(vi) "Security Agreement" means the security agreement under the PPSA created between us and you by these terms and conditions;

(vii) "Security Interest" has the same meaning as under the PPSA.  

(b) Upon agreeing to these terms and conditions, you acknowledge that these terms and conditions are a Security Agreement and create a PMSI and other Security Interests in our favour.

(c) To the extent permitted by the PPSA, we take a PMSI in all Products previously supplied to you by us (if any) and in any and all Products that will be supplied in the future by us to you, failing which we take a Security Interest in such Products.  

(d) The Security Agreement is a continuing security and will operate irrespective of any intervening payment or settlement of account until we have signed a release.

(e) You must inform your creditors of the terms upon which you buy the Products from us including that we may create and register a PMSI over the Products, and you must also inform any of your trustees in bankruptcy or liquidators, or any receiver of your business or assets, of our rights and title to the proceeds from the sale of the Products.  

(f) You undertake to:

(i) 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 we may reasonably require to:

(A) register a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPSR;

(B) register any other document required to be registered by the PPSA; or

(C) correct a defect in a statement referred to in paragraph (A) and (B) hereof;

(ii) indemnify, and upon demand reimburse, us for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPSR established by the PPSA or releasing any Products charged thereby;

(iii) not register a Financing Change Statement in respect of a Security Interest without our prior written consent;

(iv) not register, or permit to be registered, a Financing Statement or a Financing Change Statement in relation to the Products in favour of a third party without our prior written consent;

(v) immediately do all things necessary and comply with all our requests, to assist us in perfecting our Security Interest;

(vi) give us at least seven (7) days' written notice prior to any material change in your business practices of selling the Products which may result in a change in the nature of proceeds derived from such sales; 

(vii) give us at least seven (7) days' written notice prior to any proposed change in your details that are likely to affect a registration, including but not limited to any change to your address, facsimile number, email address, business or trading name, or other contact details.  

(g) You agree that so far as is permitted by the PPSA, sections 96 and 125 of the PPSA do not apply to the Security Agreement created by these terms and conditions.

(h) So far as is permitted by the PPSA, you hereby waive your right to receive any notices provided for under the PPSA, including but not limited to, notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4) and 135 of the PPSA.

(i) You waive your rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

(j) Unless otherwise agreed to in writing by us, you waive your right to receive a Verification Statement in accordance with section 157 of the PPSA. You shall unconditionally ratify any actions taken by us under this clause.

(k) You must fully indemnify us for any costs we incur (including legal fees on a full indemnity basis and disbursements) in obtaining an Order pursuant to section 182 of the PPSA, or other costs incurred by us in respect of any action for recovery of monies or repossession of the Products.  

(l) You warrant that all information and representations made to us by you, or a person acting on your behalf, are true, complete and correct and agree to indemnify us for any loss, claims or costs incurred as a result of a breach of any of these warranties by you.

6.12. Money paid by you must be applied in the following order unless we otherwise agree:

(a) to obligations that are not secured in the order in which those obligations were incurred;

(b) to obligations that are secured, but not by PMSIs, in the order in which those obligations were incurred;

(c) to obligations that are secured by PMSIs in the order in which those obligations were incurred.

1.        Risk

7.1. Risk in the Products shall pass to you:

(a) for Products that are to be picked up by you or your agent, the earlier of:

(i) the time of arrival of you or your agent for the purposes of pick-up; or

(ii) at 5pm on the date on which you are advised that the Products are available for pick-up;

(b) for Products that are to be delivered to you, at the time of acceptance by the carrier for the purposes of delivery.

7.2. The Products shall remain at your risk at all times thereafter unless and until we retake possession of the Products pursuant to these terms and conditions.

2.        Loss or Damage in Transit

8.1. We are not responsible to you or any person claiming through you for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not we are legally responsible for the person who caused or contributed to that loss or damage).

3.        Claims

9.1.     You must notify us in writing of any claims for damaged Products or shortages within three (3) business days of receipt or delivery.

9.2. You must notify us in writing of any claims for Products lost in transit within seven (7) days from receipt of the invoice.

9.3. Products are deemed to be received in good order, condition and quantity if no claim is received by you within the time limits set out in this clause.

