3DG8 Pty Limited – Terms & Conditions of Trade
1.1 “Supplier” means 3DG8 Pty Limited, its successors and assigns, or any person acting on behalf of and with the authority of 3DG8 Pty Limited.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document, or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by the Supplier to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 Intellectual Property Rights means existing or future copyright or similar rights, rights in relation to inventions, patent rights, registered and unregistered trademarks or service marks, registered designs, confidential information, trade secrets, know-how, circuit layouts, and any other similar rights
1.5 “Price” means the Price payable for the Goods as agreed between the Supplier and the Customer in accordance with clause 4 below.
1.6 Software means any embedded software or application software required for the operation of the Goods.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the Supplier’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Supplier.
2.3 The Customer acknowledges and accepts that the Supplier at their discretion, reserves the right not to supply Goods if, for any reason (including but not limited to, where the Goods are not or cease to be available, account disputes or conditions placed on the Supplier by their suppliers. The Supplier shall not be liable to the Customer for any loss or damage the Customer suffers due to the Supplier exercising its rights under this clause.
2.4 The Customer acknowledges and accepts that the Supplier may require a minimum order value, and shall reserve the right to charge an additional delivery fee (in additional to any applicable delivery fee under clause 5.2) where the order value may be below the minimum required.
3. Change in Control
3.1 The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact email, phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At the Supplier’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Supplier to the Customer; or
(b) the Price as at the date of delivery of the Goods according to the Supplier’s current price list; or
(c) the Supplier’s quoted price (subject to clause 4.2) will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 The Supplier reserves the right to change the Price if a variation to the Supplier’s quotation is requested. Any variation from the plan of scheduled Goods including, but not limited to, for overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges, additional Services required due to unidentifiable difficulties, or as a result of increases to the Supplier in the cost of Goods and labour beyond the Supplier’s control.
4.3 At the Supplier’s sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of installments/progress payments in accordance with the Supplier’s payment schedule;
(d) thirty (30) days following the end of the month in which an invoice or statement is posted to the Customer’s address or address for notices;
(e) thirty (30) days following the date of the invoice/statement;
(f) the date specified on any invoice, statement, or other forms as being the date for payment;
(g) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice or statement given to the Customer by the Supplier.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/online banking, credit card (plus a surcharge for any applicable merchant or payment gateway fees. But not exceeding (3.0%) of the Price, or by any other method as agreed to between the Customer and the Supplier.
4.6 Unless otherwise stated the Price does not include Goods & Services Tax or any other Consumption Tax (GST). In addition to the Price, the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at the Supplier’s address;
(b) the Supplier (or the Supplier’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
5.2 At the Supplier’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
5.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 The Supplier may deliver the Goods in separate installments. Each separate installment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 Any time or date given by the Supplier to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive either payment or if agreed by the Supplier all insurance proceeds payable for the Goods. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
6.3 If the Customer requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
7.1 The Supplier and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Supplier all amounts owing to the Supplier;
(b) the Customer has met all of its other obligations to the Supplier.
7.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honored, cleared, or recognized.
7.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 7.1 that the Customer is only a bailee of the Goods and must return the Goods to the Supplier on request. The Supplier reserves the right to register goods under the Personal Property Securities Register (PPSR) any similar register within the relevant jurisdiction;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged, or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes, or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;
(d) the Customer should not change or alter the Goods or intermix them with other goods, but if the Customer does so then the Customer can no longer rely on warranties provided by the Supplier;
(e) the Customer irrevocably authorizes the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods;
(f) the Supplier may recover possession of any Goods in transit whether or not delivery has occurred;
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier;
(h) the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
8. Personal Property Securities Act 2009 (“PPSA”)
8.1 In this clause financing statement, financing change statement, security agreement, and security interest have the meaning given to it by the PPSA.
8.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by the Supplier to the Customer.
8.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate, and up-to-date in all respects) which the Supplier may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA;
(iii) correct a defect in a statement referred to in clause 8.3(a)(i) or 8.3(a)(ii);
(b) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favor of a third party without the prior written consent of the Supplier;
(d) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
8.4 The Supplier and the Customer agree that sections 96, 115, and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d), and 132(4) of the PPSA.
8.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by the Supplier, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Customer must unconditionally ratify any actions taken by the Supplier under clauses 8.3 to 8.5.
8.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
9. Security and Charge
9.1 In consideration of the Supplier agreeing to supply the Goods, the Customer charges all of its rights, title, and interest (whether joint or several) in any land, realty, or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
9.2 The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
9.3 The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Customer’s behalf.
10. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
10.1 The Customer must inspect the Goods on delivery and shall within twenty-four (24) hours of delivery of the Goods notify the Supplier in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Customer must allow the Supplier to inspect the Goods.
10.2 Under applicable State, Territory, and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
10.3 The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
10.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Supplier makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5 If the Customer is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2.
10.6 If the Supplier is required to replace the Goods under this clause or the CCA, but is unable to do so, the Supplier may refund any money the Customer has paid for the Goods.
10.7 If the Customer is not a consumer within the meaning of the CCA, the Supplier’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by the Supplier at the Supplier’s sole discretion;
(b) limited to any warranty to which the Supplier is entitled if the Supplier did not manufacture the Goods;
(c) otherwise negated absolutely.
