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Sewing Machines Australia Pty Ltd ABN 43 115 795 198 (“SMA”)

 

  1. General
    1. The whole of the Agreement between SMA and the Customer is as set out in these terms and conditions as amended from time to time and any terms that are implied which cannot be excluded by law (“Terms”).
    2. Any other contractual terms of the Customer that are contrary to or inconsistent with the Terms do not apply nor do they constitute a counter-offer.
    3. By receiving delivery of all or part of the goods or requesting the services that SMA supplies under the Terms (“Goods”), the Customer is deemed to have accepted the Terms and to have agreed that they apply to the exclusion of all others.
    4. All Goods are charged at the price prevailing at the date of invoice which is always subject to fluctuations, availability and other influences outside SMA’s control.
    5. The Customer must pay any applicable Goods and Services Tax within the meaning of the A New Tax System (Goods and Services) Act 1999 (“GST”) or other government imposts.
    6. The Customer warrants that the details provided in any Credit Application are true and accurate at the day of signing and at the date of any subsequent order from SMA.
      1. Where the Customer fails to complete any required information field of the Agreement, the Customer gives SMA authority to insert information or details into this Agreement on behalf of the Customer in accordance with information supplied by the customer or publicly available on a search.
      2. Where any of the Customer information supplied pursuant to this clause becomes outdated or is otherwise incorrect, the Customer gives SMA authority to correct this information or these details on their behalf, and authorise the correction of obvious errors/omissions.
    7. SMA may not be able to secure goods or provide related services in terms of any order or request from the Customer and reserves the right to refuse supply in those circumstances or should it otherwise be unable to provide the goods and/or services as requested.
  2. Goods
    1. SMA has a variety of important notes for customers in regard to the sale and purchase of Goods.
      1. SMA sell nationally within Australia;
      2. SMA sell internationally (conditions apply);
      3. SMA sell Goods only for commercial use;
      4. SMA do not sell Goods for domestic use.
    2. Where applicable, Goods are sold with an instruction manual.
    3. Upon Customer request, SMA will provide telephone or video remote support for the Customer to understand their machine and tools for basic troubleshooting. Remote support may include fault finding and diagnostic assistance. Any direct SMA support required may be preceded by remote support to better understand the situation or condition of the Goods. SMA will advise if any fee is applicable for the remote support.
  3. Payment Terms
    1. A 30% deposit is due at the time an order for Goods is placed. The remaining balance payment is due prior to the order being dispatched/delivered. This deposit is non-refundable for any non-stock (special order) items.
    2. The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a solicitor and own client basis) that SMA incurs for enforcement of obligations and recovery of monies that the Customer owes SMA.
  4. Delivery & Supply
    1. Any times quoted for delivery are estimates only. SMA will not be liable for failure to deliver, or for delay in delivery. The Customer will not be relieved of any obligation to accept or pay for goods, by reason of any delay in delivery or dispatch. SMA reserves the right to stop supply at any time if the Customer fails to comply with these Terms.
    2. The Customer is deemed to accept the Goods supplied either by collecting the Goods from SMA or on accepting delivery of the Goods from SMA. Such collection or delivery may be direct to the Customer or to a third party or at an address nominated by the Customer.
    3. SMA will investigate any claims relating to defective Goods and which are made by the Customer to SMA within seven (7) days of the Customer receiving the Goods.
    4. SMA will ensure that all Goods prepared for transportation will be properly packaged to reasonably protect the Goods during transit.
  5. Billing
    1. The Customer must pay to SMA the amount of each invoice in accordance with the terms of such invoice and upon remittance must not make any deductions from, or setoffs against the invoice amount for any reason whatsoever, unless SMA has issued a valid credit note.
    2. Further or alternatively, the Customer must not withhold or delay any payment due to SMA for any reason whatsoever, including but not limited to the amount of any claim which the Customer alleges that SMA has against SMA or any money that SMA owes the Customer.
