TERMS AND CONDITIONS OF TRADE
1.1 “Contract” means the terms and conditions contained herein, together with any
Quotation, order, invoice or other document or amendments expressed to be
supplemental to this Contract.
1.2 “KHE” means K.H. Equipment Pty Ltd, its successors and assigns or any person
acting on behalf of and with the authority of K.H. Equipment Pty Ltd.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and
with the authority of the Customer requesting KHE to provide the Services as
specified in any proposal, quotation, order, invoice or other documentation,
(a) if there is more than one Customer, is a reference to each Customer
jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as
a trustee; and
(d) includes the Customer’s executors, administrators, successors and
1.4 “Goods” means all Goods or Services supplied by KHE 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).
1.5 "Confidential Information” means information of a confidential nature whether
oral, written or in electronic form including, but not limited to, this Contract,
either party’s intellectual property, operational information, know-how, trade
secrets, financial and commercial affairs, contracts, client information (including
but not limited to, “Personal Information” such as: name, address, D.O.B,
occupation, driver’s license details, electronic contact (email, Facebook or
Twitter details), medical insurance details or next of kin and other contact
information (where applicable), previous credit applications, credit history) and
1.6 “Cookies” means small files which are stored on a user’s computer. They are
designed to hold a modest amount of data (including Personal Information)
specific to a particular client and website, and can be accessed either by the
web server or the client’s computer. If the Customer does not wish to allow
Cookies to operate in the background when ordering from the website, then
the Customer shall have the right to enable / disable the Cookies first by
selecting the option to enable / disable provided on the website, prior to
ordering Goods via the website.
1.7 “Price” means the Price payable (plus any GST where applicable) for the Goods
as agreed between KHE and the Customer in accordance with clause 6 below.
1.8 “Confidential Information” means any plans, drawings, specifications, trade
secrets, patterns, methods, processes and any other information given to
Customer by KHE for the purpose of carrying out the Services and which is not
in the public domain.
1.9 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax
System (Goods and Services Tax) Act 1999” (Cth).
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 In the event of any inconsistency between the terms and conditions of this
Contract and any other prior document or schedule that the parties have
entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may
only be amended in writing by the consent of both parties.
2.4 Notwithstanding clause 2.2 these terms and conditions are meant to be read in
conjunction with the Terms and Conditions posted on KHE’s website. If there
are any inconsistencies between these documents then the terms and
conditions contained in this document shall prevail.
2.5 Electronic signatures shall be deemed to be accepted by either party
providing that the parties have complied with Section 9 of the Electronic
Transactions (Victoria) Act 2000 or any other applicable provisions of that Act
or any Regulations referred to in that Act.
2.6 The Customer acknowledges and agrees that:a
(a) the supply of Goods on credit shall not take effect until the Customer
has completed a credit application with KHE and it has been
approved with a credit limit established for the account;
(b) where the Customer does not elect to control their purchases by a
Purchase Order and/or a Letter of Authority, then all purchases made
by Customer and/or any other third party acting on behalf of the
Customer to which the Goods are charged to the Customer’s credit
account, shall remain at all times payable by the Customer. All said
notices of restrictions pertaining to purchases must be in writing and
will remain in place until such time as the Customer revokes;
(c) the Customer agrees to notify KHE in writing immediately upon of the
departure of the Customer employee if an authorised account user.
Failure to advise KHE of such departures, then the Customer
acknowledges they will be bound by all purchase orders made by that
(d) in the event that the supply of Goods request exceeds the Customers
credit limit and/or the account exceeds the payment terms, KHE
reserves the right to refuse delivery; and
(e) that the supply of Goods for accepted orders may be subject to
availability and if, for any reason, Goods are not or cease to be
available, KHE reserves the right to vary the Price with alternative
Goods as per clause 6.2(c).
