These supply terms and conditions (Supply Terms) apply to all goods, materials, equipment and parts (Goods) provided by Mobile HQ Pty Ltd (ACN 151 107 943) (Mobile HQ) to any customer who purchases Goods or places an order to purchase Goods (Customer).
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 Mobile HQ and the Customer in relation to the supply or delivery by Mobile HQ 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 Mobile HQ and the Customer:
(a) have no effect, and will not affect any agreement between Mobile HQ and the Customer pursuant to these Supply Terms, even if Mobile HQ 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 Mobile HQ without prior notice. Publication of the amended Supply Terms on Mobile HQ's website, www.mobilehq.com.au , 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. Mobile HQ may, but is not required, to notify the Customer of any amendment to the Supply Terms.
1.4 Mobile HQ 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 Mobile HQ.
The price of any Goods will be as set out in the Mobile HQ's catalogues and price lists issued to the Customer, from time to time, as adjusted in accordance with any applicable discounts Mobile HQ agrees with the Customer. If Goods are purchased on Mobile HQ'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 Mobile HQ (Order), whether in writing, electronically, online or verbal, submitted to Mobile HQ shall be deemed to be made pursuant and subject to these Supply Terms.
3.2 All Orders will be subject to acceptance by Mobile HQ and Mobile HQ may decline or accept an Order, in whole or in part, in its absolute discretion. Customers acknowledge that acceptance of an Order by Mobile HQ does not imply that Mobile HQ will accept any future Orders placed by the Customer.
3.3 The Customer may not cancel any Order accepted by Mobile HQ or any part of that Order without obtaining Mobile HQ’s prior written consent, which may be withheld by Mobile HQ for any reason, and then only on such terms (including as to the payment of any cancellation fee) as Mobile HQ may determine.
3.4 Mobile HQ 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 Mobile HQ and the Customer agree that the Customer will collect Goods from Mobile HQ's premises: (a) the Customer must collect the Goods within 7 days of being advised by Mobile HQ that the Goods are ready for collection; (b) Mobile HQ 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 Mobile HQ and the Customer agree that Mobile HQ 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 Mobile HQ'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 Mobile HQ's premises.
4.3 If the Customer does not, or indicates to Mobile HQ that it will not, collect the Goods in accordance with clause 4.1 or take or accept delivery of the Goods delivered by Mobile HQ in accordance with clause 4.2:
(a) the Goods are deemed to be delivered when Mobile HQ advised the Customer the Goods are ready for collection or when Mobile HQ was willing to deliver the Goods (as applicable) and Mobile HQ may invoice the Customer for those Goods; and
(b) the Customer is liable for any costs and expenses incurred by Mobile HQ to return the Goods to Mobile HQ premises and store the Goods.
4.4 Mobile HQ will use reasonable endeavours to have the Goods ready for collection or delivered in accordance with the time frame agreed with the Customer. Mobile HQ 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 Mobile HQ will determine the invoice amount for an Order with reference to Mobile HQ's catalogues, price lists and any applicable discounts Mobile HQ agreed with the Customer. If the Goods are purchased online, Mobile HQ 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 Mobile HQ, all prices stated in Mobile HQ’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 Mobile HQ 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 Mobile HQ; 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 Mobile HQ.
5.4 If Mobile HQ 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 Mobile HQ in writing (Due Date).
5.5 Mobile HQ reserves the right to refuse credit facilities to any purchaser. Mobile HQ 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. Mobile HQ will notify the Customer via email or telephone if the account is put on hold.
5.7 If Mobile HQ does not receive payment by the Due Date, then without limiting its rights, Mobile HQ 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 Mobile HQ 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 Mobile HQ 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 Mobile HQ, amounts owed to the Customer by Mobile HQ 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 Mobile HQ from time to time:
(a) the legal and beneficial ownership of the Goods remain with Mobile HQ and will not pass to the Customer;
(b) the Customer holds the Goods as bailee for Mobile HQ (and will return such goods to Mobile HQ on request) and must separately store the Goods in such a way that makes it clear that the Goods are the property of Mobile HQ; and
(c) the Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of Mobile HQ (provided that there will be no right to bind Mobile HQ 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 Mobile HQ 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 Mobile HQ, then Mobile HQ has the right (without giving notice) to retake possession of the Goods supplied to the Customer by Mobile HQ and the Customer hereby authorises and allows Mobile HQ 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 Mobile HQ is not liable for any costs, losses, damages, expenses or any other monies or lossess suffered by the Customer as a result of Mobile HQ 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 Mobile HQ has a purchase money security interest in the Goods supplied under these Supply Terms.
7.2 The Customer acknowledges that Mobile HQ may register the security interest in the Goods on the Personal Property Securities Register.
7.3 The Customer agrees to do anything that Mobile HQ reasonably requires to ensure that Mobile HQ 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 Mobile HQ in relation to the Goods under these Supply Terms.
7.6 To the extent permissible by law, the Customer and Mobile HQ 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 Mobile HQ other than as set out in these Supply Terms.
8.2 The Customer must submit and notify Mobile HQ 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 Mobile HQ must be posted to Mobile HQ’s Head Office, located at 9 Frankston Gardens Drive Carrum Downs VIC 3201, accompanied by a satisfactorily completed Mobile HQ Warrant Returns Form which is available on Mobile HQ’s website at www.mobilehq.com.au .
8.4 If the Customer notifies Mobile HQ of a defect in accordance with 8.2, Mobile HQ may choose to refund, replace or repair the Goods or provide any other remedy it chooses.
8.5 Where Mobile HQ refunds, replaces or pays for the replacement of Goods, the Goods being refunded or replaced must, at Mobile HQ's option, be destroyed or returned to Mobile HQ, at the Customer's expense, and if returned become Mobile HQ'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 Mobile HQ of the Goods affected and provide all reasonable information requested by Mobile HQ.
9.2 If the Customer is directed by Mobile HQ 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 Mobile HQ, 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 Mobile HQ'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 Mobile HQ in which case Mobile HQ 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 Mobile HQ 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 Mobile HQ 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 Mobile HQ 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 Mobile HQ 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 Mobile HQ, 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 Mobile HQ, the business conducted by Mobile HQ, and its transactions, pricing, operations and affairs;
(b) all pricing information of Mobile HQ, including all prices stated in Mobile HQ’s catalogues, price lists, website or in any invoice issued to the Customer;
(c) all trading terms between Mobile HQ and the Customer;
(d) all other information treated by Mobile HQ as confidential, including the existence of a relationship between the Customer and Mobile HQ;
(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 Mobile HQ; 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 Mobile HQ 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 Mobile HQ'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 Mobile HQ, 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) Mobile HQ'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) Mobile HQ 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 Mobile HQ 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 Mobile HQ 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 Mobile HQ in writing), to the extent permitted by law, Mobile HQ'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 Mobile HQ 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 Mobile HQ 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 Mobile HQ’s reasonable control which results in Mobile HQ 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 Mobile HQ 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 Victoria. Mobile HQ and the Customer consent and submit to the non-exclusive jurisdiction of the courts of Victoria.
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 Mobile HQ's consent.