    3. Dishonoured cheques will incur a $20 handling charge.
    4. Overdue accounts with incur a $50 fee. An account will be deemed overdue after ????
  6. Retention of Title
    1. Until full payment has been made for all Goods and any other sums in any way outstanding from the Customer to SMA from time to time:
      1. All sums outstanding by the Customer to SMA become immediately due and payable if the Customer:
        1. defaults in paying any other sums due to SMA; or
        2. becomes bankrupt, or commits any act of bankruptcy, or a creditor of the Customer has judgment entered against the Customer in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, despite the provisions of any other clause in the Terms;
      2. Ownership of the Goods does not pass to the Customer and the Customer will hold the Goods as bailee for SMA (returning them to SMA on request). The Goods are at the Customer’s risk from the time of delivery and the Customer must insure the Goods from the time of delivery;
      3. All payments received from third parties by the Customer for the Goods must be held on trust for SMA pursuant to the Bailee/Bailor relationship, and any book debts of the Customer relating to the proceeds of sale of Goods, and the proceeds of any insurance on the Goods are also held on trust for SMA; and
      4. SMA (including SMA’s nominated agent) is irrevocably authorised to enter any premises where the Goods are kept, and to use the Customer’s name and to act on the Customer’s behalf, if necessary, to recover possession of the Goods.
      5. In the event that the Goods are fixed to land, converting the Goods from good to a fixture of the land, and the Customer is paid for the Goods, the Customer acknowledges and agrees that those payments will be separately recorded and retained on trust for SMA. SMA is entitled to and can claim any proceeds the Customer is entitled to or has received from the third party who has provided the proceeds or is obligated to provide the Customer.
  7. Cancellations
    1. No cancellations or partial cancellation of an order by the Customer is effective unless SMA has agreed in writing to the cancellation request. Cancellations are subject to a re-stocking fee of $25 or 15% of the value of the Goods cancelled, whichever is greater. Cancellation will not be accepted on Goods that are not regular stock and which are in the process of manufacture or are ready for shipment.
  8. Returns
    1. SMA will accept Goods returned only within 30 days from the date of purchase. The Customer is responsible for all damage incurred during return shipment. All returns must be sent to SMA to the address advised by SMA.
    2. SMA will organise a pickup of any mis-shipped Goods. All freight costs for mis- shipped Goods will be paid by SMA.
    3. Returns are subject to a re-stocking fee of 30% of the value of the Goods cancelled.
    4. The return of non-stock (special order) items will result in the 30% deposit being forfeited by the Customer.
  9. Lost, Incomplete or Damaged Goods
    1. The Customer must submit to SMA in writing any complaint, claim, or notification of lost Goods, incomplete Goods, or Goods damaged in transit within seven (7) days of the date of the invoice rendered for the Goods. Otherwise, the Customer is deemed to have accepted the Goods and cannot refuse to pay for the Goods on the basis that they were lost, incomplete, or damaged in transit.
  10. Privacy Act 1988 (“Privacy Act”)
    1. To enable SMA to assess the Customer’s application for credit, the Customer authorises SMA:
      1. to obtain from a credit reporting agency a credit report containing personal information about the Customer and the Customer’s guarantors pursuant to Section 20F of the Privacy Act (Cth); and
      2. to obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities.
    2. In accordance with sections 21G, 21H, 21K, 21L, 21M & 21N of the Privacy Act (Cth) the Customer authorises SMA to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements. The Customer understands that this information can include any information about the Customer’s credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act (Cth).
    3. The Customer understands the information can be used for the purposes of assessing the Customer’s application for credit, notifying other credit providers of a default by the Customer and assessing the Customer’s credit worthiness.
  11. Notification
    1. The Customer must notify SMA in writing within seven days of:
      1. any alteration or change of ownership of the Customer’s business, business name or company. The Customer agrees that the Customer is liable to SMA for all Goods that SMA supplies to the new owner of the Customer’s business or company name until notice of any such change is received;
      2. the issue of any legal proceedings against the Customer; or
      3. the appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
    2. If there is a change of ownership, SMA reserves the right not to supply the new owner and to terminate this agreement immediately by notice in writing.
  12. Warranties
    1. SMA provide the following warranty periods:
      1. 12 month manufacturers defect warranty on Goods;
      2. 6 month warranty on the Portable Bag Closers and Fabric Cutters; and
      3. 3 month labour warranty on Goods serviced by SMA.
    2. The Customer must contact SMA and return the item to SMA. SMA will examine the item within 7 days of it being returned and will advise the Customer if the item is covered under warranty.