2.7 Any advice, recommendation, information, assistance or service provided by
KHE in relation to Goods or Services supplied is given in good faith, is based
on KHE’s own knowledge and experience and shall be accepted without
liability on the part of KHE, and it shall be the responsibility of the Customer to
confirm the accuracy and reliability of the same in light of the use to which the
Customer makes or intends to make of the Goods or Services.
2.8 None of KHE’s agents or representatives are authorised to make any
representations, statements, conditions or agreements not expressed by the
manager of KHE in writing nor is KHE bound by any such unauthorised
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that KHE shall, without prejudice,
accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by KHE in the formation
and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic)
supplied by KHE in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause
3.1, and is not attributable to the negligence and/or wilful misconduct of KHE;
the Customer shall not be entitled to treat this Contract as repudiated nor
render it invalid.
4. Distribution of Goods via an Approved Reseller
4.1 The Customer agrees that until they are authorised as a distributor by KHE, (and
hereinafter the Customer shall be referred to as “Reseller” for the purposes of
this clause) the Reseller shall not be able to sell the Goods on as a Reseller for
KHE or represent to any third parties that the Reseller is in any way acting for
KHE. KHE shall not accept responsibility or agree to be bound in any way by
any contracts with third parties to whom the Reseller is a party.
4.2 At KHE’s sole discretion the Reseller acknowledges that only approved
Reseller’s shall have the authority to accept internet orders via their respective
website and/or any alternative online auction sites.
4.3 Orders from a Reseller are accepted on the basis that:
(a) unless otherwise agreed by prior approval between KHE and the
Reseller, Goods may only be resold to consumers at retail level and
may not be sold at wholesale level or to any other trader that is known
or is suspected to be purchasing for resale, and
(b) Goods are to be sold for retail or displayed for sale at only the
nominated locations advised by the Reseller to KHE, and
(c) sale of Goods by mail order, internet or any other method outside of
the traditional display and sell at the approved location is prohibited
without prior written consent of KHE, and
(d) Goods are to be displayed, presented and marketed in the manner that
is in the best interest of the brand name.
4.4 Any default of clauses 4.1-4.3 may at KHE’s sole discretion be subject to
immediate and permanent closure of account facilities, with any account
balances payable immediately on demand.
4.5 KHE has sole discretion on which brands or Goods are made available to any
approved Reseller and KHE does not guarantee continuing supply of any
specific brand or Goods.
5. Change in Control
5.1 The Customer shall give KHE 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 and contact phone or fax number/s, change of
trustees or business practice). The Customer shall be liable for any loss
incurred by KHE as a result of the Customer’s failure to comply with this clause.
6. Price and Payment
6.1 At KHE’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by KHE to the Customer; or
(b) the Price as at the date of delivery of the Goods according to KHE’s
current price list; or
(c) KHE’s quoted price (subject to clause 6.2) which will be valid for the
period stated in the quotation or otherwise for a period of thirty (30)
6.2 KHE reserves the right to change the Price:
(a) if a variation to the Goods which are to supplied is requested; or
(b) if a variation to the Services originally scheduled (including any
applicable plans or specifications) is requested; or
(c) if during the course of the Services, the Goods cease to be available
from KHE’s third party suppliers, then KHE reserves the right to
provide alternative Goods, subject to prior confirmation and
agreement of both parties; or
(d) in the event of increases to KHE in the cost of labour or materials
(including but not limited to overseas transactions that may increase
as a consequence of variations in foreign currency rates of exchange
and/or international freight and insurance charges) which are beyond
6.3 Variations will be charged for on the basis of KHE’s quotation, and will be
detailed in writing, and shown as variations on KHE’s invoice. The Customer
shall be required to respond to any variation submitted by KHE within ten (10)
working days. Failure to do so will entitle KHE to add the cost of the variation
to the Price. Payment for all variations must be made in full at the time of their
6.4 At KHE’s sole discretion a non-refundable deposit may be required. The
deposit amount or percentage of the Price will be stipulated at the time of the
order of the Goods and shall become immediately due and payable.
