TERMS AND CONDITIONS
SIT LESS PTY LTD.
ABN 11 609 026 744
These Terms and Conditions (“Terms”) comprise the entire Agreement between Sit Less Pty Ltd (“Sit Less”) and the Client (“Client”) referred to in the quotation and sales confirmation on the front page of this Form (“Sales Confirmation”) (and subsequent Sit Less forms). Any other contractual terms of the Client (whether upon the Client’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By signing the Sales Confirmation in respect of the goods referred to in the Sales Confirmation (“Goods”) or the Services referred to in the Sales Confirmation (“Services”) supplied by Sit Less, the Client shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all others other than any terms which are implied by law. All Goods and Services will be charged at the prices set out in the Sales Confirmation unless otherwise agreed by the parties. Sit Less must supply the Client with Tax Invoices in accordance with GST law.
2. CREDIT TERMS
2.1 A deposit of 50% is payable on confirmation of the order (unless otherwise agreed in writing by Sit Less) with the balance payable on delivery of the Goods unless Sit Less, in its discretion, provides credit to the Client which in no event will extend beyond 30 days from the date of delivery. Sit Less will be entitled to charge interest at a rate of 14% per annum if payment is not received by any due date.
2.2 The Client is liable for all reasonable expenses including legal costs incurred by Sit Less for enforcement of obligations and recovery of monies due from the Client to Sit Less.
2.3 An accounting fee of AUD$100.00 is payable in respect of any dishonoured cheque presented to Sit Less.
2.4 All payments due under these Terms must be made in full without any deduction, withholding, set-off or counterclaim on account of any tax, levy or impost of any kind or any claim that the Client may have against Sit Less.
3. DELIVERY & SUPPLY
3.1 Any times quoted for delivery of any Goods or Services are estimates only and Sit Less shall not be liable for failure to deliver, or for delay in delivery. The Client shall not be relieved of any obligation to accept or pay for Goods or Services, by reason of any delay in delivery or dispatch. Sit Less will also not be liable for any failure to supply any Goods which do not comply with any agreed specifications (or any specifications referred to in the Sales Confirmation) (“the Specifications”) if the Goods comply with the tolerances permitted under the relevant AQL standard(s). A copy of those standards is available upon request.
3.2 Sit Less reserves the right to stop supply at any time if the Client fails at any time to comply with the Terms.
3.3 Despite anything in these Terms, Sit Less shall not be liable to the Client for any damage caused to the Goods after they have been delivered to the Client, including, without limitation, any damage when the Goods are being transported by the Client.
3.4 The Client must notify Sit Less in writing of any price discrepancy, defect in the Goods or other matters within 7 days of its receipt of a delivery of Goods from Sit Less. If the Client neglects to comply with this clause, the Client shall be deemed to have accepted the Goods delivered to it by Sit Less without dispute or disagreement in relation to the price of the particular delivery of Goods or any discrepancy or defect in the Goods.
3.5 Without limiting clause 3.4, the Client’s exclusive remedy and Sit Less' limit of liability for any and all claims with respect to the Goods, shall be for the replacement of the particular Goods with respect to which such claims are asserted. Sit Less shall not be liable for indirect, special, incidental consequential, or punitive damages resulting from the use of the Goods or arising out of any breach of these Terms or if the Goods deviate from the Specifications or if there is a breach by Sit Less of applicable law.
3.6 Without limiting the rights of Sit Less under this Clause 3, if Sit Less is unable to deliver Goods to the Client on or before a scheduled delivery date for any reason whatsoever beyond the control of Sit Less, then Sit Less may: (a) deliver those Goods to the Client after cessation of any such disabling event and these Terms will continue to have full force and effect as though the delivery was made on or before the scheduled delivery date; or (b) rescind these Terms in which case the Client will have no recourse against Sit Less except for a refund of any part of price paid in respect of those Goods.
4. PROPERTY AND RISK
4.1 Risk in the Goods passes to the Client (including for insurance purposes) after the Goods are delivered to the Client.
4.2 Notwithstanding delivery and passing of risk, the title and property in the Goods supplied by Sit Less shall remain with Sit Less until the Client has paid all monies owed by it to the Client, including without limitation where there has been part-payment.