    3. All warranty labour is onsite within a 30 kilometre radius of the Brisbane CBD. If a Customer is outside the 30 kilometre radius from Brisbane CBD, the Customer must either return the Goods to SMA or pay the travel costs of SMA’s service technician associated with travel to perform the requested service.
    4. The Customer will pay for the freight and insurance for any Goods returned to SMA for warranty assessment and repair.
    5. SMA’s liability for defective goods is limited to replacing them or at SMA’s option refunding the price of the defective goods if:
      1. defects have arisen solely from faulty materials or workmanship; or
      2. the goods have not received maltreatment, inattention or interference; and
      3. notice of the defects is given to SMA within 30 days of delivery to the Customer.
    6. Consumable Goods are not covered by warranty. These include but are not limited to oil, needles, knives, filters, belts and screws.
    7. SMA’s liability for breach of a condition or guarantee implied by Division 1 of Part 3-2, Schedule 3 of the Competition and Consumer Act 2010 (Cth) is limited to:
      1. in the case of goods, any one of the following as determined by SMA:
        1. the replacement of the goods or the supply of equivalent goods; or
        2. the repair of the goods; or
        3. the payment of the cost of replacing the goods or of acquiring equivalent goods;
      2. in the case of services, any one of the following as determined by SMA:
        1. the supplying of the services again; or
        2. the payment of the cost of having the services supplied again.
    8. SMA’s liability under section 274 of the
    9. Competition and Consumer Act 2010 (Cth) is expressly limited to a liability to pay to the Customer an amount equal to:
      1. the cost of replacing the goods; or
      2. the cost of obtaining equivalent goods; or
      3. the cost of having the goods repaired, whichever is the lowest amount.
    10. Should the Sale of Goods Act 1896 (Qld) (or similar legislation in another jurisdiction) apply, the Customer and SMA agree under s. 56 of that Act to specifically exclude any warranties or other terms which might be implied into the Terms by that Act or any similar obligation imposed in other legislation. Such exclusion will be to the fullest extent allowed by law.
    11. In respect of any other law in Australia which applies to the Terms, SMA gives no conditions or warranties in respect of goods or services supplied except those that are implied and which cannot be excluded by law.
    12. In no event shall SMA be liable for any special, indirect, incidental, exemplary, consequential or punitive damages whatsoever including, but not limited to loss of business profits even if SMA is advised or should be aware of the possibility of such damage or loss. The liability of SMA, whether in contract, tort or any other warranty shall not extend beyond the limited warranties in these Terms of Trade.
  13. Failure to Act
    1. The following does not constitute a waiver of any subsequent default or a waiver of SMA’s right to demand timely payment of future obligations or strict compliance with the Terms:
      1. SMA’s failure to enforce or insist upon the timely performance of any term, condition, covenant or provision under this Agreement; or
      2. SMA’s failure to exercise any right or remedy available under the Terms or at law; or
      3. SMA’s failure to insist upon timely payment of monies when due or to demand the payment of any charges or fees which accrue or any extension of credit or forbearance during the term of this agreement.
  14. Installation
    1. Any installation or assistance to the Customer by SMA, the Customer is on the basis that:
      1. The Customer will be responsible for supervising any work done by SMA in installation of products and provide all reasonable site and situation information (when mounting Goods) together with access, materials, and support from appropriately skilled and qualified staff.
      2. SMA is not liable for any damage caused by SMA’s employees and agents that occurring during or because of the installation to any property or persons.
      3. No warranty as to the quality of the workmanship is provided.
  15. Labour/Service
    1. SMA services all brands of machines both onsite and offsite.
    2. SMA offer a 7 day onsite warranty on any work we do within 30 kilometre radius of the Brisbane CBD. If outside the 30-kilometre radius the Goods must be returned to SMA for investigation and repair or travel time must be paid for the service technician conducting the repair.
    3. Full payment must be made once labour/service job is completed by the SMA technician.
      1. If parts are required to be ordered to ensure the job can be completed, payment of the parts must be paid for upon the order being placed by SMA.
      2. If the Customer has a change of mind regarding the required labour/service whilst waiting on the required parts, this will be accepted by SMA.
    4. Travel time for all labour/service work is recorded and charged in 15 minute increments.
  16. Legal Construction
    1. The Terms are governed and interpreted according to the laws of Queensland and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Queensland.
    2. If any provision of the Terms is held to be illegal or unenforceable, that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms will continue in full force and effect.