Billi Terms & Conditions of Trade – version dated June 2016
1.1. In these Billi terms & conditions of trade (‘Conditions of Trade’), ‘Billi’ means Billi Pty Ltd (ABN 93 420 879 077) (ACN 124 066 717), ‘the Buyer’ means the person, firm or company purchasing or renting the Goods, ‘the Goods’ means the materials and/or services subject to a sale, rental or maintenance contract between the Buyer and Billi, ‘Consumer’ has the same meaning as prescribed under the Competition and Consumer Act 2010 (Cth) incorporating the Australian Consumer Law, ‘PPSA’ means the Personal Property Securities Act 2009 (Cth). ‘PMSI’ means a purchase money security interest, as defined in the PPSA, and ‘Proceeds’ has the meaning given to it in section 31 of the PPSA.
1.2. These Conditions of Trade may be updated by Billi from time to time and shall apply as and from the date update and published at www.billi.com.au.
2.1. Unless otherwise agreed in writing, every order, sale, quotation and contract placed with Billi shall be subject to these Conditions of Trade to the extent that the same are applicable which are deemed to be agreed and accepted by all parties involved and override any standard terms and conditions stipulated, incorporated or referred to in the Buyer’s order.
2.2. Without limiting Clause 2.2, these Conditions of Trade operate in conjunction with the Competition and Consumer Act 2010 (Cth) incorporating the Australian Consumer Law.
2.3. These Conditions of Trade shall be governed by the laws applicable in the State of Victoria and the Buyer submits to the jurisdiction of the Victorian Courts and Tribunals.
2.4. If any clause or part of these Conditions of Trade not being of fundamental nature is held to be illegal or unenforceable, the validity and enforceability of the remainder of these Conditions of Trade shall not be affected.
2.5. These Conditions of Trade bind:
2.5.1. if these Conditions of Trade are included as part of any trading agreement entered into with Billi – each person or entity to that trading agreement; or
2.5.2. if these Conditions of Trade are included as part of, or accompany, a Credit Account Application – each person or entity to that Credit Account Application; or
2.5.3. if these Conditions of Trade are included as part of, or accompany, any confirmation of order, invoice or other document issued by Billi – each person or entity to whom the confirmation of order, invoice or other document is addressed, who is identified in the confirmation of order, invoice or other document as a customer or to whom Goods are expressed to have been sold in the confirmation of order, invoice or other document;
in respect of each sale, rental or supply of Goods by Billi to the relevant Buyer, and in respect of each contract between Billi and the relevant Buyer for each such sale, rental or supply.
2.5.4. Except as otherwise expressly stated in these Conditions of Trade, these Conditions of Trade do not oblige Billi to sell, rent or supply any, or any particular, Goods to the Buyer.
3.1. The Buyer shall pay the price of the Supply stated in the invoice which will be the price ruling at the date of delivery inclusive of GST (as defined under the A New Tax System (Goods and Services Tax) Act 1999, as amended (‘the GST Act‘)).
3.2. Prices and terms are subject to alternation without notice and unless otherwise specified are exclusive of any GST.
3.3. All stock is ordered subject to prior sale.
3.4. Billi shall provide the Buyer with a Tax Invoice including the ABN number and other details required in the GST Act.
3.5. The Buyer shall pay GST at the rate set by the GST Act and shown on the tax invoice.
3.6. Unless otherwise agreed in writing, the price is exclusive of packaging costs, freight charges, delivery costs, installation and de-installation costs, bank charges and such other charges notified by Billi to the Buyer, whether quantifiable or not in advance (‘Price Additions‘), all of which costs if incurred are payable by the Buyer.
3.7. If the cost to Billi of supplying the Goods not yet delivered is materially increased by any dispute or cause, and the parties concerned cannot agree on how much such increase shall be borne, Billi or the Buyer many cancel the contract without liability in respect of such undelivered Goods.
3.8. Where delivery of the Goods is to be made by instalments, each delivery shall be treated as a separate contract and failure, suspension or delay in any delivery or defect in the Goods delivered shall not vitiate the contract as to other Goods.
