Conditions of Sale

Enclosure Solutions (ABN 15 924 167 896) Trading Conditions

1 We, and similar expressions, refer to Peekn Services ("Peekn Services" being retired as a trading name) / Enclosure Solutions (ABN 15 924 167 896). You, and similar expressions, refer to the entity placing an order with us.

2 Our conditions always apply. These trading conditions apply if we accept any order from you (whether for cash, or on credit). An accepted order is non-cancellable, subject to condition 13.

3 Not obliged to accept orders. We are not obliged to accept any orders from you. No tender or quotation by us obliges us to accept any order from you. If you do place an order with us, then these trading conditions become binding on you and us from the moment that we accept the order, even if we do not tell you that it has been accepted.

4 Our conditions overrule any other form. These trading conditions prevail even if they are inconsistent with anything in any earlier or later order form or similar document provided by you.

5 Time for payment. Payment for any goods supplied is due prior to items being despactched on delivery or, if credit terms are offered, by twenty fith (25th) day after the date of the relevant invoice for the supply of Goods.

6 Withdrawal of future credit. You have no entitlement to credit unless in our sole discretion we extend credit to you. If in a particular case we give you credit we still reserve the right at any time and for any reason in our sole discretion to refuse to supply any goods or services to you and to refuse to supply any goods to you on credit terms. If we do decline to give you further credit then that decision does not affect the credit terms which apply to any amounts you then owe to us. Except as otherwise agreed our credit terms are as specified above.

7 Defaults. If any amount you owe to us is not paid within 7 days of the due date then all of the monies that you owe us on any account become immediately due and payable. In that case, and also if at any time you default under any other agreement that we have with you, without limiting our other rights we may suspend the supply of any goods and defer or cancel any outstanding orders. Also, you must pay us interest on such overdue amounts, calculated on daily balances commencing from the due date for payment, at the current GIC daily rate. If any payment is overdue or any cheque is dishonoured or has to be re-presented, you must also pay or reimburse us for any reasonable costs or expenses we incur as a consequence or in seeking to recover payment. Recoverable costs and expenses include but are not limited to – dishonour fees; re-presentation fees; fees and commission charged by debt recovery agents; and legal fees.

8 Prices and price variations. We may increase any agreed sale price after we accept an order, to cover the full amount of any increases in GST or other taxes and duties such as customs duty, sales taxes, consumption taxes and stamp duty which we incur in connection with a transaction after the date of your order. We are entitled to invoice you for a service fee at our ruling rates for any order where the total amount to be invoiced for the order net of GST is less than $150.

9 Exchange rate variations. We may adjust our quoted prices to reflect any increase in cost to us as a result of a variation in exchange rates. Such adjustments will be determined by reference to any change in Westpac’s Spot Rate between the date of our quotation and the date of delivery of the goods.

10 Delivery. Except as stated otherwise, prices include our standard packaging + delivery up to you at our premises. We are entitled to invoice you for alternative packaging or delivery arrangements. If we agree to arrange delivery elsewhere we will deliver any goods ordered by you at your cost. We may dispatch an order in one or more instalments. In that case you must pay separately for each instalment and each instalment becomes a separate contract. Non-delivery of one instalment does not affect the contracts for the other instalments that are delivered or are to be delivered. If part of an order of any goods is not collected or accepted by you for any reason we may place such goods or services in storage, including at or on our premises. You must pay us for all expenses incurred in relation to storing any goods not collected or accepted and in any case not less than the commercial value of the storage space occupied by the goods. You take all of the risk associated with the goods in all respects from the time of delivery or, if we store goods that are ready for delivery then from the time that we notify you that the goods are held in storage.

10a Shipping & delivery Insurance. Insurance covering damage or loss in transit is available on request and subject to the shipper / courier's conditions.

11 Our warranty. We must repair or at our option, make a replacement available to you for any goods supplied by us if there is any material manufacturing defect in materials or workmanship provided you give notice to us in writing within 12 months after supply by us of the relevant product, and within 14 days of becoming aware of a possible breach of warranty. The notice must state the warranty under which you are claiming and set out the facts that you consider have led to a breach of the warranty. You must bear the costs of making the claim. Our obligations under this warranty are limited to repair or the provision of a replacement and that is your sole remedy. Any costs incurred by you in substituting the defective product (including investigation and location of the defective product and costs of any kind incurred in carrying out the substitution), are to be borne by you. 

