Terms and Conditions
In these Terms and Conditions “we, our, us, Dance4me Pty Ltd T/A X-POLE Australia ” refers to “Dance4me Pty Ltd”, “x-pole.com.au, dance4me.com.au, www.dance4me.com.au, the Website” refers to “www.xpole.com.au”.
1.1 “X-POLE Australia” means Dance4me Pty Limited T/A X-POLE Australia, its successors and assigns or any person acting on behalf of and with the authority of Dance4me Pty Limited T/A X-POLE Australia.
1.2 “Customer” means the person/s buying the Goods, end user (where applicable), and/or any approved re-seller for the purposes of re-supply as specified in any invoice, document or order, or hiring Equipment, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by X-POLE Australia to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between X-POLE Australia and the Customer in accordance with clause 5 below.
1.5 “GST” means Goods and Services Tax 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 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and X-POLE Australia.
2.3 Any instructions received by X-POLE Australia from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by X-POLE Australia shall constitute acceptance of the terms and conditions contained herein.
2.4 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on the Service Provider’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
2.5 These terms and conditions may be meant to be read in conjunction with X-POLE Australia’s Hire Form, and:
(a) where the context so permits, the terms ‘Goods’ or ‘Services’ shall include any supply of Equipment, as defined therein; and
(b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
2.6 Goods are supplied by X-POLE Australia only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
2.7 The Customer acknowledges and accepts that any warranty provided by X-POLE Australia is non-transferable.
2.8 Where the Customer is to return Goods to X-POLE Australia’s repair centre, the Customer shall bear the costs of returning the Goods unless otherwise agreed by X-POLE Australia.
2.9 The Customer shall direct any technical question to X-POLE Australia’s Customer Service Department: X-POLE Australia Australia, PO Box 253, Oyster Bay, NSW 2225, Australia or telephone +61 (02) 9589 2645.
2.10 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3 Online Ordering
3.1 The Customer acknowledges and agrees that:
(a) X-POLE Australia does not guarantee the website’s performance or availability of any of its Goods; and
(b) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and
(c) there are inherent hazards in electronic distribution and as such X-POLE Australia cannot warrant against delays or errors in transmitting data between the Customer and X-POLE Australia including orders, and you agree that to the maximum extent permitted by law, X-POLE Australia will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders.
3.2 X-POLE Australia reserves the right to terminate your order if it learns that you have provided false or misleading information, interfered with other users or the administration of X-POLE Australia’s Services, or violated these terms and conditions.
4. Change in Control
4.1 The Customer shall give X-POLE Australia not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by X-POLE Australia as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At X-POLE Australia’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by X-POLE Australia to the Customer; or
(b) the Price as at the date of delivery of the Goods according to X-POLE Australia’s published price list; or
(c) X-POLE Australia’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days and subject to stock-on-hand levels.
5.2 X-POLE Australia reserves the right to change the Price if a variation to X-POLE Australia’s quotation is requested. Variations will be charged for on the basis of X-POLE Australia’s quotation, and will be detailed in writing, and shown as variations on X-POLE Australia’s invoice. The Customer shall be required to respond to any variation submitted by X-POLE Australia within ten (10) working days. Failure to do so will entitle X-POLE Australia to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.3 At X-POLE Australia’s sole discretion, a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by X-POLE Australia, which may be:
(a) before delivery of the Goods;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) for approved wholesale accounts, payment shall be due thirty (30) days following the date of any invoice given to the Customer by X-POLE Australia.
5.5 Payment may be made by credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and X-POLE Australia.
5.6 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 X-POLE Australia nor to withhold payment of any invoice because part of that invoice is in dispute.
5.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
6. Delivery of Goods
6.1 The Customer acknowledges and agrees that X-POLE Australia will not deliver any Goods to a PO Box address.
6.2 Delivery of the Goods shall take place when the Goods have been delivered by X-POLE Australia or X-POLE Australia’s nominated carrier to the nominated delivery address in accordance with clause 6.4 below.
