Terms and Conditions
TERMS AND CONDITIONS OF SALE
These are the entire Terms and Conditions of Sale of all Goods, merchandise and services (“the Goods”) supplied by KUMFI KENNELS AUSTRALIA PTY LTD (ACN 612 013 028) (ABN 93 612 013 028) and any associated, related, subsidiary and parent companies, successors and assigns (all of which are referred to as “KUMFI”) to any person, firm or company placing an order with KUMFI or for the purchase of the Goods (“the Customer”). Except as otherwise expressly agreed upon in writing between a duly authorised officer of KUMFI and the Customer, these Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by any Customer.
- All orders placed with KUMFI, whether through a credit account or online shall only be accepted subject to these Terms and Conditions.
- KUMFI may at any time, and from time to time alter these Terms and Conditions of Sale and such altered Terms and Conditions of Sale shall apply from the date of alteration. A copy of current Terms and Conditions of Sale can be found on KUMFI’s website, https://kumfikennels.com.au. The Customer acknowledges and warrants that he/she/it will regularly inspect the said website for any updated or altered Terms and Conditions and that there is no duty or obligation whatsoever on KUMFI to inform or advise the Customer of any such altered Term.
- Goods & Services Tax (“GST”), Sales Tax or any other applicable tax or duty payable shall be paid by or reimbursed by the Customer to KUMFI on demand, and the Customer shall indemnify and keep indemnified KUMFI in respect of all taxes and duties including GST arising out of any sale of Goods or the subsequent use of the Goods after the sale to the Customer. The amount of such tax or duty shall be calculated using the rates and methods of assessment in force at the time of delivery.
- If any provision in these Terms and Conditions of Sale is or becomes void or unenforceable, it may be severed from these Terms without any effect on the validity or enforceability of the Terms and Conditions of Sale and KUMFI’s rights, remedies or recourses will not in any way be prejudiced or adversely affected by such severance.
- The sale to and purchase by the Customer from KUMFI does not provide to the Customer any licence or right under any copyright, patent, registered design or trademark which is the property of KUMFI and the Customer will conform to all reasonable requirements imposed by KUMFI with respect to trademarks, identification marks and advertising in respect of the Goods.
- All specifications, trade secrets and other information relating to the Goods or the business of KUMFI which are divulged to the Customer are to be regarded as confidential and will not be disclosed by the Customer to any third party except where disclosure is necessary for the purpose of these Terms and Conditions, or with the prior written consent of KUMFI.
- PRICES AND QUOTATIONS
- All prices shall be those referred to in KUMFI’s price lists, listed on KUMFI’s website at https://kumfikennels.com.au and/or arrangements current at the date of delivery. Prices shall be subject to change without notice, including where there is any increase to KUMFI’s cost between the date of quotation and the date of delivery.
- Prices quoted are exclusive to any delivery, insurance, special packing or applicable taxes.
- All prices are in Australian Dollars and payment shall be made in Australian currency unless otherwise stated.
- Any person who accepts the Quotation warrants he/she/it is the duly authorised agent of the Customer for the purpose of placing the Order. An order is deemed to have been accepted by the Customer upon the signing of the Quotation and/or payment of a deposit. By accepting the order the Customer is deemed to have read and understood the KUMFI’s Terms and Conditions of Sale.
- No quotation by KUMFI shall constitute an offer.
- The Customer acknowledges that KUMFI has no obligation to agree to provide, or continue to provide any credit facilities to the Customer. The Customer is not entitled to any credit facilities until it receives notice from KUMFI to that effect and KUMFI may at any time by notice to the Customer reduce, vary or terminate any such credit facilities at its discretion. Any credit limit that may apply from time to time in respect of credit facilities is for the administrative convenience and solely for the benefit of KUMFI and such credit limit does not constitute a term of this agreement nor of any Deed of Guarantee, Indemnity and Charge in respect of the obligations of the Customer.
- The Customer agrees that the quantity specified in any order may be varied by KUMFI and its discretion by up to 10% less than the quantity specified. The Customer agrees to accept delivery of such quantity and to pay for the quantity notwithstanding the variation.
- Where particulars are required to be supplied by the Customer before KUMFI can proceed with or complete any order, those particulars shall be supplied within a reasonable time to enable KUMFI to deliver the Goods within the specified time. Failure by the Customer to supply such particulars or instructions within a reasonable time shall constitute a breach of this contract by the Customer for which no claim can be made against KUMFI.
