Terms and Conditions for Wholesale Customers
TERMS & CONDITIONS OF TRADE (Effective 11/2007)
To the fullest extent legally possible, all dealings between M.A XANTHOS & M.E XANTHOS T/A Aqua Zoi (ABN: 72614621690) and any customer (“Customer”) relating to any goods or services are subject to the following Terms and Conditions of Trade (“these Terms”) unless otherwise agreed in writing.
1. Payments
a) Payment is due within 30 days of invoice date, without deduction or set-off.
b) Aqua Zoi may apply received payments to any outstanding amounts (including interest, part payment, admin, collection, or other costs) in any order.
c) Aqua Zoi is entitled to set off or deduct any amount payable to the Customer.
2. Interest on Overdue Accounts
Interest will be charged on overdue accounts at the rate prescribed under the Penalty Interest Rates Act 1983 (Vic), plus 3%. A monthly administration fee of $25 applies.
3. Retention of Title
a) Ownership of goods remains with Aqua Zoi until full payment has been received for all outstanding amounts.
b) Aqua Zoi reserves the right to reclaim and dispose of goods at its discretion until full payment is made. The Customer grants access for this purpose.
c) Liability for goods passes to the Customer upon delivery.
d) A certificate from an Aqua Zoi officer confirming goods and amounts owed is conclusive evidence of title.
e) Proceeds from resale of goods prior to full payment are to be held on trust in a separate bank account for Aqua Zoi.
f) Until paid in full, goods must be stored clearly as property of Aqua Zoi and only sold in the usual course of business.
g) Clause 3 is not intended to create a charge.
h) If goods are incorporated into other products, proceeds of sale equivalent to Aqua Zoi’s invoiced value must be held on trust until full payment.
4. Limitation of Liability
a) Aqua Zoi’s liability is limited to replacement or re-supply of goods/services.
b) Claims must be made within 7 days of delivery or service.
c) Aqua Zoi is not liable for any indirect, consequential, or special damages.
d) No other warranties or representations apply unless expressly agreed.
e) Aqua Zoi accepts no liability for product defects arising from third-party or customer contributions.
5. Returns
a) Goods returned (if accepted) must be in new, saleable condition and are subject to a 15% restocking fee.
b) Any goods which are accepted by Aqua Zoi as defective may be returned & will be replaced free of charge or be the subject of a credit for the invoiced value. "Free of charge" does not include labour, transport or material costs.
c) Custom made or custom processed goods or goods acquired by Aqua Zoi specifically for the Customer will not be returnable
6. Specific Orders
Custom or Customer-specific orders may be declined unless accompanied by a 50% non-refundable deposit.
7. Order Placement
a) if any dispute arises concerning any order (& including any measurement quality quantity identity or authority or any telephone facsimile e-mail or computer generated order) the internal records of Aqua Zoi will be conclusive evidence of what was ordered
b) each order placed shall be & be deemed to be a representation made by the Customer at the time that it is solvent & able to pay all of its debts as & when they fall due
c) failure to pay in accordance with these Terms shall be & be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 7.b) & that the representations were unconscionable, misleading & deceptive d) when any order is placed, the Customer shall inform Aqua Zoi of any material facts which would or might reasonably affect the commercial decision by Aqua Zoi to accept the order &/or grant credit in relation thereto. Any failure to do so shall create & be deemed to create an inequality of bargaining position shall constitute & be deemed to constitute the taking of an unfair advantage of Aqua Zoi & to be unconscionable, misleading & deceptive.
8. Delivery
a) Aqua Zoi accepts no responsibility for delivery but may elect to arrange delivery at its discretion & without any liability & at the Customer's costs & responsibility in all things
b) Aqua Zoi reserves the right to charge for any delivery
c) the Customer shall be deemed to have accepted delivery & liability for the goods immediately Aqua Zoi notifies that they are ready for collection or when they are delivered to a carrier or to the Customer's business premises or site whether attended or not
d) a certificate purporting to be signed by an officer of Aqua Zoi confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket
e) Aqua Zoi will not be liable for delay, failure or inability to deliver any goods
f) once the Customer has been notified that goods are ready for collection, the Customer agrees to pay all costs of holding or handling goods
g) Frustrated Delivery: If time spent delivering exceeds 30 minutes or requires more than one attempt, the Customer agrees to pay all costs relating thereto plus a loading of 10% to cover administration costs.