Statutory notice: consumer transactions. The following only applies if you are a deemed "consumer" under the Australian Consumer Law and may not apply in your particular case. In telling you the following, we do not vary or extend the remedies otherwise available to you.

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

The name, business address, telephone number and email address of the person giving this warranty are: Various suppliers via Enclosure Solutions acting as a reseller, 2 Short St, Heathcote, N.S.W. 2233, 0448 085 061 and accounts@peeknservices.com.au.

12 Shortages and pre-delivery damage. We will not recognise any claim for a shortage in a delivery or for any item being delivered in a damaged state if the claim is not made within 7 days of delivery. When you sign any delivery or consignment note or similar document on receipt of a delivery, that is conclusive evidence that you received the delivery without any shortage or damage that would have been visible on taking delivery without unpacking the goods. You carry all risk of goods in transit where you arrange for carriage.

13 Limits on cancellation. To the extent permitted by law, you do not have the right to cancel an order or to return any goods for credit. However, we may on your request agree to you cancelling an order for, or the return of, stock goods (meaning goods which are not produced to order). If we do agree to you cancelling an order for, or returning, stock goods you must pay a cancellation / re-stocking fee of 20% of the amount invoiced or that would be invoiced. We will only give you credit for goods that are returned in original condition, packaging and configuration. We will not accept cancellation of orders for, or return of, non-stock goods (meaning goods which are produced to order, or indent goods).

14 Full liability for injury and death. We do not seek to exclude our legal liability (if any) for any death or personal injury which is caused by our negligence. However, even where we are liable for death or personal injury we are not liable for any associated Consequential Loss (as defined in condition 22). Also, we are not liable to the extent that something was caused or contributed to by your negligent act, omission or other default or by the negligent act, omission or other default of your contractors or agents or of any third party.

15 Sale by specification. We offer our products by specification. You decide what purpose to use them or resupply them for and you alone are responsible for determining your technical requirements. Also you alone are responsible for determining whether any product we supply is fit and suitable for your purpose although this does not limit any applicable consumer guarantee (if any, and subject to our other conditions). Any performance figures we provide are approximations and only for general guidance: a particular performance figure, even after allowing an approximation tolerance, may not be obtainable continuously or in all circumstances. Dimensions and specifications are all subject to tolerances and are also subject to variations between similar items. We are not supplying any service or advice of any nature. The provisions of this condition 15 apply despite any comment or representation made or implied by us. You acknowledge that you do not rely on any advice from or representation by us, any of our agents or a third party unless made in writing and signed by one of our directors.

16 Unexpected delay. This condition applies if something happens which is beyond our reasonable control that makes it impossible, more difficult or more expensive for us to perform our obligations in our usual way. In those cases we may wait until it is again possible for us to perform our obligations in our usual way without additional difficulty or expense, and we are not liable for any delay which results. Without limiting the foregoing general words, this condition applies where we have problems performing our obligations due to accidents, strikes, transport difficulties or stock shortages.

17 Estimated delivery times. Delivery times are estimates only and we are not liable for delays in delivery.

18 No other representations. We rely on the following warranties from you as essential conditions. You have not relied on any representation made or implied by us or arising out of or implied by our conduct, nor upon any description, illustration or specification contained in any document produced by us, including any catalogue or publicity material, unless made in writing for the purposes of this transaction and signed by one of our directors. Nor have you relied on our skill and judgment in deciding whether, or what kind of goods, to purchase from us. To the extent that we have made or implied, or by conduct given rise to or implied, any representation that is not expressly stated in these conditions, you are not proceeding in reliance on the representation because you have had and taken the opportunity to independently check and form your own view about the significance, and the accuracy or otherwise, of the representation. Without limitation, you acknowledge that you are not relying on being able to make any claim against us, for any representation made or conduct occurring before, under or in connection with any order, beyond the claims that can be made, and the limits applying, as provided in these trading conditions.

19 Manufacturer. We will use our reasonable endeavours to obtain for you the benefit of any warranty from the manufacturer of any goods that we supply to you. This provision does not require us to commence legal proceedings or incur legal costs. We make certain endeavours to ensure that goods supplied by us are sourced from reputable and qualified manufacturers, based on appropriate product model or type certifications, by making preliminary enquiries about suppliers and by making preliminary checks or certifications. It is not practicable for us to test individual items for compliance or defects prior to supply.

20 Exclusion of implied conditions. All conditions, terms and warranties that are or might otherwise be implied by law, practice, trade usage or international convention, are excluded to the fullest extent permitted by law.

