1. Definitions 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 275 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