9. Order Variation/Cancellation
Must be agreed upon in writing.
10. Exclusions
a) No sale by sample or description applies unless agreed.
b) Inconsistencies between marketing and these Terms are excluded.
c) Customers are responsible for product selection.
d) Advice from Aqua Zoi is not professional advice and is used at the Customer’s risk.
11. On-Sale Obligations
Customer must pass on these Terms, particularly Clause 3 and 3(h), to any third party on-selling Aqua Zoi goods.
12. Severability
Invalid clauses may be severed without affecting the remainder.
13. Stock Allocation
Aqua Zoi reserves the right to allocate stock at its discretion and does not guarantee as to certainty of supply unless expressly agreed in writing in advance.
14. Pricing
a) Orders are invoiced at prices ruling at the time of delivery.
b) All prices exclude GST and other government charges unless stated.
c) Imposts are the Customer’s responsibility.
15. Breach & Default
If the Customer breaches these Terms: by the Customer of these Terms or in any dealings with Aqua Zoi will entitle Aqua Zoi to retain all monies paid, call-up all monies due or owing (whether currently due & owing or not), cease further deliveries & recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms or at law.
16. Product Testing
a) Aqua Zoi disclaims liability regarding colour, suitability, or application.
b) The Customer is responsible for testing prior to use or resale.
c) All applicable laws, regulations, and usage guidelines must be followed.
d) Aqua Zoi may modify goods or components as required.
e) Aqua Zoi disclaims liability for misuse or customer-specified inputs.
17. External Terms
Customer-imposed terms are invalid unless agreed in writing. The Customer is deemed to accept changes to these Terms upon publication by Aqua Zoi.
18. Recovery Costs
The Customer agrees to cover all Aqua Zoi recovery, legal, and administration costs relating to breaches.
19. Legal Authority
Customer irrevocably appoints Aqua Zoi’s solicitor as their attorney for enforcement purposes.
20. Structural Changes
Customer must notify Aqua Zoi of structural or management changes within 7 days.
21. Jurisdiction
All dealings are governed by Victorian law. Parties submit to the jurisdiction of Melbourne courts.
22. Credit Facility
Aqua Zoi may revise or revoke credit limits at any time without liability.
23. Waiver
Failure to enforce rights does not waive Aqua Zoi’s entitlement to enforce future breaches.
24. Security for Payment
a) The Customer agrees, on request, to provide security over assets in Aqua Zoi’s favour.
b) Aqua Zoi has a lien over Customer property in its possession until full payment is made.
25. Force Majeure
Aqua Zoi is not liable for failure to fulfil obligations due to causes beyond its control.
26. Exports
Exports are governed solely by these Terms. International conventions are excluded.
27. Intellectual Property
a) Customer indemnifies Aqua Zoi for use of customer-supplied IP or designs.
b) Aqua Zoi’s IP may not be used without prior written consent.
c) Breaches may result in third-party claims; Customer is liable.
28. Discounts
a) Discounts are discretionary and not valid if the Customer is in breach.
b) Early payment discounts, if any, are specified on invoices.
29. Specifications
a) Any specifications provided are indicative only.
b) IP remains the property of Aqua Zoi and may be recalled.
c) Specifications are confidential.
30. Set-Off
Customer may not offset or withhold payments until all bona fide invoices are paid in full.
31. Insolvency
Insolvency (e.g., liquidation, administration, non-payment) will be deemed a default.
32. Partial Delivery
Customer must pay for partial deliveries. Non-fulfilment of an order does not permit cancellation.
33. Quantity Variations
The Customer accepts up to 20% under-delivery and agrees to pay pro-rata.
34. Indemnity
The Customer indemnifies Aqua Zoi for all claims or losses related to the Customer’s dealings with Aqua Zoi.
