1800 232 782 (1800 ADAPTA)
Level 7, 91 Phillip St, Parramatta, NSW. 2150 Australia
Please see our legal information below.
1.1 "Adapta" means Adapta Solution Pty Ltd (ABN 86 623 165 168 ), its successors and assigns or any persons acting on behalf of and with the authority of Adapta Solution.
1.2 "Customer" means the person/s ordering or 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 Adapta Solution Pty Ltd 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 "Price" means the Price payable for the Goods as agreed between Adapta Solution Pty Ltd and the Customer in accordance with clause 4 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound 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 Adapta Solution Pty Ltd' consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Adapta Solution Pty Ltd.
3. Change in Control
3.1 The Customer shall give Adapta Solution Pty Ltd 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 phone or fax numbers). The Customer shall be liable for any loss incurred by Adapta Solution Pty Ltd as a result of the Customer's failure to comply with this clause.
4. Price and Payment
4.1 At Adapta Solution Pty Ltd' sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Adapta Solution Pty Ltd to the Customer; or
(b) Adapta Solution Pty Ltd' quoted Price (subject to clause 4.2) which shall be valid for the period stated in the quotation or otherwise for a period of seven (7) days.
4.2 Adapta Solution Pty Ltd reserves the right to change the Price if a variation to Adapta Solution Pty Ltd' quotation is requested.
4.3 At Adapta Solution Pty Ltd' sole discretion a 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 dates determined by Adapta Solution Pty Ltd, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) thirty (30) days following the date of the invoice;
(d) the date specified only invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the data which is seven (7) days following the date of any invoice given to the Customer by Adapta Solution Pty Ltd.
4.5 Payment may be made by cash, bank cheque, electronic/online banking, credit card or by any other means as agreed to between the Customer and Adapta Solution Pty Ltd.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Adapta Solution Pty Ltd an amount equal to any GST on the Goods. The Customer must pay GST, without deduction or set off on 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. Collection of Goods
5.1 Collection ("Collection") of the Goods is taken to occur at the time that the Customer or the Customer's nominated carrier collects the Goods.
5.3 Any time or date given by Adapta Solution Pty Ltd to the Customer is an estimate only. The Customer must still collect the Goods even if late and Adapta Solution Pty Ltd 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 collection and the Customer must insure the Goods on or before collection.
6.2 If any of the Goods are damaged or destroyed following collection prior to ownership passing to the Customer, Adapta Solution Pty Ltd is entitled to receive all insurance proceeds payable for the Goods the production for these terms and conditions by Adapta Solution Pty Ltd is sufficient evidence of Adapta Solution Pty Ltd' rights to receive the insurance proceeds without the need for any person dealing with Adapta Solution Pty Ltd to make further enquiries.
7.1 Adapta Solution Pty Ltd and the Customer agree that ownership of the Goods shall not pass until;
(a) the Customer has paid Adapta Solution Pty Ltd all amounts owing to Adapta Solution Pty Ltd; and
(b) the Customer has met all of its other obligations to Adapta Solution Pty Ltd.
7.2 Receipt by Adapta Solution Pty Ltd of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
7.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 8.1 that the Customer is only a Bailee of the Goods and must return the Goods to Adapta Solution Pty Ltd on request.
(b) the Customer holds the benefit of the Customer's insurance of the Goods on trust for Adapta Solution Pty Ltd and must pay to Adapta Solution Pty Ltd the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
8. Personal Property Securities Act 2009 ("PPSA")
8.1 In this clause "financing statement", "financing change statement", "security agreement", "security interest" has the meaning given to it by the PPSA.
8.2 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 Adapta Solution Pty Ltd 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 Adapta Solution Pty Ltd 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; or
(iii) correct a defect in a statement referred to in clause 9.3 (a)(i) to 9.3(a)(ii).
(b) indemnify, and upon demand reimburse, Adapta Solution Pty Ltd for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Security Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Adapta Solution Pty Ltd;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a 3rd party without the prior written consent f Adapta Solution Pty Ltd;
(e) immediately advise Adapta Solution Pty Ltd of any material change in its business practices in selling the Goods which would result in a change in the nature of proceeds derived from such sales.
8.4 Adapta Solution Pty Ltd and the Customer agrees sections 95, 115 in 125 of the PPSA do not apply to this security agreement created by these terms and conditions.
8.5 The Customer waives their rights to receive notices under section 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 debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by Adapta Solution Pty Ltd, 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 Adapta Solution Pty Ltd under clause 9.3 to 9.7.
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. Limitation of Liability
9.1 The Customer accepts and acknowledges that Adapta Solution Pty Ltd shall not accept liability for damage or loss including personal injury or death in the event that the Customer chooses to install a product that subsequently proved to be insufficient for the purposes that the Customer desired to achieve particularly when this is contrary to any recommendation by Adapta Solution Pty Ltd.