6.3 At X-POLE Australia’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Customer’s account.
6.4 Where it is arranged that X-POLE Australia’s nominated carrier is to deliver the Goods then the Customer shall need to choose one of two following delivery options. Either:
(a) the Customer shall pay for a premium delivery service whereby delivery of the Goods shall only be deemed to have taken place when X-POLE Australia’s carrier delivers the Goods to the nominated delivery address and the Customer (or their nominated agent) has physically signed for the delivery; or
(b) it shall be the Customer’s express responsibility to make all necessary arrangements to ensure that they (or a third party acting their behalf) is able to take delivery of the Goods whenever they are tendered for delivery by X-POLE Australia’s carrier. Where this option (b) is chosen as the preferred delivery method then the Customer expressly acknowledges and agrees that if no person is there to receive the Goods when they are tendered for delivery that X-POLE Australia’s carrier may (at the Customers sole risk) leave the Goods at the delivery address nominated, and that the Customer shall not be entitled to make any claim against either the carrier or X-POLE Australia for any subsequent loss of, or damage to, those Goods.
6.5 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 contract.
6.6 X-POLE Australia may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.7 Any Goods on back-order may be delivered at a later date.
6.8 If delivery is delayed as a consequence of the Customer’s instructions, or lack thereof, then X-POLE Australia may at is sole discretion, store the Goods for the Customer and the Customer shall be liable for all storage costs charged or incurred by X-POLE Australia and in the event that the Goods are stored elsewhere all cartage charges incurred by X-POLE Australia.
6.9 The failure of X-POLE Australia to deliver shall not entitle either party to treat this contract as repudiated.
6.10 X-POLE Australia shall not be liable for any loss or damage whatsoever due to failure by X-POLE Australia to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of X-POLE Australia.
6.11 General delivery of Goods takes between seven (7) to ten (10) working days. If the Goods have not been received by the Customer after this time frame, then the Customer should contact X-POLE Australia immediately.
6.12 Any time specified by X-POLE Australia 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. X-POLE Australia 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 X-POLE Australia shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.1 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.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, X-POLE Australia is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by X-POLE Australia is sufficient evidence of X-POLE Australia’s rights to receive the insurance proceeds without the need for any person dealing with X-POLE Australia to make further enquiries.
7.3 If the Customer requests X-POLE Australia to leave Goods outside X-POLE Australia’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.
7.4 Where X-POLE Australia gives advice, recommendations, information, assistance or service to the Customer or the Customers agent, regarding the Goods or Services then it is given in good faith and X-POLE Australia shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Customer relying on the same.
7.5 The Customer acknowledges and agrees it is their responsibility to accurately measure the ceiling length so that the correct sized Goods are ordered and delivered to the Customer. In the event the Customer requires an extension on the Goods, this will be charged as a variation to the Price as per clause 5.2.
7.6 In the event the Customer wants to purchase Goods for use in a commercial manner, the Customer must first obtain written approval or consent from X-POLE Australia. Approval may be granted or withheld by X-POLE Australia for any reason and may be subject to further Terms and Conditions. In the event the product is to be used for commercial purposes, the Customer warrants to X-POLE Australia that:
(a) only trained, professional pole dancers will use the Goods; and
(b) the Goods will at all times be adequately supervised and regulated; and
(c) the Customer or any other person using the Goods hereby indemnifies X-POLE Australia against any injury, loss or damage. This waiver should be construed as a risk warning and is given as a risk warning in accordance with the provision of the Civil Liability Act 2002 (NSW). Pole Dancing is a recreational activity that involves an obvious risk of physical harm.
7.7 The Customer acknowledges and agrees that as with any removable portable pole that relies on pressure between the floor and ceiling to keep it stable, damage can occur to the floor or ceiling. X-POLE Australia shall not be held responsible for any damage caused to floors or ceilings in relation to installing or using the Goods.
7.8 X-POLE Australia shall not be held responsible for any damage to property or injury to persons or third party during the installation or use of the Goods.