- For any special or custom orders, KUMFI requires cleared payment of 50% of the total cost of the order is received by KUMFI.
- ONLINE ORDERS
- Any Order through KUMFI’S website at https://kumfikennels.com.au constitutes an offer to purchase the Goods subject to these Terms and Conditions and the offer is only accepted by KUMFI once an e-mail has been sent confirming the Goods are ready for delivery or pick-up. An Order Confirmation e-mail is acknowledgment that KUMFI has received the Customer’s order and is not acceptance of that order.
- Except at KUMFI’s discretion, no refunds, credits or replacements are offered if the Customer makes an incorrect choice, fails to verify and accurately provide information when placing an order, or for change of mind.
- Any images or photographs of the Goods are for illustration only. KUMFI uses reasonable endeavours to ensure Goods are displayed accurately however actual Goods received may differ slightly from those shown.
- All Goods displayed are subject to availability. If Goods become unavailable, KUMFI will use reasonable endeavours to notify a Customer as soon as KUMFI becomes aware of it and will either notify the Customer when Goods will be delivered, or refund the Customer as soon as reasonably practical.
- By placing an order through KUMFI’s website, the Customer warrants that:
- The Customer is legally capable of entering into a binding contract and is 18 years or older;
- The information provided to KUMFI is complete and accurate;
- The Customer is an Australian resident.
- KUMFI may refuse to accept or reverse a Customer’s order for the following reasons:
- The Goods are not available;
- KUMFI cannot obtain authorisation for a Customer’s payment;
- If there has been a pricing or description error;
- If the Customer does not meet the eligibility criteria in Clause 3.5.
- TERMS OF PAYMENT
- Unless otherwise stated on the Invoice, all prices are strictly nett.
- The granting of Credit shall be at the absolute discretion of KUMFI and unless otherwise demanded by KUMFI, the Customer shall make payment of all amounts payable within thirty (30) days after the end of the month in which delivery is made or thirty (30) days from the date of the Invoice, whichever is the earlier.
- Customers shall not be entitled to withhold payments by reason of any account query, dispute or set off.
- If the Customer fails to make payment in accordance with Clause 4, KUMFI shall be entitled to:
- Require the payment of cash upon delivery of any further Goods and all outstanding monies to become immediately due and payable on demand;
- Charge the Customer interest at the Reserve Bank cash rate plus 2% on all overdue amounts (including late payment charges and amounts other than the price) calculated on a day to day basis on any monies due but unpaid. Such interest charge is to be computed from the due date for payment AND the parties agree that such interest charge is not a penalty but a true measure of damages incurred by KUMFI;
- Claim from the Customer all costs, expenses and charges incurred on any account whatsoever on an indemnity basis including but not limited to any action taken by KUMFI to recover monies or Goods owing by the Customer, or pursuant to any action taken by KUMFI or the Customer to enforce these Terms and Conditions of Sale, including but not limited to mercantile agents’ costs and legal costs and disbursements on a solicitor/client basis;
- Credit any payments received from the Customer first against any interest charges and costs and all such charges shall be payable on demand;
- Cease any further deliveries to the Customer and to terminate any agreement in relation to Goods that have not been delivered;
- Preclude Customers who have overdue accounts from participating in any special deals, discounts, bonus payment redemptions, rebates and all other incentive programs until their accounts are no longer overdue.
- Any date or time quoted for delivery is an estimate only and KUMFI shall endeavour to effect delivery at the time or times required by the Customer but failure to do so shall not confer any right of cancellation or refusal of delivery on the Customer or render KUMFI liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof.
- The Customer shall not be relieved of any obligation to accept or pay for Goods by reason of any delay in delivery or any strike, lockout, unavailability of materials, accidents to machinery, differences with workmen, breakdowns, shortages of supplies or labour, fires, floods, storm or tempest, transport delays, acts of God, restrictions or intervention imposed by any laws, regulations, governments or agencies thereof and any other cause beyond the control of KUMFI or any other cause whatsoever.
- KUMFI’s obligation to deliver shall be discharged on arrival of the Goods at the Customer’s nominated delivery destination, nominated transport company, nominated agent or the address appearing on the Invoice. The Customer shall unload the Goods upon delivery, provided that if the Customer is unable or unwilling to accept physical delivery of the Goods when the Goods are ready for delivery, KUMFI shall be entitled to charge a fee for any delay experienced or arrange for the storage of the Goods at the risk and cost of the Customer including all transportation, storage and other consequential costs. KUMFI may, at its discretion, make and Invoice partial orders and each partial order and subsequent delivery shall be a separate sale pursuant to these Terms and Conditions.