4. Acceptance and Risk
4.1. The Buyer accepts the Goods and the Goods are at the Buyer’s risk immediately upon leaving the premises, whether the Goods are delivered by Billi or by someone other than Billi or contracted by the Buyer. If the Buyer wishes to insure against loss or damage to the Goods after they have left Billi’s premises, it shall be the Buyer’s responsibility to do so.
4.2. All delivery or installation dates are estimates only and Billi shall not be liable in damages for any delay nor shall the Buyer be entitled to refuse or to accept delivery, except where delay or an unreasonable length has occurred due to circumstances within Billi’s control without limiting the generality of the foregoing. The following circumstances shall be deemed NOT to be within Billi’s control: Acts of God, war, riots, civil commotions, strikes, lock outs, trade disputes, fires, breakdowns, interruptions of transport, government action, and delay in delivery by Billi’s suppliers. During any such period of delay, the Buyer, after giving reasonable prior written notice of his intention to do so, shall be at liberty to purchase or rent elsewhere such Goods only as shall be necessary for the Buyer’s immediate requirements and to cancel a delivery from Billi of any corresponding quantities so purchased or rented.
5. Terms of Payment
5.1. The Buyer shall pay the price and the Price Additions (‘Total Price‘) before the end of the month following the month of invoice. Unless otherwise stated on the invoice, this shall be deemed the ‘Due Date’.
5.2. Unless the Buyer is a Consumer:
5.2.1. if the Buyer does not pay the full amount of the Total Price on or before the Due Date, Billi may charge a monthly accounting fee equal to 1.5% of the overdue amount for each month or part of month that any amount is overdue; and
5.2.2. all expenses incurred by Billi in collecting overdue payment from the Buyer, including debt collection agency, legal and court fees including indemnity costs, solicitor/client costs, party/party costs and costs of any and all dispute resolution processes, shall be payable by the Buyer to Billi as a debt due forthwith upon demand from Billi.
5.3. The Buyer shall send all amounts due under these Conditions of Trade to the address of Billi printed on the front of the invoice.
5.4. If the Buyer shall fail to make any payment on the Due Date or becomes bankrupt or enters into liquidation (other than for the purpose of amalgamation or reconstruction) or makes any composition arrangement with creditors or has a receiver appointed of its undertaking property or assets or any part thereof, Billi shall have the option to withhold or cancel further deliveries, provided that the failure on the part of Billi to exercise such option in respect to one or more deliveries shall not affect their right to exercise it in respect of other deliveries.
5.5. If the Buyer has been granted credit then the credit can be withdrawn at any time and any orders cancelled by Billi in its sole discretion.
5.6. Any agreement by Billi to extend the terms of credit or other indulgence granted to the Buyer shall not affect the Buyer’s liability to account to Billi as aforesaid.
6. Default by Buyer
6.1.1. the Buyer breaches any of these Conditions of Trade;
6.1.2. any cheque tendered by or on behalf of the Buyer is dishonoured for payment;
6.1.3. the Buyer fails to comply with any demand for payment issued by Billi;
6.1.4. any amount payable by the Buyer to Billi becomes overdue for payment or, in Billi’s opinion, the Buyer will be unable to meet its payment obligations to Billi as they fall due;
6.1.5. any of the following occurs in respect of the Buyer, if it is a company:
(a) a receiver, manager, administrator or controller becomes entitled to take possession of any of the Buyer’s assets, any proceedings are instituted for the winding up of the Buyer, or the Buyer enters into a deed of company arrangement;
(b) the Buyer becomes an externally-administered body corporate; or
(c) the Buyer becomes insolvent; or
6.1.6. the Buyer (being an individual) commits an act of bankruptcy or is or becomes an insolvent under administration;
then, without prejudice to Billi’s other remedies under these Conditions of Trade or at law:
6.1.7. Billi will be entitled to cancel all or any part of any of the Buyer’s orders which remain unfulfilled;
6.1.8. all amounts owing to Billi by the Buyer will, whether or not due for payment, become immediately payable by the Buyer;
6.1.9. the Buyer’s right to possess, use up, sell or otherwise deal with Goods in respect of which title has not passed to the Buyer under clause 10 will cease; and
6.1.10. Billi will be entitled to enter any premises where the Goods in respect of which title has not passed to the Buyer under clause 10 are kept, and remove, repossess and re-sell all or any such Goods. Billi is not liable to the Buyer if Billi takes such action.