21 Australian Consumer Law. Parts of the Australian Consumer Law, Competition and Consumer Act 2010 (Cth), and other statutes in some cases either cannot be excluded, restricted or modified; or can only be restricted or modified to a limited extent. If any provisions of those types do apply, then to the extent permitted by law our liability under those provisions is limited as follows: Our liability is limited at our option – in the case of goods, to replacement of the goods or the supply of equivalent goods; or repair of the goods; or payment of the cost of replacing the goods or of acquiring equivalent goods; or payment of the cost of having the goods repaired; and in the case of services, to supplying the services again or the payment of the cost of having the services supplied again.

22 Limitation of liability. Except as stated above, we are not liable for, and you do not rely on being able to claim against us for, any loss or damage or Consequential Loss (whether in contract or for negligence or any other tort or for breach of statutory, fiduciary or other duty or on any other legal or equitable basis) in relation to the supply or nonsupply of the goods or services to you or any order to supply goods or services or in relation to any representation or conduct before, under or in respect of any order, and whether or not the possibility or potential extent of the Consequential Loss was known or foreseeable and whether or not the act or conduct was authorised or required. Otherwise, our aggregate liability to you in respect of any losses that are not excluded in this condition 22 is limited to the price paid by you to us in respect of the goods giving rise to such liability. Consequential Loss in these trading conditions means any loss of use, lost production, lost income or profits, loss of opportunity, lost savings, increased or wasted expenses, delay or lost time, loss of or damage to goodwill, increased operating costs, wasted or increased financing costs, loss of or damage to data or records, loss of or unavailability of or damage to tangible or intangible property, claims made against you by others, losses or costs or expenses associated with identification, investigation, assessment, repair, replacement or servicing of any defective goods and any other economic loss or damage and any special, indirect or consequential loss or damage.

23 Software licences. We supply any firmware or software which comes with goods or services under licence only. That licence, unless otherwise stated or necessarily implied, is non-exclusive but perpetual and only allows use of the particular firmware and software with the goods or services with which it is supplied.

24 Variations in specifications. We reserve the right to vary the specifications or performance criteria of any product from time to time and to obtain products from different sources, at our absolute discretion. We may do that without telling you provided we have reasonable grounds for believing that the alternative product offered is substantially similar to that previously offered or represents an improvement.

25 Certificates. You are bound by any certificate signed by any of our directors or solicitors which shows any relevant date for the purposes of any calculation, or any amount or calculation relevant to what you owe us. The only exception is where you can prove the certificate is wrong.

26 Availability of spare parts. We make every reasonable effort to ensure the reasonable availability of spare parts for any particular product type for at least 1 year from the first time it is or was supplied to a customer when it was new. In either case, we are not liable if, having used reasonable efforts, we are unable to do so for a temporary or permanent period. We may not be able to arrange for the availability of spare parts after the end of that 1 year period. Where spare parts are available, our ruling rates at the time will apply.

27 Personal information and privacy arrangements. We may collect personal information in connection with our dealings with you. If so, we will abide by our privacy policy, a copy of which is available on request.

28 Application of receipts. We may apply any payment we receive from you or on your behalf, to and between any debt you owe to us or any account you have with us.

29 Governing Law. Our agreement with you is governed by and is to be interpreted according to the laws in force in NSW and you submit to the non-exclusive jurisdiction of the courts operating in NSW.

30 Security interests and ownership passing on payment.

The following provisions apply to secure the payment, on the due date or dates for payment, of amounts that you owe to us and to secure your further obligations. These provisions are essential conditions. If you breach any of these provisions then at our election all amounts that you owe to us become payable in full and immediately. Until you have paid the full price (including any associated charges), for all goods we have supplied (Goods), we remain the owner of the Goods. Until you become the owner of any Goods, we may enter into any premises or vehicle if we have reasonable grounds to expect that we may find any part of the Goods there. If you default in paying any part of the price or fee, or associated charges, in connection with an order or if you breach any of these conditions then we may re-take possession of all Goods. That applies even if we hold some negotiable instrument or security for the amount unpaid. Until you become the owner of particular Goods, you must store those Goods separately from all other goods and in such a way as to allow the particular Goods to be identified and to allow them to be identified as ours and keep them fully insured against all usual risks of damage or loss at your expense. You must not do anything that makes any of the Goods a fixture to any land. These provisions apply whether or not we have agreed to extend you credit in relation to the supply of the Goods. From the commencement of the Personal Properties Securities Act 2009 (the PPSA), the following further provisions apply, including in connection with any transaction that occurred prior to that time, to the extent if any that our interests are regulated security interests. Terms used here that are defined in the PPSA have the same meaning as in the PPSA where the context permits. You acknowledge and agree that in each case we have a purchase money security interest attaching to the particular Goods covered by an order to secure the payment by you to us of the purchase price and any applicable credit charges and interest payable. By taking delivery of Goods from us, you agree that a security agreement covers the Goods as set out in these provisions.

