CONDITIONS OF SALE
1. Definition and Interpretation
In these Conditions any capitalised terms used that are defined in the Customer Order have the same meaning as in the Customer Order (unless specified otherwise in these Conditions).
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time.
Agent means an entity described as such in the Customer Order.
Agent Finance means a credit facility provided directly by the Agent, or facilitated by the Agent and provided by a third party, for the Customer to purchase Products.
Agreement means a contract between BSH and the Customer for the sale and purchase of the Products on terms and conditions set out in these Conditions, in the Quotation, Customer Order and Sales Invoice.
BSH means BSH Home Appliances Pty Ltd (ACN 109 198 405).
BSH Home Appliances Group means BSH Hausgeräte GmbH and its Related Bodies Corporate and Subsidiaries.
BSH Manufacturer's Warranty means the warranties provided for Products by BSH as specified in the warranty card applicable to, or accompanying, the Products and does not refer to any of the Consumer Guarantees.
Business Hours means 8am to 5pm on a weekday, excluding public holidays, in the State or Territory in which the Product is being delivered.
Conditions means these Conditions of Sale.
Consumer Guarantees means the consumer guarantees set out in Division 1 of Part 3-2 of the Australian Consumer Law.
Consumer Right means a right that a Customer has under the Australian Consumer Law or under the BSH Manufacturer's Warranty, in relation to the Product.
Customer means the purchaser of the Products who is named on the Customer Order.
Customer Order means the form that sets out the details of the Products ordered by, or on behalf of, the Customer that have been confirmed by the Customer, price of the Products, Delivery Address and other information.
Delivery Area means the metropolitan area of capital cities in Australian States and Territories and certain regional areas of Australian States and Territories as determined by BSH.
Delivery Address means the delivery address specified in the Customer Order.
Delivery Date has the meaning given in clause 6(a).
Display Products means appliances provided by BSH to the Agent on a consignment basis only.
Non-standard Delivery means a delivery of the Products that requires two or more people to make the delivery, split deliveries (at the Customer’s election), deliveries that require cranes or other specialised lifting or moving equipment, deliveries that include difficult access points or staircases (e.g. remote sites or outhouses, narrow, spiral, bends or a number of flights due to no elevator being in place or available), deliveries outside Business Hours or the Delivery Area or deliveries that require a second site visit to the Delivery Address for any reason not caused by BSH.
Order means a Customer Order that has been accepted by BSH.
Payment has the meaning given in clause 5(b).
Price has the meaning given in clause 3(a).
Products means the products described in the Customer Order, as amended in accordance with these Conditions.
PPSA means the Personal Property Securities Act 2009 (Cth).
Quotation means the form, tender or quotation issued by BSH to the Customer regarding the Products (if any).
Related Bodies Corporate and Subsidiaries have the same meaning as in the Corporations Act 2001 (Cth).
Sales Invoice means a tax invoice issued by BSH to the Customer after BSH processes payment of the Price for the Products as proof of purchase of the Products.
Security Deposit means the deposit required to be paid by a Prospective Customer ordering the Products or Display Products (as the case may be) being:
• (a) in the case of all Products to be sold other than Display Products, 30% of the total Price of the Products ordered or such other amount as required by BSH (e.g. some specialised or internationally manufactured Products may attract a higher security deposit); and
• (b) in the case of Display Products, 100% of the total Price of the Display Products ordered.
Standard Delivery means any delivery other than a Non-standard Delivery.
2. Application of Conditions
(a) The Agreement is formed between BSH and the Customer for the purchase of Products if and when BSH accepts the Customer Order in writing or when BSH processes payment of the Price for the Products and issues a Sales Invoice to the Customer in respect of that Customer Order.
(b) The Agreement can only be amended, altered or waived by prior written agreement between BSH and the Customer.
(c) Without limiting BSH's liability under the Australian Consumer Law, the Customer acknowledges that no employee or agent of BSH has any right to make any representation, warranty or promise in relation to the Products or the sale of the Products other than as contained in the Agreement or the applicable BSH’s Manufacturer’s Warranty.