6.2. The Buyer indemnifies Billi in respect of any claims or actions against, and costs, expenses and other liabilities incurred by, Billi in relation to the removal, repossession, rental and sale of Goods pursuant to these Conditions of Trade, including without limitation, any claims brought by third parties.
6.3.1. Billi retains possession or control of Goods;
6.3.2. payment of the price of those Goods is due by the Buyer to Billi;
6.3.3. Billi has made demand in writing to the Buyer for payment of the price of those Goods; and
6.3.4. Billi has not received the price of those Goods,
then (without limiting any other provision of these Conditions of Trade), whether title in those Goods has passed to the Buyer or remains with Billi, Billi may dispose of those Goods and may claim from the Buyer any loss incurred by Billi on such disposal.
7. Exclusion of warranties and limitation of liability
7.1. Billi excludes all warranties and guarantees in connection with Goods (or advice regarding Goods) supplied to the Buyer other than those which may not be excluded under the Competition and Consumer Act 2010 (Cth) or other relevant legislation. For the avoidance of doubt, this exclusion includes an exclusion of all conditions and warranties implied by custom, the general law or statute, for damages suffered by the Buyer arising in any way out of the supply, delay in supplying or failure to supply Goods.
7.2. Billi’s liability under any guarantee, condition or warranty implied or stipulated by the Competition and Consumer Act 2010 (Cth) or similar legislative provision which may not be excluded but may be limited, is limited at Billi’s option to:
7.2.1. the replacement of Goods or the supply of equivalent Goods;
7.2.2. the repair of Goods; or
7.2.3. the refund of the price paid by the Buyer for Goods.
7.3. Billi is not liable for indirect or consequential loss however described, except for any such liability which may not be excluded by force of the Competition and Consumer Act 2010 (Cth) or similar legislative provision.
7.4. Without limiting the generality of any other provision of these Conditions of Trade, the Buyer:
7.4.1. acknowledges and accepts that whilst the Goods are (a) manufactured within a certified quality control environment, (b) manufactured in accordance with relevant Australian Standards, and (c) delivered free of any waterborne bacteria (including legionella), given that Billi has no control over the conditions within which the Goods are operated or used, Billi shall not be liable or responsible for any liability associated with the operation and use of the Goods after delivery;
7.4.2. shall ensure that it, and in the case where the Buyer on-sells or supplies the Goods to a third party, ensure the third party, is fully aware of all instructions and limitations published or communicated by Billi relating to the (a) care, maintenance and cleaning of the Goods, and (b) the use, nature or quality of the Goods, including but not limited to instructions and limitations:
(a) as may appear on labels affixed to, or in or on the packaging of, Goods as supplied by Billi; and
(b) as may be notified by Billi to the Buyer, or circulated by Billi, from time to time including any brochures, specifications and other promotional material in relation to Goods provided by Billi, or published on Billi’s website from time to time;
7.4.3. acknowledges and agrees that it is responsible, and in the case where the Buyer on-sells or supplies the Goods to a third party, ensure that the third party is aware of their responsibility, to ensure that:
(a) all water supplied to the Goods is microbiologically safe and free of any waterborne bacteria;
(b) a suitable level of filtration is installed with the Goods and is fully operational at all times;
(c) filters comprising part of the Goods are changed at Billi recommended intervals, and in any case at intervals not longer than 12 months;
7.4.4. acknowledges and agrees that it shall not, in the case where the Buyer on-sells or supplies the Goods to a third party, make any representations or claims about the quality, longevity, performance or other aspect of the Goods which has not been expressly authorised by Billi in writing.
