. The Customer agrees that, upon delivery of Goods in accordance with the Customer’s Order, all sales are firm except as otherwise provided in these Trading Terms.
(i) Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the Australian Consumer Law.
5. Variations
(a) The Customer may request that its Order be varied by providing a request in writing to the Supplier by email to sales@sposh.com.au or by facsimile to +61 7 3805 5056. A request for a variation must be agreed to by the Supplier in order to have effect.
(b) If the Supplier is unable to supply Goods for any reason, including but not limited to Goods being unavailable, the Supplier may contact the Customer and request the Customer vary its Order or offer the Customer alternative Goods.
6. Invoicing and payment
(a) The Supplier will issue an invoice to the Customer upon completion of the provision of the Goods or any time thereafter, for an amount representing the Supplier's charge for the work performed in completing the Order, any Additional Charges and any freight and transport costs including in-transit insurance.
(b) The amount payable by the Customer will be the amount set out in the invoice.
(c) The Customer must pay an invoice issued by the Supplier to the Supplier within twenty (20) days from end of month of a valid tax invoice being issued to the Customer.
(d) If any invoice is due but unpaid, the Supplier may withhold the provision of any further Goods until overdue amounts are paid in full.
(e) The Supplier may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.
(f) The Customer is not entitled to retain any money owing to the Supplier notwithstanding any default or alleged default by the Supplier of these Trading Terms, including (but not limited to) the supply of allegedly faulty or defective Goods or a delay in the provision of Goods. Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the Australian Consumer Law.
(g) The Customer must pay the Supplier on demand interest on all overdue amounts owed by the Customer to the Supplier from when the amount becomes due for payment until it is paid. Interest is calculated on a daily balance at a rate of twelve per centum (12%) per annum.
(h) All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under these Trading Terms.
(i) The Customer and the Supplier agree to comply with their obligations in relation to Goods and Services Tax (GST) under the Inland Revenue Department (Goods and Services Tax) Act 1985 and any other applicable legislation governing GST.
7. Additional Charges
(a) The Supplier may require the Customer to pay Additional Charges in respect of Costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Goods within the specified time frame (if any).
(b) The imposition of Additional Charges may also occur as a result of:
(i) courier charges; and
(ii) additional work required by the Customer or any other occurrence which causes the Supplier to incur costs in respect of the Customer's Order.
8. Acceptance of Goods
(a) The Customer must, on delivery of the Goods, carry out a thorough inspection of the Goods to make sure that all Goods have been delivered in accordance with the Customer’s Order. A representative of the Customer must sign a delivery receipt acknowledging that all Goods have been delivered in accordance with the Customer’s Order and the Customer agrees that such acknowledgement shall be deemed receipt of the Goods in accordance with the Customer’s Order.
(b) If the Customer fails to advise the Supplier in writing of any fault in Goods or failure of Goods to accord with the Customer's Order within seven (7) days of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer's Order.
(c) The Customer must comply with any reasonable request by the Supplier, including but not limited to any request for photographic evidence, in relation to any claim by the Customer of a fault in Goods or failure of Goods to accord with the Customer’s Order.
(d) Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the Australian Consumer Law.
9. Title and risk
(a) Risk in Goods passes to the Customer immediately upon delivery.
(b) Property and title in Goods supplied to the Customer under these Trading Terms does not pass to the Customer until all money (including money owing in respect of other transactions between the Supplier and the Customer) due and payable to the Supplier by the Customer have been fully paid.
(c) Where Goods are supplied by the Supplier to the Customer without payment in full, the Customer:
(i) is a bailee of the Goods until property in them passes to the Customer;
(ii) irrevocably appoints the Supplier to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of the Supplier with respect to the Goods under applicable law;
(iii) agrees that the Supplier may repossess the Goods if payment is not made within sixty (60) days (or such longer time as the Supplier may, in its complete discretion, approve in writing) of the supply of the Goods; and
(iv) the Customer grants an irrevocable licence to the Supplier or its agent to enter the Customer's premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies the Supplier for any damage to property or personal injury which occurs as a result of the Supplier entering the Customer's premises.
10. Agency and assignment
(a) The Customer agrees that the Supplier may at any time appoint or engage an agent to perform an obligation of the Supplier arising out of or pursuant to these Trading Terms.
(b) The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these Trading Terms provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under these Trading Terms.
(c) The Customer is not to assign, or purport to assign, any of its obligations or rights under these Trading Terms without the prior written consent of the Supplier.
11. Default by Customer
(a) Each of the following occurrences constitutes an event of default:
(i) the Customer breaches or is alleged to have breached these Trading Terms for any reason (including, but not limited to, defaulting on any payment due under these Trading Terms) and fails to remedy that breach within 14 days of being given notice by the Supplier to do so;
(ii) the Customer, being a natural person, commits an act of bankruptcy;
(iii)the Customer, being a corporation, is subject to:
(A) a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
(B) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer's property and undertaking;
(C) the entering of a scheme of arrangement (other than for the purpose of restructuring); and
(D) any assignment for the benefit of creditors;
(iv) the Customer purports to assign its rights under these Trading Terms without the Supplier's prior written consent;
(v) the Customer ceases or threatens to cease conduct of its business in the normal manner;
(vi) the Customer obtains credit by fraud or dishonesty; or
(vii) any person who has guaranteed the Customers obligations under the credit facility withdraws his, her or their guarantee.
(b) Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:
(i) terminate these Trading Terms;
(ii) terminate any or all Orders and credit arrangements (if any) with the Customer;
(iii) refuse to deliver Goods;
(iv) pursuant to clause 9(c), repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
(v) retain (where applicable) all money paid by the Customer on account of Goods or otherwise.