4.        Trademarks and Advertising

10.1. You may not use any trademarks owned by us or the name of any Product or any derivation of the name of any Product, as part of your company or business name or for advertising or marketing purposes without our prior written consent.  

10.2. You shall not make any representations about the Products that extend beyond what is represented by us to you about the Products.

5.        Returns

11.1. We are not under any duty to accept Products returned by you for "change of mind" and will do so only on terms to be agreed in writing in each individual case. We may apply a restocking fee of 10% of the list price, to be applied to your credit account (if applicable) or to be paid prior to the return of the Products.

11.2. If we accept a return of any Products for "change of mind" pursuant to clause 11.1, the Products must be returned:

(a) at your cost;

(b) in good order and condition, unused, in its original packaging;

(c) accompanied by a dispatch note stating the original invoice number, date of supply and the reason for return.

6.        Consumer Guarantees

12.1. Except as provided herein or prohibited by law, there are no express or implied warranties, guarantees, conditions or other terms regarding the supply of the Products and we shall not be liable to you for physical or financial injury, loss or damage or for any indirect or consequential loss or damage of any kind arising out of the supply, layout, assembly, installation, operation or use of the Products, whether caused by tort, breach of contract or arising out of our negligence or in any way whatsoever.

12.2. If you are not a consumer as defined under the Competition and Consumer Act 2010, and for the purposes of the Australian Consumer Law (ACL) contained therein, any warranty, guarantee, condition or other term arising out of or in connection with the supply of the Products which might apply or which might be implied or incorporated into the contract by statute, common law, or otherwise (including, without limitation, any implied term or guarantee as to acceptable quality, fitness for purpose, due care and skill) is hereby expressly excluded to the maximum extent permitted by law.

12.3. If you are a consumer as defined under the Competition and Consumer Act 2010, and for the purposes of the ACL, we are required to make certain guarantees regarding the supply of the Products (including guarantees as to acceptable quality, fitness for purpose, due care and skill) and we make those guarantees to the extent we are required by law to do so. If these guarantees are not required to be made by us, we do not make them.

12.4. Where the Products are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability for failure to comply with a consumer guarantee implied by Division 1 of Part 3-2 of the ACL (other than a guarantee under ss. 51, 52 and 53) is hereby limited, at our option to:

(a) in the case of goods, any one or more of the following:

(i)     the replacement of the goods or the supply of equivalent goods;

(ii)    the repair of the goods;

(iii)   the payment of the cost of replacing the goods or of acquiring equivalent goods;

(iv)   the payment of the cost of having the goods repaired; or (b) in the case of services:

(i)    the supplying of the services again;

(ii)   the payment of the cost of having the services supplied again.

12.5. Notwithstanding all the above, to the maximum extent permitted by law, we will not be liable to you in respect of any Products which have been installed, used, maintained or modified incorrectly, outside our specifications, outside Product specifications, contrary to standard industry practices, for purposes other than their intended purpose, and/or which are showing signs of normal wear and tear. Such installation, use, maintenance or modification of the Products will render any claim by you null and void.

12.6. Nothing in this clause 12 affects any rights you may have under the ACL.

7.        Manufacture's Warranties

13.1. In addition to your rights under the ACL (if any), we provide a Manufacturer's Warranty in relation to certain Products. Where we provide a Manufacturer's Warranty in relation to certain Products, we warrant that those Products are free from defects for a specified period of time from the date of purchase. The general terms and exclusions applicable to our Manufacturer's Warranties are as set out in this clause 13. Additional terms, limitations and exclusions may also apply and are available on request or in the product information section of our website www.australianbarbellco.com. Our website also contains details of the warranty periods which apply to the Products covered by our Manufacturer's Warranties.  

13.2. Our Manufacturer's Warranties do not affect any rights you may have under the ACL, which cannot be excluded.  

13.3. Our Manufacturer's Warranties are only available to the original purchaser of the Products.  

13.4. To make a claim under a Manufacturer's Warranty, you must notify us in writing of your claim and provide sufficient information to enable us to identify the issue, together with proof of purchase. You must then clearly label and identify the Products with your name and address and return the Products to us at your expense so that we may inspect the Products and conduct an assessment of the claim.  

