Terms of Service
[ FOR CUSTOMERS WITHIN AUSTRALIA ONLY]
“Kixx” means the Business selling products to the Customer as identified in Kixx Invoice. Customer means the person or legal entity identified in Kixx Invoice. “Contract” means a contract for sale by Kixx to the Customer of the products and/or services incorporating the Terms and Conditions.
2. FORMATION OF CONTRACT
2.1 No Contract shall come into existence until the Customer’s order has been accepted by Kixx and such acceptance has been received by the customer. The contract shall be deemed to be concluded at the time and place where such acceptance is received by the Customer. The Customer warrants that it is buying for its own internal use only and not for re-sale purposes.
2.2 The products sold and/or services rendered are subject to the Terms and Conditions to the exclusion of any other terms and conditions stipulated or referred to by Customer. The Customer acknowledges that it is aware of the contents of and agrees to be bound by the Terms and Conditions.
2.3 These Terms and Conditions are subject to the laws of Australia including without limitation the Trade Practices Act 1974 (the Act).
3. ORDERS, PRICE AND PAYMENT
3.1 Unless credit terms have been expressly agreed by Kixx, payment for the products or services shall be made in full before physical delivery of products or services.
3.2 Customer may pay for all shipping and handling charges.
3.3 Customer shall bear all country, provincial, government, state and local sales, use, goods and services, value added, excise, privilege and similar levies/taxes.
3.4 Time for payment is of the essence. Kixx reserves the right to charge interest at the rate of 2% above the base commercial floating rate for Macquarie Bank in Sydney.
4. TITLE AND RISK
Title to and risk in the products shall pass to the Customer upon delivery of the products to Customer.
5.1 Kixx shall deliver the products to the place of delivery designated by Customer and agreed to by Kixx (“Place of Delivery”).
5.2 Kixx may, at its discretion, deliver the products by instalments in any sequence. Where the products are so delivered by instalments, each instalment shall be deemed to be the subject of a separate contract and no default or failure by Kixx in respect of any one or more instalments shall vitiate the Contract in respect of products previously delivered or undelivered products.
5.3 Any dates quoted by Kixx for the delivery of the products are approximate only and shall not form part of the Contract. Kixx shall not be liable for any delay in delivery of the products and/or services, howsoever caused.
5.4 Kixx may revise and/or discontinue Products at any time without notice as part of Kixx’s policy of on-going Product up-date and revision. Revised or updated Products will have the functionality and performance of the Products ordered. The Customer accepts that Kixx’s policy may result in differences between the specification of Products delivered to the Customer and the specification of Products ordered
6. ACCEPTANCE OF PRODUCTS
6.1 Unless the Customer notifies Kixx to the contrary on the day of delivery and such notification is confirmed in writing within two days, the Products shall be deemed to have been accepted by the Customer as being in good condition and in accordance with the Contract. The Customer shall not be entitled to withhold payment of all or any of the prices of the Products whilst any claim is being investigated by Kixx.
6.2 Kixx Products purchased under these Terms and Conditions directly from Kixx by an end-user Customer may be returned by Customer up to fifteen (15) days from the date of the invoice for a replacement, refund or credit. The refund or credit will not include any shipping and handling charges forming part of the purchase price. Returned Products must be received by Kixx in as-new or as-shipped-by-Kixx condition.
7.1 All Goods are supplied with a 1 (one) year manufacturer’s warranty against core defects in production or materials. The warranty is valid for Australian residents/companies only. This warranty does not cover: (a) normal or fair wear and tear (b) damage arising from abnormal use, or abuse or (c) goods which have not been maintained, or which have been modified.
7.2 While not affecting any non-excludable warranty or guarantee implied by law, Kixx does not give any warranty that the Products are fit for any particular purpose (unless explicitly discussed with Kixx prior to the sale of goods).
7.3 Warranty claims must be placed in writing and addressed to Kixx. Kixx will assess each case and comply with its legal obligations.
7.4 In the event of a warranty claim, it is the responsibility of the customer to return the component or product(s) back to Kixx for assessment. Return shipping costs will be the responsibility of the customer.
7.5 Kixx does not warrant products for outdoor use unless specifically indicated on the product information packaging.
8.1 Kixx shall not be liable in contract or in tort for any loss or damage suffered and consumer’s rights are limited to those set out in these Terms and Conditions and under statute.
8.2 To the extent permitted by law and subject to clause 10.7, Kixx’s total liability herein in respect of each event or series of connected events shall not exceed the total price paid for the purchase of products and/or services under these Terms and Conditions.
8.3 The Customer shall indemnify Kixx and keep Kixx fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or wilful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of these Terms and Conditions.
8.4 To the extent permitted by law, Kixx and Customer agree that Kixx will not be liable for Products not being available for use. Kixx shall not be liable to the Customer for any incidental, indirect, special or consequential damages arising out of or in connection with the purchase, use or performance of products or services, even if Kixx has been advised of their possibility.
8.5 To the extent permitted by law, any typographical, clerical or other error or omission in sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by Kixx shall be subject to correction without any liability on the part of Kixx.
8.6 Under the Act, where implied conditions and warranties cannot be excluded, Kixx liability for breach of such conditions and warranties (other than a condition or warranty implied by section 69 of the Act) shall be limited, at Kixx option, to: Replacement of the products or the supply of equivalent products; the repair of such products; the payment of the cost of replacing the products or of acquiring equivalent products; or the payment of the cost of having the products repaired;
9. FORCE MAJEURE
Neither party shall be liable for any delay in performing any of its obligations under these Terms and Conditions if such delay is caused by circumstances beyond the reasonable control of the party so delaying, and such party shall be entitled to a reasonable extension of time for the performance of such obligations.
10. GOVERNING LAW
These Terms and Conditions shall be governed by and construed in accordance with the laws of New South Wales and shall be subject to the non-exclusive jurisdiction of the courts of New South Wales.
11.1 The Customer shall not assign or otherwise transfer any Contracts or any of its rights and obligations hereunder whether in whole or in part without the prior written consent of Kixx. Any such unauthorized assignment shall be deemed null and void.
11.2 If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provisions in question shall not be affected thereby.
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