(a) The total price payable by the Customer will be the amount(s) specified in the Customer Order, payable in AU$, includes GST plus any other amounts due to BSH under these Conditions (including any late payment charges, storage charges and additional delivery charges) (Price).
(b) Unless otherwise stated by BSH in writing, the Price quoted in a Quotation or Customer Order or set out in a Sales Invoice excludes, where applicable, charges payable to BSH under these Conditions (including for re-delivery or a Non-standard Delivery) or costs incurred by the Customer in relation to the Product such as installation.
(a) A Quotation is valid for the period stated in the Quotation, unless it has been withdrawn by BSH.
(b) A Quotation is not an obligation to sell, but is merely an invitation to treat. No contractual relationship arises from a Quotation.
(c) Any special conditions specified in a Quotation, Customer Order or Sales Invoice will take precedence over these Conditions to the extent that they are inconsistent with these Conditions.
(a) If the Customer wishes to purchase the Products, they must pay:
• (1) the Security Deposit to BSH within five business days of the date that the Products or Display Products were ordered; and
• (2) the balance of the Price within the timeframe specified in clause 5(g) i.e. within 90 days of payment of the Security Deposit.
(b) The Customer authorises BSH to charge the Customer's credit card the Price and any other charges (Payment).
(c) For all Customer Orders, full Payment is required before BSH will deliver the Products.
(d) BSH accepts Payment by Visa, Mastercard, Amex, EFT, cheque and Agent Finance and any other payment method accepted by BSH from time to time. Any payments made by credit card may incur a surcharge.
(e) Where Payment is made by Agent Finance, the Customer consents to the Agent providing BSH with a copy of finance approval provided by the Agent, or to the Agent from the third party finance provider. The Customer acknowledges and agrees that BSH takes no responsibility for the Agent Finance arrangements, that the Agent is not acting as BSH's agent in arranging the Agent Finance and that BSH is in no way associated or affiliated with any third party finance provider.
(f) Customers are required to retain proof of purchase and payment to facilitate transactions, claims and after sales support.
(g) If BSH is unable to process the Payment using the credit card information provided by the Customer or Payment is not made for any other reason, BSH will notify the Customer and the Customer must pay the full Price for Product within 30 days. The Price for the Products is fixed provided that the balance of the Price is paid within 90 days of payment of the Security Deposit.
(h) Time for payment of the full Price is of the essence. If the Customer fails to pay the Security Deposit and/or balance of the Price within the time period specified in these Conditions, BSH may, without prejudice to BSH’s other rights:
• (1) terminate the Agreement with immediate effect, refund the Security Deposit (and any other moneys paid towards the Price by the Customer) with deduction for the cancellation fee specified in clause 8(a) and any additional costs incurred by BSH arising from the Customer's failure to pay, and release the Products for re-sale ;
• (2) extend the date for payment for a period agreed to by BSH in writing if the Customer agrees to pay storage fees for the Products AU$20.00 per appliance per month from the date the Payment was due until the date the Payment is made; or
• (3) charge interest, calculated daily, on the outstanding amount at a rate of 2% per annum plus the rate for the time being fixed by section 2 of the Penalty Interest Rates Act 1983 (Vic) from the date Payment was due under clause 5(g).
(i) In consideration for the payment of the Price for the Products, BSH agrees to use its best endeavours to supply the Products. To the extent permitted by the Australian Consumer Law, BSH does not guarantee availability of the Products.
(j) If a Customer has a claim against BSH in relation to an Order, the Customer cannot withhold payment of the whole or part of the Price payable in respect of any other Order.
(a) On acceptance of a Customer Order, BSH will notify the Customer of an estimated date of delivery and of any variations from that date (Delivery Date).
(b) The Customer must accept delivery on the Delivery Date during Business Hours or on any other date or times agreed by the parties in writing.