5. Personal Property Securities Act 2009 (Cth) (‘PPSA’)
5.1 This clause will apply in relation to clause 4 of these Terms. All capitalised in this clause that are not defined have the meanings given in the PPSA.
5.2 For so long as any of the monies owing by the Client to Sit Less remain unpaid, the Client acknowledges that:
(i) by virtue of clause 4 of the Terms, Sit Less has a Security Interest in the Goods and their Proceeds under the PPSA and these Terms constitute a Security Agreement that covers the Goods for the purposes of the PPSA;
(ii) Sit Less’ Security Interest under clause 4 secures all monies owing by the Client to Sit Less;
(iii) the Client shall hold the Proceeds from the sale of any of the Goods on trust for Sit Less;
(iv) the Client will not grant or seek to grant any Security Interest in the Goods adverse to the Security Interest of Sit Less;
(v) to the extent that a Security Interest secures payment of the amounts owing in relation to the Goods, Sit Less’ Security Interest over the Goods and their Proceeds is a Purchase Money Security Interest;
(vi) Sit Less’ Security Interest attaches to the Goods when the Buyer attains possession of the Goods;
(vii) it must keep the Goods separate from other goods and maintain the labelling and packaging of Sit Less so that the Goods are readily identifiable as the property of Sit Less however, failure to comply will not affect Sit Less’ Security Interest; and
(ix) Sit Less may apply to register a Security Interest in the Goods at any time before or after delivery of the Goods. To the extent permissible under the PPSA, the Client waives its right to receive notice of any verification of the registration
5.3 In relation to all Security Interests governed by these terms, the Client undertakes to:
(i) execute all documents and provide all information which Sit Less may require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPS Register;
(ii) indemnify and upon demand reimburse Sit Less for all expenses incurred in registering a Financing Statement or Financing Change Statement in relation to Security Interests on the PPS Register or releasing any Security Interests, including any maintenance or other fees Sit Less is required by the Registrar to pay under the PPSA;
(iii) not register or permit to be registered a Financing Change Statement in the Goods without the prior written consent of Sit Less; and
(iv) provide Sit Less with not less than 7 days prior written notice of any proposed change in the Client’s name, address, contact numbers, business practice or any other such change in the Client’s details registered on the PPS Register to register a Financing Change Statement if required.
5.4 If the Client defaults under these Terms, Sit Less is and will be entitled at any time to demand the return of the Goods subject to Security Interests under these Terms, the Client must do all things necessary to immediately permit Sit Less, without notice and without liability to the Client, to enter and access any premises occupied by the Client in order to search for, locate, identify retrieve and remove those Goods in which Sit Less has a Security Interest.
5.5 Pursuant to section 157 of the PPSA, unless otherwise agreed to in writing by Sit Less, the Client waives the right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest.
5.6 In addition, to the extent permitted by the PPSA, if there is any inconsistency between the Sit Less’ rights under clause 5.4 and its rights under Chapter 4 of the PPSA, clause 5.4 prevails.
No cancellations or partial cancellation of any order by the Client shall be accepted by Sit Less unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Sit Less, will indemnify Sit Less against all loss, without limitation.
7. LOST, INCOMPLETE OR DAMAGED SHIPMENTS
All complaints or notification of lost Goods, incomplete Goods, or damaged Goods must be submitted by the Client to Sit Less in writing within seven (7) days of the date of the invoice rendered for the Goods with such evidence as is reasonably required by Sit Less. Otherwise, the Client shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, or damaged.
8. PRIVACY ACT 1988 (“Privacy Act”)
To enable Sit Less to assess the Customer’s application for credit, the Client authorises Sit Less :-
8.1 To obtain from a credit reporting a credit report containing personal information about the Client pursuant to Section 18K(1)(b) of the Privacy Act;
8.2 To obtain a report from a credit reporting and other information in relation to the Customer’s commercial credit activities.
AND in accordance with Section 18N(1)(b) of the Privacy Act the Client authorises Sit Less to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting information about the Customer’s credit arrangements. The Client understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act. The Client understands the information can be used for the purposes of assessing its application for credit (Section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, notifying other credit providers of a default by it and assessing its credit worthiness.