7.9 In the event of floor to ceiling poles that require pressure to stay in place, then the Customer acknowledges and agrees that the Goods cannot be installed using false, suspended or non-rigid ceilings. The Customer further agrees that most ceilings, whether plasterboard or lather and plaster will flex with pressure, and therefore the retaining nails, pins and screws can be pushed out of the plasterboard when pressure is applied by the pole adjuster and X-POLE Australia shall not be held liable for any damage caused as a result of this.
7.10 The Customer warrants to X-POLE Australia that every person that uses the Goods or intends to use the Goods:
(a) has the required level of physical fitness to use the Goods; and
(b) will not use the Goods while they are under the influence of any drug which impairs capacity including alcohol, pharmaceutical preparations or any other substance; and
(c) have read the Product Instructions prior to assembly; and
(d) will comply with the Product Instructions and the safety precautions contained therein; and
(e) will lift, carry, install and use the Goods at their own risk; and
(f) will not use the multi-piece removable pole above the maximum recommended height of one hundred and thirty-two inches (132”), eleven foot (11’) or three thousand three hundred and fifty millimetres (3350mm); and
(g) is capable of making the above statements and
(h) waives and releases any and all claims whatsoever to the fullest extent to the law whether for personal injury, damage, losses and/or death which may result from the use of the Goods.
7.11 The Customer acknowledges and agrees that X-POLE Australia’s website may contain hyperlinks to websites operated by other parties. X-POLE Australia may provide third parties with products to sell or promotional materials to promote their Goods. X-POLE Australia do not control such websites or third party promotions/activities and shall take no responsibility for, and will not incur any liability in respect of their activities. X-POLE Australia’s inclusion of such hyperlinks to any websites or third party contacts does not imply any endorsement of views, statements or information contained in such websites/promotions.
7.12 The Customer accepts and acknowledges that the Goods supplied by X-POLE Australia are designed for indoor use. Any damage to the Goods from being used outside may void any applicable warranty pertaining to the Goods under clause 11.
8.1 X-POLE Australia and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid X-POLE Australia all amounts owing to X-POLE Australia; and
(b) the Customer has met all of its other obligations to X-POLE Australia.
8.2 Receipt by X-POLE Australia of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
8.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 8.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to X-POLE Australia on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for X-POLE Australia and must pay to X-POLE Australia the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) X-POLE Australia shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) 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 X-POLE Australia and must pay or deliver the proceeds to X-POLE Australia on demand.
(e) 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 X-POLE Australia and must sell, dispose of or return the resulting product to X-POLE Australia as it so directs.
(f) the Customer irrevocably authorises X-POLE Australia to enter any premises where X-POLE Australia believes the Goods are kept and recover possession of the Goods.
(g) X-POLE Australia may recover possession of any Goods in transit whether or not delivery has occurred.
(h) 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 X-POLE Australia.
(i) X-POLE Australia may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 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 X-POLE Australia for Services – that have previously been supplied and that will be supplied in the future by X-POLE Australia to the Customer.
9.3 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 X-POLE Australia may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, X-POLE Australia 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 X-POLE Australia;
(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 X-POLE Australia;
(e) immediately advise X-POLE Australia 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.
9.4 X-POLE Australia 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.
9.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by X-POLE Australia, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Customer must unconditionally ratify any actions taken by X-POLE Australia under clauses 9.3 to 9.5.
9.9 Subject to any express provisions to the contrary (including those contained in this clause 9), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10. Security and Charge
10.1 In consideration of X-POLE Australia 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).
10.2 The Customer indemnifies X-POLE Australia from and against all X-POLE Australia’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising X-POLE Australia’s rights under this clause.
10.3 The Customer irrevocably appoints X-POLE Australia and each director of X-POLE Australia as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.
11. Warranties and Returns, Competition and Consumer Act 2010 (CCA)
11.1 The Customer acknowledges and accepts that due to the manufacturing process that small imperfections to the aesthetic appearance may occur and shall not be considered a defect. Where Goods fall within such guidelines, all associated costs with inspection of the Goods shall be borne by the Customer (including, but not limited to repackaging and/or return freight costs).