6.5 Time for payment for the Services being of the essence, the Price will be
payable by the Customer on the date/s determined by KHE, which may be:
(a) on completion of the Services (or delivery of the Goods); or
(b) by way of instalments/progress payments in accordance with KHE’s
delivery/payment schedule; or
(c) for approved credit account holders, thirty (30) days following the
end of the month in which a statement is posted to the Customer’s
address or address for notices; or
(d) the date specified on any invoice or other form as being the date for
(e) failing any notice to the contrary, the date which is seven (7) days
following the date of any invoice given to the Customer by KHE.
6.6 Payment may be made by cheque, electronic/on-line banking, credit card (a
surcharge may apply per transaction), or by any other method as agreed to
between the Customer and KHE.
6.7 KHE may in its discretion allocate any payment received from the Customer
towards any invoice that KHE determines and may do so at the time of receipt
or at any time afterwards. On any default by the Customer KHE may re-allocate
any payments previously received and allocated. In the absence of any
payment allocation by KHE, payment will be deemed to be allocated in such
manner as preserves the maximum value of KHE’s Purchase Money Security
Interest (as defined in the PPSA) in the Goods.
6.8 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 KHE nor to withhold
payment of any invoice because part of that invoice is in dispute.
6.9 Unless otherwise stated the Price does not include GST. In addition to the
Price the Customer must pay to KHE an amount equal to any GST KHE must
pay for any supply by KHE under this or any other Contract 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
7. Delivery of Goods
7.1 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 KHE’s address; or
(b) KHE (or KHE’s nominated carrier) delivers the Goods to the Customer’s
nominated address even if the Customer is not present at the address.
7.2 At KHE’s sole discretion, the cost of delivery is in addition to the Price.
7.3 KHE may deliver the Goods in separate instalments. Each separate instalment
shall be invoiced and paid in accordance with the provisions in these terms
7.4 Delivery of the Goods to a third party nominated by the Customer is deemed to
be delivery to the Customer for the purposes of this agreement.
7.5 Any time specified by KHE for delivery of the Goods is an estimate only. The
Customer must take delivery by receipt or collection of the Goods whenever
they are tendered for delivery. KHE will not be liable for any loss or damage
incurred by the Customer as a result of delivery being late. In the event that the
Customer is unable to take delivery of the Goods as arranged then KHE shall be
entitled to charge a reasonable fee for redelivery and/or storage.
8. Goods On Consignment
8.1 Where Goods are supplied on consignment the following provisions apply
specifically to those Goods:
(a) the Goods shall be at the Customer’s risk from the time of delivery and
the Customer shall be responsible for insuring the Goods; and
(b) the Customer may retain possession of the Goods until the Customer
sells them or KHE requires re-delivery of them to KHE, whichever first
(c) if KHE requires re-delivery of the Goods such re-delivery shall be at the
Customer’s cost; and
(d) KHE shall fax the Customer a consignment form on a monthly basis and
the Customer shall notify KHE within forty-eight (48) hours of receipt by
return fax of all consignment Goods sold during that that period and
shall within seven (7) days of that monthly advice pay KHE for the
Goods sold. Failure to comply with confirmation will result in KHE’s
right to invoice the Customer for all consignment Goods held in stock.
8.2 Furthermore, consignment Goods shall at all times remain the property of KHE
and are returnable on demand by KHE. In the event that the consignment
Goods are not returned to KHE in the condition in which the consignment
Goods were delivered then KHE retains the right to charge the cost of repair or
replacement of the consignment Goods.
8.3 The Customer further agrees that;
(a) KHE have the right to inspect the consignment Goods at any time
upon giving written notice to the Customer; and
(b) KHE reserves the right to cease the supply of consignment Goods
and enforce clause 8.2 if upon inspection it is found the consignment
Goods totals do not correspond with information supplied by the
Customer and/or the consignment Goods are not stored in
accordance with KHE’s instructions; and
(c) consignment Goods shall be placed on display at front of house
together with any advertising material supplied by KHE to the
(d) the stand for consignment Goods are to be kept stocked to the
agreed minimum levels at all times; and
(e) the Customer is responsible for the upkeep of the stand and agrees
to take all due care to ensure that the consignment Goods are not
damaged or marked in any way; and
(f) they shall immediately advise KHE if for any reason they opt to
remove the consignment Goods from display area.