13.5. To the fullest extent permitted by law and subject always to clause 13.2, the following are not covered by our Manufacturer's Warranties:

(a) Products which have been installed, used, maintained or modified incorrectly, outside our specifications, outside Product specifications, contrary to standard industry practices, for purposes other than their intended purpose, and/or which are showing signs of normal wear and tear; 

(b) Any failure, to the extent that the failure is not a failure of the Product to perform in accordance with its specifications;

(c) Products which you have requested be manufactured outside specification or recommendation, after we have notified you in writing that the requested Products exceed specification or recommendation and may not be fit for purpose. To the maximum extent permitted by law, we accept no liability as to the structure or performance of those Products or for any structure, infrastructure or other attachment to which the Products are connected;

(d) Damage to Products resulting from use on or contact with abrasive or uneven surfaces;

(e) Products which have been dropped, thrown, slammed or used without due care;

(f)   Damage to Products resulting from negligence, misuse or abuse;

(g) Any component added to a Product that was not supplied by us;

(h) Slight colour variations between colour selection samples and finished Product.

13.6. Where we have agreed to re-take possession of Products returned to us under a warranty claim, we will not be taken to have admitted liability for that warranty claim until we have inspected the Product and notified you that we have accepted the claim.

8.        Termination, Default and Indemnity

14.1. We may refuse to supply our products to you at any time and shall not be liable to you for compensation, reimbursement, loss of prospective profits, expenditures, investment, or any other actual or potential damages whatsoever as a result of any such termination.

14.2. Should you fail to make a due payment for any Products supplied by us or commit an act of bankruptcy or by act or omission enable the appointment of a scheme manager, trustee, administrator, official manager, receiver, receiver and manager, liquidator or any other person authorised to enter into possession or assume control of any of your property pursuant to a mortgage or any other security:

(a) your right to sell the Products in the ordinary course of business or otherwise terminates immediately without the need for us to provide written confirmation;

(b) we may, without prejudice to any other rights we may have, do any or all of the following:

(i)    withdraw any credit facilities which may have been extended to you and demand immediate payment of all moneys owing to us;

(ii)   withhold any further deliveries of goods or performance of services required under these terms and conditions;

(iii) in respect of Products already delivered, enter onto your premises, either personally or through our agent, to recover same and sell for our own benefit, including to compensate us for the cost of recovering and selling the Products;

(iv) suspend and/or terminate performance of any other contracts which we have with you.

14.3. You indemnify us against any costs (compensation), fees, charges and disbursements:

(a) incurred by us; 

(b) charged by any mercantile or collection agent or solicitor engaged by us; for the purpose of the collection or recovery of Products under this clause 13 or moneys due and payable by you to us on an indemnity basis and all such costs shall be recoverable as a liquidated debt.

9.        Change of Ownership

You must give us seven (7) days' written notice prior to any change of your ownership or your business, or of directorships in the case of a corporate customer, which brings about a change in the effective control, or in the partnership, or of any other change whatsoever affecting this contract within seven (7) days from the date of such change and indemnify us against any loss or damage incurred by us as a result of your failure to notify us of any such change.

10.      Disputes

In the event of any dispute between us and you in relation to the contract for the supply of Products, either party may give written notice of such dispute to the other, following which the dispute shall be referred to mediation prior to any legal action being taken. We have the right to waive this clause.

11.      No variation

No variation or modification or substitution of these terms and conditions shall be binding on us unless specifically accepted by us in writing. We may amend or replace these terms and conditions at any time by giving 7 days' notice to you or alternatively by publishing updated terms and conditions on our website www.australianbarbellco.com.au

12.      Governing law

The terms and conditions, and the contract for sale to which these terms and conditions relate, shall be governed and construed in accordance with the laws for the time being in force in the State of Victoria, Australia and the parties agree to the exclusive jurisdiction of the Courts and Tribunals of that State.

13.      Notices

Any notice to be served on a party must be in writing and sent to the party to whom it is addressed at the given address on the order form by prepaid post. Any notice sent by prepaid post shall be deemed to be received 2 business days after posting.

14.      Severability

A provision of these terms and conditions which is unenforceable in a jurisdiction shall be ineffective to the extent of the unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of the provision in another jurisdiction.

15.      Time is of the essence

Time, wherever mentioned, shall be of the essence.