11.2 The Customer must inspect the Goods immediately on delivery and must within forty-eight (48) hours of delivery notify X-POLE Australia 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 X-POLE Australia and/or X-POLE Australia’s approved reseller to inspect the Goods.
11.3 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).
11.4 X-POLE Australia acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
11.5 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, X-POLE Australia makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. X-POLE Australia’s liability in respect of these warranties is limited to the fullest extent permitted by law.
11.6 If the Customer is a consumer within the meaning of the CCA, X-POLE Australia’s liability is limited to the extent permitted by section 64A of Schedule 2.
11.7 If X-POLE Australia is required to replace the Goods under this clause or the CCA, but is unable to do so, X-POLE Australia may refund any money the Customer has paid for the Goods.
11.8 If the Customer is not a consumer within the meaning of the CCA, X-POLE Australia’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty as specified in the “Warranty against Defects” documentation provided to the Customer by X-POLE Australia in respect of the Goods supplied from the date of order in accordance with clause 6 of X-POLE Australia’s Terms and Conditions of Trade and at X-POLE Australia’s sole discretion any expressed warranty will cease subject to:
(i) eighteen (18) months for new Goods; or
(ii) three (3) months for second hand or ex-demonstration Goods; or
(iii) as otherwise specified; and
(iv) any general warranty conditions which are also available via X-POLE Australia’s website.
(b) limited to the value of any warranty card provided to the Customer by X-POLE Australia at X-POLE Australia’s sole discretion;
(c) limited to any warranty to which X-POLE Australia is entitled, if X-POLE Australia did not manufacture the Goods;
(d) otherwise negated absolutely.
11.9 Subject to this clause 11, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 11.1; and
(b) X-POLE Australia has agreed that the Goods are defective; and
(c) the Goods are returned within fourteen (14 days at the Customer’s cost (if that cost is not significant);
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible; and
(e) in the original packaging materials, brochures and instruction material.
11.10 Notwithstanding clauses 11.1 to 11.9 but subject to the CCA, X-POLE Australia 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) any damage owing to the Goods owing to environmental conditions such as humidity, rain, dirt, pitting or rusting from exposure to salt, minerals, sun, sand or other environmental factors;
(c) the Customer using the Goods for any purpose other than that for which they were designed;
(d) 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;
(e) the Customer failing to follow any instructions or guidelines provided by X-POLE Australia;
(f) any misuse, abuse, unauthorised repair, improper handling or common damage resulting from extreme force such as bowing or bending;
(g) cleaning the Goods with products other than Metho or acetone (including but not limited to, soap, Brasso, water or any other spray cleaner);
(h) fair wear and tear including cosmetic wear, any accident, or act of God.
11.11 Subject to clause 11.10,in relation to ex-demonstration and 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, either:
(a) prior to delivery; or
(b) upon delivery for online orders and must within forty-eight (48) hours of said delivery notify X-POLE Australia in writing of any evident defect/damage; and
(c) X-POLE Australia warrants that if any subsequent defect becomes apparent and is reported to X-POLE Australia within the specified time as per sub-clause 11.8(a)(ii) (time being of the essence) then X-POLE Australia will either (at X-POLE Australia’s sole discretion) replace or repair the Goods.
11.12 X-POLE Australia may in its absolute discretion accept non-defective Goods for return in which caseX-POLE Australia may require the Customer topay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
11.13 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
11.14 X-POLE Australia will not accept the return of any DVD’s unless they are defective and comply with the provisions of clause 11.1.
11.15 Notwithstanding anything contained in this clause if X-POLE Australia is required by a law to accept a return then X-POLE Australia will only accept a return on the conditions imposed by that law.
12. Intellectual Property
12.1 Where X-POLE Australia has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of X-POLE Australia. Under no circumstances may such designs, drawings and documents be used without the express written approval of X-POLE Australia.
12.2 The Customer agrees that X-POLE Australia may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which X-POLE Australia has created for the Customer.