9.1 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.
9.2 If any of the Goods are damaged or destroyed following delivery but prior to
ownership passing to the Customer, KHE is entitled to receive all insurance
proceeds payable for the Goods. The production of these terms and conditions
by KHE is sufficient evidence of KHE’s rights to receive the insurance proceeds
without the need for any person dealing with KHE to make further enquiries.
9.3 If the Customer requests KHE to leave Goods outside KHE’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.
9.4 KHE shall not be liable for any defect or damage resulting from incorrect or
faulty installation by any other third party installer.
9.5 KHE shall be entitled to rely on the accuracy of any plans, specifications and
other information provided by the Customer. The Customer acknowledges and
agrees that in the event that any of this information provided by the Customer is
inaccurate, KHE accepts no responsibility for any loss, damages, or costs
however resulting from these inaccurate plans, specifications or other
10.1 The Customer shall ensure that KHE has clear and free access to effect delivery
of the Goods. KHE shall not be liable for any loss or damage to the site
(including, without limitation, damage to pathways, driveways and concreted or
paved or grassed areas) unless due to the negligence of KHE.
11.1 KHE and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid KHE all amounts owing to KHE; and
(b) the Customer has met all of its other obligations to KHE.
11.2 Receipt by KHE 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
11.3 It is further agreed that, until ownership of the Goods passes to the Customer in
accordance with clause 11.1:
(a) the Customer is only a bailee of the Goods and must return the Goods
to KHE on request.
(b) the Customer holds the benefit of the Customer’s insurance of the
Goods on trust for KHE and must pay to KHE the proceeds of any
insurance in the event of the Goods being lost, damaged or
(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 KHE and must pay or deliver the proceeds to KHE on
(d) the Customer should not convert or process the Goods or intermix
them with other goods but if the Customer does so then the Customer
holds the resulting product on trust for the benefit of KHE and must
sell, dispose of or return the resulting product to KHE as it so directs.
(e) the Customer irrevocably authorises KHE to enter any premises where
KHE believes the Goods are kept and recover possession of the
(f) KHE 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 KHE.
(h) KHE may commence proceedings to recover the Price of the Goods
sold notwithstanding that ownership of the Goods has not passed to
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security
agreement, and security interest has the meaning given to it by the PPSA.
12.2 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 and/or collateral (account) – being a monetary obligation of the Customer
to KHE for Services – that have previously been supplied and that will be
supplied in the future by KHE to the Customer.
12.3 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 KHE may reasonably require to;
(i) register a financing statement or financing change statement in
relation to a security interest on the Personal Property
(ii) register any other document required to be registered by the
(iii) correct a defect in a statement referred to in clause 12.3(a)(i) or
(b) indemnify, and upon demand reimburse, KHE for all expenses incurred
in registering a financing statement or financing change statement on
the Personal Property Securities 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 KHE;
(d) not register, or permit to be registered, a financing statement or a
financing change statement in relation to the Goods and/or collateral
(account) in favour of a third party without the prior written consent of
(e) immediately advise KHE 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.
12.4 KHE 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.
12.5 The Customer waives their rights to receive notices under sections 95, 118,
121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Customer waives their rights as a grantor and/or a debtor under sections
142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by KHE, the Customer waives their right to
receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Customer must unconditionally ratify any actions taken by KHE under
clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary (including those contained in
this clause 12) nothing in these terms and conditions is intended to have the
effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of KHE 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).
13.2 The Customer indemnifies KHE from and against all KHE’s costs and
disbursements including legal costs on a solicitor and own client basis incurred in
exercising KHE’s rights under this clause.