The Client must notify Sit Less in writing within seven (7) days of:
9.1 Any alteration of the name or ownership of the Client.
9.2 The issue of any legal proceedings against the Client.
9.3 The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Client.
9.4 Any change in the ownership of the business name of the Client.
The Client agrees that it shall be liable to Sit Less for all Goods or Services supplied to the new owner by Sit Less until notice of any such change is received.
All Sit Less products will remain free of defects in material and workmanship from the date of receipt by the customer:
10.1 Warranty Period:
Sit Less Desks – Limited Warranty of five (5) years from receipt of delivery.
Sit Less Mats – Limited Warranty of one (1) year from receipt of delivery.
10.2 Further Exclusions and Limitations:
These warranties do not cover product abuse, modification and failure to adhere to product instructions, improper operations and/or misuse. Sit Less Pty Ltd is not responsible for damage arising from failure to follow instructions relating to the product’s intended use.
Sit Less Pty Ltd does not warrant damages or defects to the Sit Less Pty Ltd products under the following conditions:
I. An Act of God.
II. Unauthorised service or repair of Sit Less Pty Ltd products.
III. Damage from electrical disturbance.
IV. Usage of parts or components not supplied by Sit Less Pty Ltd.
V. Failure to follow product instructions and guidelines.
VI. Unauthorised changes to the Sit Less Pty Ltd product.
VII. Freight or shipping damage (other than original shipment from Sit Less Pty Ltd).
VIII. Damage caused by misuse and/or from other external sources.
10.3 Exclusive Remedy:
(I) Warranty Repair:
In the event that any Sit Less Pty Ltd equipment becomes defective in material or workmanship during the warranty period, Sit Less Pty will determine with you if the product defect is covered under warranty. Sit Less Pty Ltd, at its sole discretion, may replace or repair the product determined to be under warranty at a designated Sit Less Pty Ltd location or at your location. The labour costs associated with the repair of the product may be the responsibility of Sit Less pty Ltd if determined to be under warranty. You must receive pre-approval by Sit Less Pty Ltd for the labour costs prior to repair or replacement of warranty products. You must contact Sit Less Pty Ltd to obtain a Warranty Claim Authorisation (WCA) number. A WCA number may be obtained by contacting Sit Less Pty Ltd Support online or by telephone. All contact information is available on the Sit Less Pty Ltd website at www.askisi.com Performance of any repair or replacement under product warranty does not renew or extend the warranty period.
(II) Non-Warranty Repair:
You may return a product for repair that is not covered by warranty by contacting Sit Less Pty Ltd to obtain Product Repair Authorisation (PRA) number. A PRA number may be obtained by contacting Sit Less Pty Ltd Support online or by telephone. All contact information is available on the Sit Less Pty Ltd website at www.askisi.com. Labour costs and freight charges associated with non-warranty repair will be the sole responsibility of the customer, reseller or installer/integrator. A standard repair fee, specific to the product, is charged for any product that is repaired outside of the warranty period. Repairs on products out of warranty also carry a 90-day warranty, effective the day that you receive the item after repair.
For products that are not covered under warranty, Sit Less Pty Ltd will offer the following options:
1. You may upgrade to a newer, functionally equivalent product at the normal Sit Less Pty Ltd tariff price, inclusive of the Sit Less Pty Ltd buy-back program.
2. Sit Less Pty Ltd will return the product to you.
3. You can request in writing that Sit Less Pty Ltd appropriately dispose of the product for you. A fee may apply for this service as designated by local law
10.4 Non-Defective Products:
You will be notified if, after examining and testing a returned product, Sit Less Pty Ltd concludes that the product is not defective. The product is returned to you and you would be responsible for the freight or shipping charges associated with the return.
10.5 Warranty Disclaimer:
Except as expressly set forth in this Limited Warranty and to the greatest extent allowed by law, Sit Less Pty Ltd makes no other representations, warranties or conditions, express or implied, including any implied representations, warranties or conditions of merchantability, fitness for a particular purpose, non-infringement, and non-interference. Sit Less Pty Ltd does not warrant that your use of any Sit Less Pty Ltd product will be uninterrupted or error free. Any implied warranties that may be imposed by law are limited in duration to the Limited Warranty period, to the greatest extent allowed by law. Some states or countries do not allow a limitation on how long an implied warranty lasts or the exclusion or limitation of incidental or consequential damages for consumer products. In such states or countries, some exclusions or limitations of this Limited Warranty may not apply to you. This Limited Warranty is subject to change without notification.