- KUMFI reserves the right to deliver by instalments, and each instalment will be taken to be sold under a separate contract. The Customer will not be entitled to cancel the balance of the order if KUMFI fails to deliver any instalment. If the Customer fails to pay for any instalment, KUMFI may elect to treat the default as a breach of contract relating to each other instalment.
- Unless otherwise agreed, the Customer will be responsible for all costs of delivery of the Goods to the delivery point nominated by the Customer.
- Delivery does not include assembly or installation and any installation is at KUMFI’s discretion.
- The Customer shall examine the Goods immediately after delivery and KUMFI shall not be liable for any misdelivery, shortage, defect or damage unless KUMFI receives details in writing to firstname.lastname@example.org within seven (7) days of the date of delivery of the Goods.
- PROPERTY AND RISK
7.1 Notwithstanding delivery of the Goods or their installation, property in any given Goods shall remain with KUMFI until the Customer has paid and discharged any and all other indebtedness to KUMFI on any account whatsoever, including all applicable GST and other taxes, levies and duties. Any payment made by or on behalf of a Customer which is later avoided by the application of any Statutory Provision shall be deemed not to discharge the Customer’s indebtedness and, in such an event the parties are to be restored to rights which each respectively would have had if the payment had not been made. The risk in the Goods shall pass to the Customer upon delivery to the Customer or his agent or to a transport company nominated by the Customer. The Customer acknowledges that it is in possession of the Goods solely as a bailee for KUMFI until payment as defined in clause 3 has been made in full to KUMFI and until such payment
(a) The Customer shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery or pick-up; and
(b) The Customer shall store the Goods separately from its own Goods and those of any other party and in a manner which clearly identifies the Goods, whether as separate chattels or as components, as the property of KUMFI.
7.2 The Customer shall maintain records of Goods owned by KUMFI identifying them as KUMFI’s property, of the persons to whom the Goods are sold or disposed to and of the payments made by such persons for such Goods. The Customer shall allow KUMFI to inspect these records and the Goods themselves on request.
7.3 The Customer hereby irrevocably grants to KUMFI, its agents and servants, an unrestricted right and licence, without notice to enter premises occupied by the Customer to identify and remove any of the Goods the property of KUMFI in accordance with the Terms and Conditions of Sale without in any way being liable to the Customer or any person claiming through the Customer. KUMFI shall have the right to sell or dispose of any such Goods removed or otherwise in its sole discretion and shall not be liable for any loss occasioned thereby.
7.4 The Customer must not, except with the express written consent on KUMFI, sell the Goods online, to persons, organisations or companies outside of Australia, or to persons, organisations or companies that it reasonably suspects intends to resell the Goods to any person, organisation or Company outside of Australia.
7.5 The Customer shall be at liberty to agree to sell the Goods subject to the condition that until payment has been made in accordance with clause 6, the Customer shall sell as an agent and bailee for KUMFI and that the entire proceeds from the sale thereof shall be held in a separate account on trust for KUMFI.
7.6 The right to on-sell, deal or otherwise dispose of the Goods in the normal course of trade may be revoked at any time by KUMFI and shall automatically cease if a Receiver is appointed over any of the assets on the undertaking of the Customer or if a winding up order is made against the Customer or if the Customer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation) or administration or calls a meeting of, or makes any arrangement or composition with, creditors or commits any act of bankruptcy or where the Customer is in default of any of its obligations to KUMFI.
- PERSONAL PROPERTY SECURITIES ACT 2009 (“PPS ACT”)
- The Customer acknowledges and consents to KUMFI maintaining registration on the register of any security interest contemplated by these Terms and Conditions of Sale in any manner KUMFI considers appropriate. The Customer agrees to execute all documents and provide all information and assistance required by KUMFI to ensure registration and maintenance of any security interest, including to ensure that KUMFI may acquire and maintain any perfected security interests relating to the Goods and any proceeds, to register a financing statement or financing change statement and to ensure that KUMFI’s position, rights and obligations are maintained in spite of the PPS Act.
- The Customer acknowledges that KUMFI may register a financing statement or financing change statement in respect of a security interest (including any purchase money security interest), and waives any right to receive notice of a verification statement in relation to any registration in respect of the Goods.