13.3 The Customer irrevocably appoints KHE and each director of KHE as the
Customer’s true and lawful attorney/s to perform all necessary acts to give effect
to the provisions of this clause 13 including, but not limited to, signing any
document on the Customer’s behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Customer must inspect the Goods on delivery and must within seven (7) days
of delivery notify KHE 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 KHE to inspect the Goods.
14.2 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).
14.3 KHE acknowledges that nothing in these terms and conditions purports to modify
or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the
Non-Excluded Guarantees, KHE makes no warranties or other representations
under these terms and conditions including but not limited to the quality or
suitability of the Goods. KHE’s liability in respect of these warranties is limited to
the fullest extent permitted by law.
14.5 If the Customer is a consumer within the meaning of the CCA, KHE’s liability is
limited to the extent permitted by section 64A of Schedule 2.
14.6 If KHE is required to replace the Goods under this clause or the CCA, but is
unable to do so, KHE may refund any money the Customer has paid for the
14.7 If the Customer is not a consumer within the meaning of the CCA, KHE’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 KHE at KHE’s sole discretion;
(b) limited to any warranty to which KHE is entitled, if KHE did not
manufacture the Goods;
(c) otherwise negated absolutely.
14.8 Subject to this clause 14, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 14.1; and
(b) KHE has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s
cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they
were delivered as is possible.
14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, KHE 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
(e) fair wear and tear, any accident, or act of God.
14.10 In the case of second hand Goods, unless the Customer is a consumer under the
CCA, the Customer acknowledges that it has had full opportunity to inspect the
second hand Goods prior to delivery and accepts them with all faults and that to
the extent permitted by law no warranty is given by KHE as to the quality or
suitability for any purpose and any implied warranty, statutory or otherwise, is
expressly excluded. The Customer acknowledges and agrees that KHE has
agreed to provide the Customer with the second hand Goods and calculated the
Price of the second hand Goods in reliance of this clause 14.10.
14.11 KHE may in its absolute discretion accept non-defective Goods for return in
which case KHE may require the Customer to pay handling fees of up to twenty-
five percent (25%) of the value of the returned Goods plus any freight costs.
14.12 Notwithstanding anything contained in this clause if KHE is required by a law to
accept a return then KHE will only accept a return on the conditions imposed by
15. Intellectual Property
15.1 Where KHE has designed, drawn or developed Goods for the Customer, then the
copyright in any designs and drawings and documents shall remain the property
of KHE. Under no circumstances may such designs, drawings and documents be
used without the express written approval of KHE.
15.2 The Customer warrants that all designs, specifications or instructions given to
KHE will not cause KHE to infringe any patent, registered design or trademark in
the execution of the Customer’s order and the Customer agrees to indemnify
KHE against any action taken by a third party against KHE in respect of any such
15.3 The Customer agrees that KHE may (at no cost) use for the purposes of
marketing or entry into any competition, any documents, designs, drawings or
Goods which KHE has created for the Customer.
16.1 Each party agrees to treat all information and ideas communicated by the other
party confidential and each agrees not to divulge it to any third party, without the
other party's written consent.
16.2 The quotation and the information contained in the quotation provided by KHE
to the Customer is done so on a “commercial in confidence” basis thereby, the
Customer agrees not to reproduce or provide said information in any manner to
any third party without the prior written approval of KHE.
17. Default and Consequences of Default
17.1 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 KHE’s sole discretion such interest shall
compound monthly at such a rate) after as well as before any judgment.
17.2 If the Customer owes KHE any money the Customer shall indemnify KHE from
and against all costs and disbursements incurred by KHE in recovering the debt
(including but not limited to internal administration fees, legal costs on a solicitor
and own client basis, KHE’s contract default fee, and bank dishonour fees).
17.3 Further to any other rights or remedies KHE may have under this Contract, if a
Customer has made payment to KHE, and the transaction is subsequently
reversed, the Customer shall be liable for the amount of the reversed transaction,
in addition to any further costs incurred by KHE under this clause 16 where it can
be proven that such reversal is found to be illegal, fraudulent or in contravention
to the Customer’s obligations under this Contract.