10.8 Subject to this clause 10, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 10.1;
(b) the Supplier has agreed that the Goods are defective;
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant);
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
10.9 Notwithstanding clauses 10.1 to 10.8 the warranties contained in the Contract are the Customers’ sole and exclusive warranties. The Supplier makes no other warranties of any kind whatsoever, express, implied, oral, written, or otherwise, including without limitation, or fitness for purpose or warranties arising by custom, trade usage, promise, example, or description, all of which warranties are expressly excluded by the Parties.
10.10 The Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by the Supplier;
(e) fair wear and tear, any accident, or act of God.
10.11 The Supplier may in its absolute discretion accept non-defective Goods for return in which case the Supplier may require the Customer to pay handling fees of up to thirty percent (30%) of the value of the returned Goods plus any freight costs.
10.12 Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return then the Supplier will only accept a return on the conditions imposed by that law.
11. Intellectual Property
11.1 Where the Supplier has designed, drawn, or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Supplier.
11.2 The Customer warrants that all designs, specifications, or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design, or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
11.3 The Customer agrees that the Supplier may (at no cost) any documents, designs, drawings, or Goods that the Supplier has created for the Customer.
11.4 The Goods contain software embedded within it and/or application software, the intellectual property in which is owned by or licensed to the Supplier or the Supplier has rights to use the software, which is required for the correct operation of the Goods (the “Software”).
11.5 Where the Supplier owns or is licensed to use the Software the Supplier, the Customer is hereby granted a non-exclusive license to use the Software solely in connection with the operation of the Goods. The rights granted herein are limited to a right to use and do not include any ownership interest in the Software or in any patents, copyrights, or other intellectual property of the Supplier.
11.6 The Customer may not copy or reproduce the Software, decompile or reverse-engineer it, load it on any computer or other equipment, incorporate any portion of it into any other software, modify or adapt it, or create any derivative work based on the Software.
11.7 The Software contains valuable proprietary information of the Supplier.
11.8 The Customer shall hold the Software in strict confidence and not disclose it to any third party, nor remove any trademarks or proprietary markings from the Software or its output.
11.9 The Software may be critical to the safe operation of the Goods. If the Customer modifies or permits the modification of the Software by any person other than the Supplier or its authorized agents, then:
(a) the Customer’s liability for a Defect pursuant to the Contract shall be excluded to the extent that such Defect is caused or contributed to by the modification;
(b) the Customer shall indemnify and defend the Supplier against any claims for personal injury or property damage relating to use of the Goods following modification except to the extent that the Customer demonstrates that such personal injury or property damage would have arisen notwithstanding the modification to the Software.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate that references unsecured business lending or overdraft rates as advertised on any of the major four (4) banks in Australia websites. In addition, a Customer interest rate margin may also be applied to the quoted rates (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonor fees).
12.3 Without prejudice to any other remedies the Supplier may have if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Goods to the Customer. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
12.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer 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;
(c) a receiver, manager, liquidator (provisional or otherwise), or similar person is appointed in respect of the Customer or any asset of the Customer.
13. Compliance Laws
13.1 The Supplier warrants that Goods sold under applicable State, Territory, and Commonwealth Law (including, without limitation the CCA) and any relevant Confidentiality, Intellectual Property, or Privacy Laws. In any other case subject to any mandated law having precedence, the Suppliers liability shall be limited to the Price.
14.1 The Supplier may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered. On giving such notice the Supplier shall repay to the Customer any money paid by the Customer for the Goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
14.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
15. Privacy Act 1988
15.1 The Customer agrees for the Supplier to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Supplier.
15.2 The Customer agrees that the Supplier may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer;
(b) to notify other credit providers of a default by the Customer;
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers;
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.
15.3 The Customer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit.
15.4 The Customer agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods;
(b) analyzing, verifying, and/or checking the Customer’s credit, payment, and/or status in relation to the provision of Goods;
(c) processing of any payment instructions, direct debit facilities, and/or credit facilities requested by the Customer;
(d) enabling the collection of amounts outstanding in relation to the Goods.
15.5 The Supplier may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
15.6 The information given to the CRB may include:
(a) personal information as outlined in 15.1 above;
(b) name of the credit provider and that the Supplier is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments, or outstanding monies which are overdue by more than sixty (60) days and for which written notice for a request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and the Supplier has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of the Supplier, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
15.7 The Customer shall have the right to request (by email) from the Supplier:
(a) a copy of the information about the Customer retained by the Supplier and the right to request that the Supplier correct any incorrect information;
(b) that the Supplier does not disclose any personal information about the Customer for the purpose of direct marketing.
15.8 The Supplier will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfill the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
15.9 The Customer can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
16.1 The failure by the Supplier to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision. 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 the state of New South Wales, Australia which the Supplier has its principal place of business, and are subject to the jurisdiction of the courts in that state.
16.3 Subject to clause 10 the Supplier shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
16.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
16.5 The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
16.6 The Customer agrees that the Supplier may amend these terms and conditions at any time. If the Supplier makes a change to these terms and conditions, then that change will take effect from the date on which the Supplier notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Supplier to provide Goods to the Customer.
16.7 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 events beyond the reasonable control of either party.
16.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorizations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.
Last update 3 August 2021