Sit Less Pty Ltd devices are not intended to cure, treat, mitigate or prevent any disease.
10.6 Warranty Transfer:
This Limited Warranty is available only to the original customer and is non-transferable. For this warranty to be valid, the Sit Less Pty Ltd product must have been purchased directly from Sit Less Pty Ltd or an authorised distributor, reseller and/or authorised representative/agent of Sit Less Pty Ltd.
10.7 No liability is assumed by Sit Less Pty Ltd for damage and/or injury resulting from use of products supplied by this company.
11. LEGAL CONSTRUCTION
These Terms shall be governed and interpreted according to the laws of Victoria, Australia and Sit Less and the Client irrevocably consent and submit to the exclusive jurisdiction of the Courts of Victoria and any courts competent to hear appeals from those courts. Notwithstanding that any provision of the Terms may prove 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 legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.
12. LIMITATION OF LIABILITY
If Sit Less is held liable in respect of Goods for a breach of a condition or consumer guarantee implied by Division 1 of Part 3-2 of the Australian Consumer Law, or the Goods Act 1958 (Vic) or equivalent statutes of any relevant jurisdiction, any liability for such breach will be limited at the option of Sit Less to any of the following as determined in the sole discretion of Sit Less: (a) a replacement of those Goods or the supply of equivalent Goods; (b) the payment of the value of the Goods or of replacing the Goods or of acquiring equivalent Goods; (c) the repair or restoration of the Goods; or (d) the payment of the costs of having the Goods repaired or restored.
13. HANDLING AND STORAGE
All reasonable steps must be taken by the Client to ensure that handling and storage of the Goods is appropriate for that type of Goods and minimises the risk of the product being damaged or deteriorating. The Client must not alter, adapt or disassemble the product in any way, or alter its packaging, labelling or presentation, without Sit Less’ written consent.
14. PRODUCT LIABILITY INSURANCE
The Client must arrange for occurrence-based Product Liability insurance of not less than AUD$10,000,000 per claim in any year with a reputable insurer and maintain that policy throughout any period during which it sells the products. The Client must give Sit Less proof that the policies are in place as soon as practicable and, in any event, no later than 28 days after the Client starts selling the products.
15. PRODUCT RECALLS
The Client must co-operate fully with Sit Less if Sit Less decides to recall any stocks of the Product. The Client must pay all costs and expenses associated with the recall, unless the recall is solely caused by Sit Less.
16. INTELLECTUAL PROPERTY
Sit Less retains ownership of all Intellectual Property in relation to the Goods and Services provided to or submitted by Sit Less to the Client, including all artwork, mock ups, prototypes and drawings submitted by Sit Less to the Client from time to time. “Intellectual Property” means all copyright, design rights, trade mark rights and technical information relating to or vested in any designs, products or other works of any nature which are submitted, prepared and/or procured by Sit Less for or in relation to or as requested by the Client. Without limiting the foregoing, the Client acknowledges that it must not without the written consent of Sit Less utilise or commercialise in any way any of the Intellectual Property or sell or distribute any products which are the same or similar to the products, drawings, artwork, samples, mock-ups or prototypes submitted by Sit Less to the Client.
The Client agrees that any artwork, sample, drawing, mock-up, prototype, quotation, sales confirmation, purchase order confirmation, sample approval form, prepared or submitted by Sit Less for or in relation to the Client must be treated by the Client with the strictest confidence and must not be disclosed to any third party.
18.1 Hereby indemnifies Sit Less (which indemnity continues even after these Terms terminate) against any loss Sit Less incurs at any time due to the Client having not done what it has agreed to do under these Terms.
18.2 Will, to the extent permitted by law, indemnify and keep indemnified the Sit Less against any claims for loss, damage, cost or expense whether direct, indirect or consequential (including for loss of profits, business or anticipated savings) brought, made or threatened against Sit Less by any third party arising directly or indirectly out of or in respect of the use, custody, purchase or supply of the Goods.
19. APPLICABILITY OF THESE TERMS
19.1 Apply to all supplies of Goods and Services by Sit Less to the Client unless otherwise agreed in writing.
19.2 May not be amended unless agreed in writing by the parties.