17.4 Without prejudice to KHE’s other remedies at law KHE shall be entitled to cancel
all or any part of any order of the Customer which remains unfulfilled and all
amounts owing to KHE shall, whether or not due for payment, become
immediately payable if:
(a) any money payable to KHE becomes overdue, or in KHE’s opinion the
Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by
(c) 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; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar
person is appointed in respect of the Customer or any asset of the
18.1 Without prejudice to any other remedies KHE may have, if at any time the
Customer is in breach of any obligation (including those relating to payment)
under these terms and conditions KHE may suspend or terminate the supply of
Goods to the Customer. KHE will not be liable to the Customer for any loss or
damage the Customer suffers because KHE has exercised its rights under this
18.2 KHE may cancel any contract to which these terms and conditions apply or cancel
delivery of Goods at any time before the Goods are delivered by giving written
notice to the Customer. On giving such notice KHE shall repay to the Customer any
money paid by the Customer for the Goods. KHE shall not be liable for any loss or
damage whatsoever arising from such cancellation.
18.3 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 KHE as a direct
result of the cancellation (including, but not limited to, any loss of profits).
18.4 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.
19.1 All emails, documents, images or other recorded information held or used by KHE
is Personal Information, as defined and referred to in clause 19.3, and therefore
considered Confidential Information. KHE acknowledges its obligation in relation
to the handling, use, disclosure and processing of Personal Information pursuant
to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy
Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory
requirements, where relevant in a European Economic Area (“EEA”), under the EU
Data Privacy Laws (including the General Data Protection Regulation “GDPR”)
(collectively, “EU Data Privacy Laws”). KHE acknowledges that in the event it
becomes aware of any data breaches and/or disclosure of the Customers
Personal Information, held by KHE that may result in serious harm to the Customer,
KHE will notify the Customer in accordance with the Act and/or the GDPR. Any
release of such Personal Information must be in accordance with the Act and the
GDPR (where relevant) and must be approved by the Customer by written
consent, unless subject to an operation of law.
19.2 Notwithstanding clause 19.1, privacy limitations will extend to KHE in respect of
Cookies where transactions for purchases/orders transpire directly from KHE’s
website. KHE agrees to display reference to such Cookies and/or similar tracking
technologies, such as pixels and web beacons (if applicable), such technology
allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to KHE when KHE sends an email to the
Customer, so KHE may collect and review that information (“collectively
In order to enable / disable the collection of Personal Information by way of
Cookies, the Customer shall have the right to enable / disable the Cookies first by
selecting the option to enable / disable, provided on the website prior to
proceeding with a purchase/order via KHE’s website.
19.3 The Customer agrees for KHE to obtain from a credit reporting body (CRB) a
credit report containing personal credit information (e.g. name, address, D.O.B,
occupation, driver’s license details, electronic contact (email, Facebook or Twitter
details), medical insurance details or next of kin and other contact information
(where applicable), previous credit applications, credit history) about the Customer
in relation to credit provided by KHE.
19.4 The Customer agrees that KHE may exchange information about the Customer
with those credit providers and with related body corporates for the following
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(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
(d) to assess the creditworthiness of the Customer including the
Customer’s repayment history in the preceding two (2) years.
19.5 The Customer consents to KHE being given a consumer credit report to collect
overdue payment on commercial credit.
19.6 The Customer agrees that personal credit information provided may be used and
retained by KHE for the following purposes (and for other agreed purposes or
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment
and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or
credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the
19.7 KHE may give information about the Customer to a CRB for the following
(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.
19.8 The information given to the CRB may include:
(a) Personal Information as outlined in 19.3 above;
(b) name of the credit provider and that KHE 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 request of payment
has been made and debt recovery action commenced or alternatively
that the Customer no longer has any overdue accounts and KHE has
been paid or otherwise discharged and all details surrounding that
discharge (e.g. dates of payments);
(g) information that, in the opinion of KHE, 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).