12.3 In the event X-POLE Australia gives approval in writing for the Customer to use any imagery derived from products, materials, websites, CD Roms, DVDs, movies, books and any other materials then X-POLE Australia logo must be clearly visible.
12.4 In the event the Customer uses any pictures of dancers then the Customer acknowledges and agrees that the dancer’s names must be credited. The Customer agrees they shall contact X-POLE Australia in this instance to obtain the pictures or the details.
13. Default and Consequences of Default
13.1 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 X-POLE Australia’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Customer owes X-POLE Australia any money the Customer shall indemnify X-POLE Australia from and against all costs and disbursements incurred by X-POLE Australia in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, X-POLE Australia’s contract default fee, and bank dishonour fees).
13.3 Further to any other rights or remedies X-POLE Australia may have under this contract, if a Customer has made payment to X-POLE Australia, 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 X-POLE Australia under this clause 13 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.
13.4 Without prejudice to X-POLE Australia’s other remedies at law X-POLE Australia shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to X-POLE Australia shall, whether or not due for payment, become immediately payable if:
(a) any money payable to X-POLE Australia becomes overdue, or in X-POLE Australia’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 X-POLE Australia;
(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 Customer.
14.1 Without prejudice to any other remedies X-POLE Australia may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions X-POLE Australia may suspend or terminate the supply of Goods to the Customer. X-POLE Australia will not be liable to the Customer for any loss or damage the Customer suffers because X-POLE Australia has exercised its rights under this clause.
14.2 X-POLE Australia 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 X-POLE Australia shall repay to the Customer any money paid by the Customer for the Goods. X-POLE Australia shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.3 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 X-POLE Australia as a direct result of the cancellation (including, but not limited to, any loss of profits). Where the cancellation occurs after the Goods have been dispatched to the Customer, the Customer shall be liable for all associated costs in the return of the Goods to X-POLE Australia. Should the Goods be damaged during such return to X-POLE Australia, then X-POLE Australia shall retain the payment for the Goods paid by the Customer to cover the costs of the Goods. The Customer acknowledges and accepts that all freight costs are non-refundable as they are paid to a third party.
14.4 Cancellation of orders for Goods made or ordered 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.
15. Privacy Act 1988
15.1 The Customer agrees for X-POLE Australia to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by X-POLE Australia.
15.2 The Customer agrees that X-POLE Australia may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(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 providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
15.3 The Customer consents to X-POLE Australia being given a consumer credit report to collect overdue payment on commercial credit.
15.4 The Customer agrees that personal credit information provided may be used and retained by X-POLE Australia for the following purposes (and for other agreed purposes or required by):
(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 Goods.
15.5 X-POLE Australia may give information about the Customer to a CRB for the following purposes:
(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.
15.6 The information given to the CRB may include:
(a) personal information as outlined in 15.1 above;
(b) name of the credit provider and that X-POLE Australia 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 X-POLE Australia has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of X-POLE Australia, 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).
15.7 The Customer shall have the right to request (by e-mail) from X-POLE Australia:
(a) a copy of the information about the Customer retained by X-POLE Australia and the right to request that X-POLE Australia correct any incorrect information; and
(b) that X-POLE Australia does not disclose any personal information about the Customer for the purpose of direct marketing.
15.8 X-POLE Australia 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.
15.9 The Customer can make a privacy complaint by contacting X-POLE Australia via e-mail. X-POLE Australia 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.
16. Service of Notices
16.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
16.2 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.
17.1 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.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which X-POLE Australia has its principal place of business, and are subject to the jurisdiction of the courts in New South Wales.
17.3 Subject to clause 11,X-POLE Australia 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 X-POLE Australia of these terms and conditions (alternatively X-POLE Australia’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
17.4 X-POLE Australia may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
17.5 The Customer cannot licence or assign without the written approval of X-POLE Australia.
17.6 X-POLE Australia 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 X-POLE Australia’s sub-contractors without the authority of X-POLE Australia.
17.7 The Customer agrees that X-POLE Australia may amend these 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 X-POLE Australia to provide Goods to the Customer.
17.8 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.
17.9 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 them.