- The Customer agrees not to register a financing change statement in respect of a security interest contemplated by these Terms and Conditions of Sale, or in favour of a third party, without KUMFI’s prior written consent.
- To the extent that Chapter 4 of the PPS Act would otherwise apply to any enforcement of a security interest, and section 115(1) of the PPS Act allows parties to contract out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and the Customer agrees that it has no rights under them: section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143.
- Insofar as section 115(7) of the PPS Act allows for the contracting out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and the Customer agrees it has no rights under them: section 127; section 129(2) and (3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
- Unless otherwise agreed and to the extent permitted by the PPS Act, both KUMFI and the Customer agree not to disclose any information contemplated in section 275(1) of the PPS Act to an interested person, or as requested by an interested person. The Customer agrees to waive any right it may have had under section 275(7)(c) of the PPS Act to authorise any disclosure of that information.
- For the purpose of section 20(2) of the PPS Act, the collateral is the Goods, including any Goods provided by KUMFI from time to time. These Terms and Conditions of Sale and the Application for Commercial Credit are a security agreement for the purposes of the PPS Act.
- KUMFI may, at its absolute discretion, apply any amounts received pursuant to these Terms and Conditions of Sale in any way KUMFI determines, to satisfy any obligations relating to a security interest contemplated by these Terms.
- Neither party excludes or limits the application of any Statute (including the Competition and Consumer Act 2010 (Cth) as amended from time to time (“the Act“)), where to do so would contravene that Statute or cause any provision of these Terms and Conditions to be void. Nothing in these Terms and Conditions modifies or excludes the conditions, warranties, and undertakings and other legal rights under the Act and other laws. Except as expressly set out in these Terms and Conditions, and the Act, KUMFI makes no warranties or other representations under or in connection with these Terms and Conditions, and KUMFI’s liability in respect thereof, is limited to the fullest extent permitted by law.
- To the extent permitted by law, all implied conditions and warranties are excluded. To the extent that any implied conditions and warranties cannot be excluded, the Customer’s sole and exclusive remedy for any loss or damage, (whether direct, indirect, liquidated, special or consequential and including loss or damage arising as a result of death or personal injury to the Customer or any other person), howsoever arising (including by reason of any breach of contract, condition or warranty (whether express or implied)) is, where permitted at law, limited to any one of the following, as determined by KUMFI:
- In the case of any Goods supplied by KUMFI:
- the replacement of the relevant Goods or supply of equivalent Goods; or
- the repair of the Goods; or
- after prior agreement between KUMFI and the Customer, payment of the cost of replacing or having the Goods replaced or repaired; or
- reimbursement of some or all amounts paid by the Customer in respect of the Goods.
- Goods which are not manufactured by KUMFI are subject solely to the warranties (if any) specified by the manufacturers or the third-party suppliers to KUMFI, and the Customer acknowledges that, to the extent permitted by law, KUMFI gives no warranties beyond such manufacturers or suppliers warranties.
- The Customer acknowledges that KUMFI makes no representations or warranties as to the merchantability, fitness for purpose or suitability for any purpose of any of the Goods.
- KUMFI is not liable for any faults or defects caused by misuse, tampering, incorrect assembly or installation, physical damage or normal wear and tear.
- No sale under these Terms and Conditions of Sale constitutes a sale by sample. The Customer acknowledges that the sample may vary from the Goods that are produced.
- No sale under these Terms and Conditions of Sale constitutes a sale by description. Any description of Goods is by way of identification only.
- Except as required by law, KUMFI is not obliged to accept Goods returned for any reason.
- Subject to the Act and any other legislation, KUMFI is not liable to the Customer for any loss or damage whether direct, indirect, liquidated, special or consequential and including loss or damage arising as a result of death or personal injury, however caused which the Customer or any other person may suffer or incur which may, without limiting the generality of the foregoing, arise directly or indirectly in respect of the Goods, any defects in the Goods and/or of its officers, agents, employees to comply with the Contract or any obligation imposed by law.
- The Customer must notify KUMFI within 7 days of any defect in the Goods of which the Customer becomes aware of and the Customer must take all reasonable steps to mitigate loss arising as a consequence of the defect.