19.9 The Customer shall have the right to request (by e-mail) from KHE:
(a) a copy of the Personal Information about the Customer retained by
KHE and the right to request that KHE correct any incorrect Personal
(b) that KHE does not disclose any Personal Information about the
Customer for the purpose of direct marketing.
19.10 KHE 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 fulfil the obligations of this
Contract or is required to be maintained and/or stored in accordance with the law.
19.11 The Customer can make a privacy complaint by contacting KHE via e-mail. KHE 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.
20. Unpaid Seller’s Rights
20.1 Where the Customer has left any item with KHE for repair, modification, exchange
or for KHE to perform any other service in relation to the item and KHE has not
received or been tendered the whole of any monies owing to it by the Customer,
KHE shall have, until all monies owing to KHE are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in
accordance with any legislation applicable to the sale or disposal of
20.2 The lien of KHE shall continue despite the commencement of proceedings, or
judgment for any monies owing to KHE having been obtained against the
21. Service of Notices
21.1 Any written notice given under this Contract shall be delivered by handing the
notice to the other party, in person, leaving it at the address of the other party as
stated in this Contract, or by sending it by registered post to the address of the
other party as stated in this Contract.
21.2 Any notice that is posted shall be deemed to have been served, unless the
contrary is shown, at the time when by the ordinary course of post the notice
would have been delivered.
22.1 If the Customer at any time upon or subsequent to entering in to the Contract is
acting in the capacity of trustee of any trust (“Trust”) then whether or not KHE may
have notice of the Trust, the Customer covenants with KHE as follows:
(a) the Contract extends to all rights of indemnity which the Customer now
or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the
Trust to enter into the Contract and the provisions of the Trust do not
purport to exclude or take away the right of indemnity of the Customer
against the Trust or the trust fund. The Customer will not release the
right of indemnity or commit any breach of trust or be a party to any
other action which might prejudice that right of indemnity.
(c) The Customer will not without consent in writing of KHE (KHE will not
unreasonably withhold consent), cause, permit, or suffer to happen
any of the following events;
(i) the removal, replacement or retirement of the Customer as
trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
23.1 Any dispute or difference arising as to the interpretation of these terms and
conditions or as to any matter arising hereunder, shall be submitted to, and settled
by, arbitration in accordance with the Commercial Arbitration Act 2010 or its
23.2 The failure by either party to enforce any provision of these terms and conditions
shall not be treated as a waiver of that provision, nor shall it affect that party’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.
23.3 These terms and conditions and any contract to which they apply shall be
governed by the laws of Victoria the state in which KHE has its principal place of
business, and are subject to the jurisdiction of the courts in that state.
23.4 Subject to clause 14 KHE 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 KHE of these terms and
conditions (alternatively KHE’s liability shall be limited to damages which under no
circumstances shall exceed the Price of the Goods).
23.5 KHE may licence and/or assign all or any part of its rights and/or obligations under
this Contract without the Customer’s consent.
23.6 The Customer cannot licence or assign without the written approval of KHE.
23.7 KHE may elect to subcontract out any part of the Services but shall not be relieved
from any liability or obligation under this Contract by so doing. Furthermore, the
Customer agrees and understands that they have no authority to give any
instruction to any of KHE’s sub-contractors without the authority of KHE.
23.8 The Customer agrees that KHE may amend their general terms and conditions for
subsequent future contracts with the Customer by disclosing such to the
Customer in writing. These changes shall be deemed to take effect from the date
on which the Customer accepts such changes, or otherwise at such time as the
Customer makes a further request for KHE to provide Goods to the Customer.
23.9 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 event beyond the
reasonable control of either party.
23.10 Both parties warrant that they have the power to enter into this Contract and have
obtained all necessary authorisations to allow them to do so, they are not
insolvent and that this Contract creates binding and valid legal obligations on