(c) If a Customer has made Payment for the Products but delays delivery of the Products for any reason for a period of more than 120 days following the date of Payment (Final Delivery Date), BSH may:
• (1) deliver the Products at its absolute discretion to the Delivery Address and charge the Customer storage fees of AU$20.00 per appliance per month from the Final Delivery Date to the date of actual delivery and any other costs incurred by BSH arising from the delayed delivery; or
• (2) terminate the Agreement with immediate effect and charge the applicable cancellation fee specified in clause 8(a).
(d) Any Delivery Date confirmed by BSH is an estimate only. If BSH is unable to deliver the Products on the Delivery Date BSH will use its best endeavours to do so within a reasonable time after the Delivery Date.
(e) To the extent permitted by the Australian Consumer Law, BSH will not be liable for any loss suffered by the Customer arising out of any delay or failure to deliver the Products (or any part of them) on the Delivery Date.
(f) BSH will not deliver part of an Order.
(g) BSH will deliver the Products to the Delivery Address provided at all times that the Delivery Address is within the Delivery Area.
(h) Delivery will be deemed to be made when the Products are delivered to the Delivery Address.
(i) If the Products are superseded, discontinued and not available for delivery on the Delivery Date, BSH may, by providing notice to the Customer prior to the Delivery Date:
• (1) offer the Customer a model of equivalent or superior standard, and specify any additional amount to be added to the Price for the model change; or
• (2) if no equivalent model is available, may terminate the Agreement with immediate effect and refund to the Customer all money paid towards the Price of the Product.
(j) If the Customer accepts BSH’s offer of the alternative model pursuant to clause 6(i)(1) the Price will be varied accordingly. If the Customer reject’s BSH’s offer then the Agreement is terminated immediately and all money paid by the Customer towards the Price of the Product will be refunded.
(k) Unless otherwise expressly agreed by BSH in writing a delivery will be presumed to be a Standard Delivery. If the Customer requires a Non-standard Delivery, they are required to notify BSH as soon as possible prior to BSH’s dispatch of the Products. Fees and charges will be applicable for Non-standard Deliveries, details of which can be obtained prior to purchasing the Products (Note, at times only an estimate may be able to be provided prior to purchase) and will be provided by BSH and agreed with the Customer prior to dispatch of the Products.
(l) The Customer is required to have someone over the age of 18 available to sign for the Products and they must be able provide identification if requested to do so.
(m) Prior to delivery of the Products the Customer must prepare for delivery by ensuring that there is clear access for the delivery vehicles, ensuring that there is clear access for the Products and any trolleys, covering floors that the Customer does not wish to get wet, soiled, scratched by boxes and/or trolley wheels, checking the width of doorways and walkways etc. To the extent permitted by law, BSH will not be liable for any loss or damage suffered by the Customer arising out of any damage caused during delivery of the Products.
(n) Where the Customer is not present or ready to accept delivery of the Products at the nominated delivery time on the Delivery Date or the delivery is found to be a Non-standard Delivery or the delivery is redirected to another location after dispatch from the warehouse, BSH is entitled in its absolute discretion to: not deliver the Products and charge the Customer a fee to have the Products re-delivered at a new delivery time/date, as a Non-standard Delivery or delivered to an alternate location, as arranged by BSH and the Customer. Any fee payable by the Customer under this clause 6(n) must be paid by the Customer prior to BSH effecting delivery of the Products.
7. Obligation to Inspect
(a) The Customer must inspect all Products upon delivery.
(b) The Customer must notify BSH if the Products are not in accordance with the Quotation, Customer Order or Sales Invoice within 21 days of delivery. Failing such notice and to the extent permitted by law, the Products will be deemed to have been delivered and accepted by the Customer in acceptable condition and in accordance with the Agreement.
8. Cancellations, Returns and Exchange Requests
(a) If a Customer cancels the Order for the Product prior to delivery for a reason not related to their Consumer Rights (or for no reason), the Customer must pay a cancellation fee of $250.00. BSH will refund to the Customer the Price for the Product after deduction of the cancellation fee.