- If the Customer is considered a Consumer, KUMFI’s Goods come with guarantees that cannot be excluded under the Australian Consumer Law. A Consumer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. A Consumer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
- The warranty period for the Goods varies according to the specific warranties provided. In the case of KUMFI Goods, KUMFI will bear the cost of valid warranty claims and the cost of invalid warranty claims shall be borne by the Customer. Any Customer with a warranty or warranty expenses claim must notify the KUMFI Warranty Department at PO Box 306, St Clair, NSW 2759. No warranty claims will be valid without prior authorisation in the form required by KUMFI. Customers must ensure that any Goods being shipped are freight prepaid and insured. Shipping charges are not refundable.
- FORCE MAJEURE
10.1 KUMFI shall not be liable for any failure or delay in supply or delivery of the Goods where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of KUMFI including, but not limited to, war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, civil commotions or accidents of any kind.
11.1 If the Customer fails to comply with any of these Terms and Conditions or being a natural person or persons commits any act of bankruptcy, or being a corporation passes a resolution for winding up or liquidation (other than for the purposes of reorganisation or reconstruction) or administration or enters into any composition or arrangement with creditors of if a receiver or manager or administrator or controller is appointed for any property or assets of the Customer or becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up, or if a liquidator or provisional liquidator or administrator is appointed, KUMFI may, in addition to exercising all or any of its rights against the Customer, suspend any further deliveries and immediately recover possession of any Goods not paid for in accordance with these Terms and Conditions.
- RETURNS AND CANCELLATIONS
12.1 Other than in respect of KUMFI’s obligations pursuant to Clause 9 hereof KUMFI shall not be liable to accept any returned Goods but may in its absolute discretion accept the return of Goods if a request is made in writing to email@example.com, provided that such Goods shall only be accepted for return with the prior written approval of a duly authorised representative of KUMFI. Goods returned for credit pursuant to this Clause will be subject to a handling and administration charge equivalent to 20% of the invoiced value of the returned Goods. Return freight and other expenses will be paid for by the Customer and no returns of special or custom Goods will be accepted. Any returned Goods must be accompanied with a relevant invoice number and/or Return Authorisation Number.
12.2 The Customer may cancel an order for the supply of Goods on credit at any time not less than thirty (30) days from the proposed delivery date of the Goods. The Customer must pay a cancellation fee equivalent to 30% of the value of the Goods to be supplied, and KUMFI is otherwise discharged from its obligations to supply the Goods.
12.3 If an order is cancelled otherwise in accordance with Clause 12, the Customer will be liable for any damages that result from the cancellation, including the full contract price of the Goods and any costs incurred by KUMFI.
- GOVERNING LAW
13.1 The Customer agrees that these Terms and Conditions of Sale shall be construed according to the laws of the State or Territory as KUMFI may in its sole discretion determine. Proceedings by either KUMFI or the Customer may be instituted and/or continued in such State or Territory as KUMFI may in its sole discretion determine. Failing such determination, the Customer consents to any proceedings being instituted and heard by any appropriate Court sitting in the State of New South Wales applying the laws of that State.
- SERVICE OF DOCUMENTS
14.1 The Customer agrees that service of any notices or Court documents may be effected by forwarding same by pre-paid post or facsimile to the last known address of the Customer.
14.2Except where otherwise stated, the Customer must send all notices to PO Box 306, St Clair, NSW 2759 or via e-mail at firstname.lastname@example.org. No notice will be taken to have been given until it is received and acknowledged at KUMFI’s head office.
- STATEMENT OF DEBT
15.1 A certificate signed by a Director, Secretary, Finance Manager or Credit Manager of KUMFI shall be prima facie evidence of the amount of indebtedness of the Customer to KUMFI at that time.
- ELECTRONIC COMMUNICATIONS
16.1 In addition to delivery in person, via post and via facsimile, the customer agrees to have Invoices sent via email.
16.2 The Customer agrees that email communications from KUMFI to the Customer constitute an “electronic communication” within the meaning of the Electronic Transactions Act 2000 (NSW) (“the Act”)
16.3 The Customer agrees that in agreeing to receive invoices and service of notices via email, the Customer is designating “an information system for the purpose of receiving electronic communications” within the meaning of the Act.
16.4 The Customer agrees that evidence of the “dispatch” (within the meaning of the Act) by KUMFI of an email is also prima facie evidence of the “receipt” of the email by the Customer within the meaning of the Act. Unless the contrary is proven the time of receipt will be deemed to be twenty (20) seconds after the time of the “dispatch” of the email.