9.2 Adapta Solution Pty Ltd shall accept no responsibility for services (including but not limited to, equipment failure) undertaken by any third party contractor employed by the Customer to effect installation of the Goods. If the Customer believes that they have had any claim in relation to services undertaken by that third party, then that claim must be made against the third party contractor in the first instance.
10. Intellectual Property
10.1 The Customer acknowledges and agrees that the intellectual property and any designs, drawings and documents relating to the Goods shall remain the property of Adapta Solution Pty Ltd.
11. Default and Consequences of Default
11.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Adapta Solution Pty Ltd ' discretion such interest shall compound monthly at such a rate).
11.2 If the Customer owes Adapta Solution Pty Ltd any money the Customer shall indemnify Adapta Solution Pty Ltd from and against all costs and disbursements incurred by Adapta Solution Pty Ltd in recovering the debt (including but not limited to Internet administration fees, legal costs on a solicitor and own client basis, Adapta Solution Pty Ltd collection agency costs, and bank dishonour fees).
11.3 Without prejudice to any other remedies Adapta Solution Pty Ltd may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Adapta Solution Pty Ltd may suspend or terminate the supply of Goods to the Customer. Adapta Solution Pty Ltd will not be liable to the Customer for any loss or damage the Customer suffers because Adapta Solution Pty Ltd has exercised its rights under this clause.
11.4 Without prejudice to Adapta Solution Pty Ltd other remedies at law Adapta Solution Pty Ltd shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts going to Adapta Solution Pty Ltd shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Adapta Solution Pty Ltd becomes overdue or in Adapta Solution Pty Ltd' opinion the Customer will be unable to make payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with his creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
12.1 Adapta Solution Pty Ltd may cancel the order for the Goods at any time before the Goods are collected by giving written notice to the Customer. In giving such notice Adapta Solution Pty Ltd shall repay to the Customer any money paid by the Customer for the Goods. Adapta Solution Pty Ltd shall not be liable for any loss or damage whatsoever arising from such cancellation.
12.2 In the event that the Customer cancels collection of the Goods the Customer shall be liable for any and all loss incurred (whether directly or indirectly) by Adapta Solution Pty Ltd as a direct result of the cancellation (including but not limited to,) any loss of profit on the Goods.
13. Privacy Act 1988
13.1 The Customer agrees that Adapta Solution Pty Ltd may obtain from a credit reporting agency a credit report containing personal credit information about a Customer in relation to credit provided by Adapta Solution Pty Ltd.
13.2 The Customer agrees that Adapta Solution Pty Ltd may exchange information about the Customer with those credit providers either named as trade referees by the Customer or are named in a consumer credit report issued by the credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of the default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, when the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer.
13.3 The Customer consents to Adapta Solution Pty Ltd being given a consumer credit report to collect overdue payment on commercial credit (section 18K(1)(h) Privacy Act 1988).
13.4 The Customer agrees that personal credit information may be used and retained by Adapta Solution Pty Ltd for the following purposes (and for other purposes as shall be agreed between the Customer and Adapta Solution Pty Ltd or required by law from time to time);
(a) the provision of Goods, and/or
(b) the marketing of Goods by Adapta Solution Pty Ltd, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer's credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer's account and/or the collection of amounts outstanding in the Customer's account in relation to the Goods.
13.5 Adapta Solution Pty Ltd may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
13.6 Information given to the Credit reporting agencies may include:
(a) personal particulars (the Customer's name, sex, address, previous addresses, date of birth, name of the employer and drivers licence number);
(b) details concerning the Customer's application for credit for commercial credit and the amount requested;
(c) advice that Adapta Solution Pty Ltd is the current credit provider to the Customer;
(d) advice of any overdue accounts, loan repayments and/or outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Customer's overdue accounts, loan repayments and/or any outstanding monies and longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Adapta Solution Pty Ltd, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer's credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by Adapta Solution Pty Ltd has been paid or otherwise discharged.
14.1 The failure by Adapta Solution Pty Ltd to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Adapta Solution Pty Ltd' 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.
14.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state of New South Wales and are subject to the jurisdiction of the courts in that state.
14.3 Subject to clause 11 Adapta Solution Pty Ltd 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 the breach by Adapta Solution Pty Ltd of these terms and conditions provided that in no case shall the damages excess the price of the Goods.
14.4 The Customer agrees that Adapta Solution Pty Ltd may amend these terms and conditions at any time. If Adapta Solution Pty Ltd makes a change to these terms and conditions, then the change will take effect from the date on which Adapta Solution Pty Ltd publishes the change on its website.
14.5 Neither party shall be liable for any defects due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
14.6 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.