(c) In addition to any action permitted to be taken by the Supplier under paragraph 11(b), on the occurrence of an event of default all invoices will become immediately due and payable.
12. Termination
In addition to the express rights of termination provided in these Trading Terms, a party may terminate these Trading Terms by giving written notice to the other party.
13. Exclusions and limitation of liability
(a) The Customer expressly agrees that use of the Goods is at the Customer's risk. To the full extent allowed by law, the Supplier's liability for breach of any term implied into these Trading Terms by any law is excluded.
(b) All information, specifications and samples provided by the Supplier in relation to the Goods are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Customer's use of the Goods will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.
(c) Under no circumstances is the Supplier or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
(i) any Goods supplied to the Customer;
(ii) any delay in supply of the Goods; or
(iii)any failure to supply the Goods.
(d) Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer's reliance on such advice, recommendation, information, assistance or service.
(e) To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods, whether based on Trading Terms, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.
(f) The Customer acknowledges that the Goods are not for personal, domestic or household purposes.
(g) The Australian Consumer Law may give to the Customer certain guarantees. Where liability for breach of any such guarantee can be limited, the Supplier's liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods.
14. Indemnity
(a) The Customer indemnifies and keeps indemnified the Supplier in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Supplier or, for which the Supplier is liable, in connection with any Loss arising from or incidental to the provision of Goods, any Order or the subject matter of these Trading Terms.
(b) This includes, but is not limited to, any legal costs incurred by the Supplier in relation to meeting any claim or demand or any party/party legal costs for which the Supplier is liable in connection with any such claim or demand.
(c) This provision remains in force after the termination of these Trading Terms.
15. Force majeure
(a) If circumstances beyond the Supplier's control prevent or hinder its provision of the Goods, the Supplier is free from any obligation to provide the Goods while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
(b) Circumstances beyond the Supplier's control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
16. Dispute resolution
(a) If a dispute arises between the Customer and the Supplier, the following procedure applies:
(i) A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this clause.
(ii) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
(iii) A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
(b) If a dispute is notified, the dispute must immediately be referred to the parties' respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within thirty (30) Business Days (or other period as agreed).
(c) Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Disputes Tribunal of New Zealand (DTNZ) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the DTNZ Guidelines for Commercial Mediation which operates at the time the matter is referred to DTNZ. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these Trading Terms. This paragraph survives termination of these Trading Terms.
(d) Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these Trading Terms.
(e) The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
17. Director’s Guarantee
If the Customer is a body corporate, the Supplier requires one or more of the Customer’s directors or officers to sign the personal guarantee as detailed in section 20.
18. Miscellaneous
(a) These Trading Terms are governed by the laws of Queensland and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.
(b) These Trading Terms and written variations agreed to in writing by the Supplier represent the whole agreement between the parties relating to the subject matter of these terms.
(c) These Trading Terms supersede all oral and written negotiations and communications by and on behalf of either of the parties.
(d) In entering into these Trading Terms, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these Trading Terms.
(e) If any provision of these Trading Terms at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
(f) A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.
(g) A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on this application form (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified on this application form; sent by fax to the fax number of the addressee specified on this application form, with acknowledgment of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified on this application form with acknowledgement of delivery.
(h) A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by fax or email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
(i) A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.
(j) The Customer acknowledges that it has read the Supplier’s Privacy Policy. The Customer hereby irrevocably authorises the Supplier to obtain:
(i) information about the Customer from any credit provider, whose details are provided to the Supplier by the Customer, including but not limited to the Customer’s compliance with any trading terms or conditions of the credit provider; and
(ii) a credit report in respect of the Customer from any credit agency.
19. Execution
In applying for credit with the Supplier, we, the Customer, acknowledge that any credit granted fol-lowing this application will be subject to the Trading Terms stated in this application or as subse-quently varied by the Supplier at its discretion and advised to the Customer.
20. Personal Guarantee
I, the owner/director of the residential address provided above, hereby apply on behalf of the Customer, for an account to be opened with the Supplier and in consideration of the Splosh Australia Pty Ltd (“the Supplier”) agreeing, at my request, to supply the Customer with goods in the way of the trade or business carried on by the Customer:
(a) I warrant that I am a principal of the Customer and am authorised to make this application on the Customer’s behalf.
(b) I warrant that the information contained in this application is true and correct.
(c) I agree to guarantee and to be answerable and responsible to the Supplier for the due payment by the Customer for or in connection with any Goods as the Supplier may from time to time at the Customer’s request supply to the Customer.
(d) I agree this guarantee extends to and be applicable to the whole debt due to the Supplier from the Customer.
(e) I agree the Supplier may at any time in the Supplier’s absolute discretion, and without giving any notice whatsoever to us, refuse further credit or supplies to the Customer and grant to the Customer or to any drawers, acceptors or endorsers of bills of exchange, promissory notes or other securities received by the Supplier from the Customer, or on which the Customer may be liable to the Supplier at any time, any other indulgence and compound with the Customer or those other drawers, acceptors or endorsers respectively, without discharging or impairing our liability under this guarantee.
(f) I agree this guarantee is enforceable notwithstanding that any negotiable or other securities referred to in this guarantee, or to which it extends or is applicable, are outstanding or in circulation at the time of proceedings taken against us under this guarantee.
(g) I agree no changes in the constitution of the Supplier’s firm can impair or discharge our liability under this guarantee.
(h) I agree this guarantee is revocable at our option at any time as to future transactions by thirty (30) days’ notice in writing given to the Supplier.
(i) I indemnify and keeps indemnified the Supplier in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Supplier or, for which the Supplier is liable, in connection with any Loss arising from or incidental to the provision of Goods, any Order or the subject matter of the Trading Terms.