(b) Subject to BSH’s prior written approval, which it may provide or withhold at its absolute discretion, a Customer may return a Product for a reason not related to their Consumer Rights (or for no reason) within 21 days of the date of delivery of the Product provided that the Customer:
• (1) contacts BSH before taking any steps to return the Product;
• (2) allows BSH to collect the Product during Business hours at the Customer’s cost;
• (3) returns the Product in a sellable, unused condition which includes returning the Product with all items and manuals, and undamaged as determined by BSH acting reasonably;
• (4) pays a restocking fee of a minimum of 30% of the Price and in the case of additional or promotional items included at no additional cost to the Customer (e.g. during promotions) pays a restocking fee of a minimum of 30% of the full list price or RRP for the additional or promotional items as well to be confirmed by BSH following its assessment of the Product’s, additional or promotional item’s condition), in which case BSH will refund to the Customer the Price of the Product, the full list price or RRP of the additional or promotional items included after deduction for the restocking fees and any costs (including freight costs) incurred by BSH. Note, if after assessing the Product BSH determines that it is no re-sellable by BSH then the Customer will be afforded the opportunity to collect the Product as opposed to receiving no refund at all and BSH having to scrap the Product.
• (5) BSH may at its own discretion consider requests to exchange a Product. Any exchange will be subject to BSH’s prior written approval and the Customer paying the restocking fee (as outlined in clause 8(b)(4) above), transport costs and other charges specified by BSH prior to the exchange.
(c) If a Customer wishes to return a Product (or seek any other remedy) for a reason related to their Consumer Rights, the Customer must contact BSH before taking any steps in relation to the Product.
9. Title and Risk
(a) BSH will retain title and risk in the Products until the Products are delivered to the Delivery Address at which time title and risk passes to the Customer.
(b) BSH reserve the right to register any retention of title security interest in Products pursuant to the PPSA and the Customer agrees to provide all such assistance to BSH to enable BSH to make any such registrations.
(c) Where the Customer is in possession of Products that will be, or have been, replaced by BSH then the Customer must keep such Products in its possession, safe from damage and/or theft and must not dispose of or otherwise part with possession of such Products until collection by a BSH representative or agent.
10. Indemnity and Exclusion of Liability
(a) The Customer has certain rights and remedies under the Australian Consumer Law that cannot be excluded, restricted or modified by agreement (Non-Excludable Rights). Nothing in the Agreement operates to exclude, restrict or modify a Non-Excludable Right.
(b) Other than the Non-Excludable Rights, all other conditions, warranties, guarantees, rights, remedies, liabilities or other terms implied or conferred by statute, custom, or the general law that impose any liability, or obligation on, BSH are expressly excluded from the Agreement.
(c) To the extent permitted by the Australian Consumer Law, BSH will have no liability to the Customer for any:
• (1) special, indirect, consequential, exemplary or punitive loss or damage; and
• (2) economic loss, loss of contract, profit, revenue, opportunity, production, production stoppage, goodwill, reputation, overhead costs, anticipated savings or data.
11. BSH Manufacturer's Warranty
(a) To make a claim under the BSH Manufacturer's Warranty in relation to a Product, the Customer is required to provide proof of purchase.
(b) The Products are supplied subject to the relevant Product’s specifications as specified in the accompanying or applicable manuals and are covered by BSH’s Manufacturer’s Warranty, the details of which are specified in the accompanying or applicable warranty card.
(c) The BSH Manufacturer’s Warranty will only be provided to the Customer and not to any subsequent owners of the Products.
(d) Unless otherwise agreed by BSH in writing the BSH Manufacturer’s Warranty will commence seven days after the date of dispatch by BSH for delivery to the Delivery Address.
(e) Any Products subject to accident, misuse, abuse, negligence, defacement of serial plate or alteration will have their BSH Manufacturer’s Warranty voided. If installation and/or servicing of Products are not carried out in accordance with the accompanying or applicable manuals, BSH’s Manufacturer’s Warranty will also be voided.
(f) The BSH Manufacturer’s Warranty covers use of the product for domestic purposes only.
(g) BSH will not be liable for any fault or damage to the Products which has made it of unacceptable quality if it has been caused by the Customer or the Customer failed to take reasonable steps to prevent the product from becoming of unacceptable quality, or if the Products have been damaged by abnormal use.