You must, if requested by us, effect (including by registration) a continuing security interest in our favour in any Goods that you dispose of on credit terms, to better protect our security interests. For these purposes, "registration" includes responding to any amendment demand and preparing and filing any financing change statement. You also acknowledge and agree that even if separately described, calculated or specified, any amount (each, a purchase price component) due to us in connection with the supply of the Goods is part of the purchase price for these purposes. That includes but is not limited to amounts that may be otherwise described, calculated or specified as storage fees, packaging or delivery charges and costs associated with delivery, and installation charges. You acknowledge that any purchase price component is only separately described, calculated or specified as a convenient way of determining the full purchase price. You agree that we may apply any payment from you or on your behalf, as we choose in our own interest. That applies irrespective of whether you, or the person making the payment, directs how the payment is to be applied. Without limiting those general words, we may apply a particular payment to or towards a payment or obligation that you owe to us that is not secured by any security interest or to or towards payment for a particular item or particular items rather than to another item or other items. We may do anything we choose to perfect any of our security interests. You must act immediately when requested by us to do such acts and provide such information as we reasonably consider necessary or desirable to enable us to perfect any security interest created or provided by these provisions in the Goods, or any proceeds, with first priority.

The following provisions of the PPSA do not apply – section 95 (notice of removal of accession, to the extent that it otherwise requires us to give a notice to you), section 130 (notice of disposal, to the extent that it otherwise requires us to give a notice to you), section 132(3)(d) (statement of account), section 132(4) (statement of account if no disposal), section 135(1)(a) (notice of retention, to the extent that it otherwise requires us to give notice to you), and section 143 (reinstatement). You waive your right under section 157 PPSA to receive a notice in relation to any registration event in connection with any collateral that is commercial property. We reserve all our rights and powers in relation to any security interest that are in addition to any right or power conferred under the PPSA. We may choose between our various rights and powers, including for enforcement of any security interest, as we see fit and without limiting our other rights and powers. You warrant to us as an essential condition that you are not acquiring the Goods for use (nor will you use them), predominantly for any personal, domestic or household purpose. You acknowledge that accordingly all of the collateral under each security interest, is commercial property. The collateral to which the security interests attach in each case is respectively each of the items comprising the Goods, as stipulated above and which as the case requires are items belonging to the "other goods" class of collateral or otherwise to the corresponding class or classes of collateral we identify. The collateral to which the security interests attach in each case includes but is not limited to any particular such item of the Goods that is or may be held by you as inventory; and also includes any proceeds of that collateral which proceeds you agree may be described in any relevant financing statement as "all present and after-acquired property" 

31 Notices. All notices you and we give each other must be in writing and signed. Notices must be given at the address shown on the proposal form or a changed address of which due notice has been given.

32 Trade Marks and IP Rights. You may refer to goods acquired from us by their associated names, including associated trade marks and logos, provided that such reference is not misleading nor prejudicial in any way to us or our intellectual property rights. You may not remove or alter any serial numbers, trade marks or other markings or get-up, nor may you co-brand or co-logo any goods provided by us. You do not acquire any right to any of our intellectual property. You must not incorporate any of our trade marks into your trade marks, company names, Internet addresses, domain names, or any other designations.

33 Publicity. We may use your name, for the sole purpose of identifying you as our customer, in promotional materials, including press releases, presentations and customer references regarding the sale of any goods. You give us that permission free of charge for worldwide use in any medium. However, we will obtain your prior approval for publicity that contains quotes or endorsements attributed to you.

34 Assignment and Subcontractors. We may, and you must not, assign any part or the whole of any right or benefit of any contract we have with you. We may choose to use one or more subcontractors to fulfil our obligations under any contract we have with you.

35 IP Infringement. If there is any allegation or apprehension that any goods we have supplied to you infringe the rights of others, you agree to notify us and give us a reasonable period of time to modify, alter or substitute the alleged infringing item or items, before taking further action. This provision is in addition to our other rights