(h) Any faulty or damaged returned Products must be complete and include any accessories provided with the Products.
(i) Where the Customer seeks inspection and/or servicing of Products where there is no legitimate claim under the BSH’s Manufacturer’s Warranty or a Consumer Guarantee then the Customer agrees to bear the costs of such servicing and/or inspection.
12. Customer Default
(a) If the Customer defaults by non-payment or non-performance of any obligation under this Agreement or if any proceedings under any bankruptcy, liquidation or insolvency laws are started by or against the Customer, BSH will have the right to exercise any one of the following remedies:
• (1) declare all unpaid amounts to be immediately due and payable;
• (2) require the Customer to make available the Products (including documentation) which have not been paid for and to make the same available at a time and place reasonably convenient to BSH so that they may be collected;
• (3) take possession without demand or notice (where the right to demand or notice is expressly waived by the Customer under this clause) of all the Products as yet unpaid for;
• (4) sell, lease or otherwise dispose of the Products publicly or privately;
• (5) terminate this Agreement in whole or in part; and/or
• (6) pursue any other remedies under the Agreement or existing at law or in equity.
(b) In addition to any other payment obligations under the Agreement, the Customer agrees to pay BSH all costs and expenses, including reasonable legal fees and costs incurred by BSH, in exercising any of BSH’s rights and remedies under clause 12(a) of the Agreement.
13. Governing Law
The Agreement is governed by the laws of the State of Victoria, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria.
14. Force Majeure
BSH will use its best endeavours to affect delivery on the Delivery Date but if BSH fails to do so by reason of:
(a) inability to obtain supplies of materials or parts from approved sources;
(b) any strike, shortage of labour or lockout;
(c) war, riots, accident, civil commotion, fire, act of God; or
(d) any other event whatsoever beyond the reasonable control of BSH,
BSH may, to the extent permitted under the Australian Consumer Law, cancel the Agreement or any unfulfilled part and refund any money paid towards the Price to the Customer, or extend the time for its performance or completion by the time lost because of the event preventing or delaying delivery.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy.
16. Entire Agreement
The Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
Part or all of any provision of these Terms that is illegal or unenforceable may be severed from these Terms and the remaining provisions will continue in force.
Any term that by its nature is intended to survive termination of the Agreement survives termination of the Agreement including clauses 5(h), 6(c), (i) and (g), clauses 12 to 17, this clause 18 and clause 19 of these Conditions.
(a) BSH, a subsidiary of BSH Hausgeräte GmbH, will use the Customer’s personal information for customer service and administration, including warranty claims and to contact the Customer, for product development, surveys and direct marketing. BSH may need to disclose the Customer’s personal information to its Related Bodies Corporate and to third parties outside the BSH Home Appliances Group for these and other business purposes, including for warranty registration and claims such as to agents, contractors and service providers (e.g. mailing houses). Some of them are located overseas. BSH will not otherwise disclose the Customer’s personal information unless the Customer has consented or BSH is otherwise required or authorised by or under an Australian law or a court/ tribunal order to do so.
(b) If the Customer does not provide BSH with all the personal information reasonably requested e.g. in the Warranty Card Registration, BSH may not be able to provide the Customer with customer and administration support or services, including in relation to any warranty claim the Customer may have.
(c) BSH may direct market to the Customer via email, SMS, mail or telephone. If the Customer does not wish to receive direct marketing communications from BSH in the future the Customer may opt-out at any time by (in the case of electronic communications) clicking the “unsubscribe” button, or contacting BSH at firstname.lastname@example.org , telephoning 03 8551 1100, or by writing to BSH at 1555 Centre Road, Clayton, Victoria, Australia 3168 to the attention of the Privacy Officer.
• (1) for Gaggenau, by going to www.gaggenau.com/au/ or by calling 1300 170 552; and
• (2) for NEFF, by going to www.neff.com.au or by calling 1300 087 033.
If the Customer wishes to access, correct or update their personal information please contact BSH at email@example.com or telephone 03 8551 1100.