8.1. The Buyer may only return goods to Billi for credit if:
8.1.1. the prior written approval of Billi for the return has been obtained; and
8.1.2. the freight costs on the return have been paid by the Buyer.
8.2. If the Buyer returns the Goods otherwise than in accordance with clause 8.1:
8.2.1. Billi may at its sole discretion accept the return and grant a credit to the Buyer; or
8.2.2. if Billi does not accept the return, Billi may hold the Goods on the Buyer’s behalf at the Buyer’s expense until arrangements satisfactory to Billi are made by the Buyer for the disposal of the Goods.
8.3. Any credit given by Billi for Goods returned by the Buyer and accepted by Billi is subject to a re-stocking fee equal to 35% of the purchase price of the Goods plus return freight expenses.
No order for Goods placed by the Buyer and accepted by Billi may be cancelled or deferred without prior consent in writing of Billi and in the case of custom made Goods ordered by the Buyer, no order for such Goods may be cancelled after:
9.1. Billi has scheduled manufacture of such Goods; or
9.2. Billi has purchased materials required for the manufacture of such Goods.
Goods purchased by the Buyer
10.1. Property in and title to each unit of the Goods supplied shall not pass to the Buyer until payment has been received by Billi in full (each unit being considered as a whole).
10.2. Until property in the Goods passes to the Buyer hereunder the Buyer shall, unless otherwise agreed by Billi in writing, store the Goods so that they are clearly identifiable as the property of Billi.
10.3. If the Buyer fails to make payment in accordance with these Conditions of Trade or Billi reasonably believes the Buyer is unable to make payment for the Goods within prescribed terms, the servants or agents of Billi shall be entitled to exercise any of its rights specified in clause 6 hereof.
Goods rented by the Buyer
10.4. Billi retains full title to Goods rented to the Buyer notwithstanding (a) the delivery of the Goods to the Buyer; (b) the possession and use of the Goods by the Buyer, and (c) the payment of any rental fees by the Buyer.
11. Personal Property Securities Act
11.1. The Buyer agrees that these Conditions of Trade and in particular the provisions of clause 10 create a security interest (including, where applicable, a PMSI) in Goods (and their Proceeds) supplied by Billi to the Buyer from time to time.
11.2. The Buyer agrees to do all things necessary and execute all documents reasonably required by Billi to register the PMSI granted by the Buyer under these Conditions of Trade, and ensure that Billi acquires a perfected security interest in the Goods under the PPSA.
11.3. The PMSI does not lose its priority as a result of the renewal, refinance, consolidation or restructure of the subject matter of these Conditions of Trade or any purchase money obligations of the Buyer.
11.4. Until title to Goods passes to the Buyer under clause 10, the Buyer waives its rights under sections, 95, 118, 120, 121(4), 129, 130, 132(3)(d), 132(4), 135, 142, 143, 157(1) and 157(3) of the PPSA, to the extent that is permitted by law. Billi may also contract out of any other provisions of the PPSA not specified in this clause 11 as determined by Billi from time to time, provided that is also permitted under the PPSA.
11.5. Where Billi has rights in addition to those under Part 4 of the PPSA, those rights continue to apply.
11.6. The Buyer agrees that repossession and retention of Goods pursuant to the PPSA will only satisfy so much of the amounts owing by the Buyer to Billi as is equivalent to Billi’s estimation of the market value of the Goods as at the date of repossession, and the repossession and retention will immediately extinguish any rights or interest the Buyer has in the Goods.
11.7. Until title to Goods passes to the Buyer under clause 10, the Buyer must not give to Billi a written demand, or allow any other person to give to Billi a written demand, requiring Billi to register a financing change statement under the PPSA in respect of the Buyer, the Goods, or enter into or allow any other person to enter into the personal property securities register a financing change statement under the PPSA in respect of the Goods.
11.8. The Buyer will be responsible for payment of any fees (and any other costs) that Billi incurs in relation to investigating, perfecting or registering its security interest in the Goods, and those fees and costs may be added as a charge on invoices issued by Billi to the Buyer.
11.9. Money that Billi receives from or on account of the Buyer may be applied by Billi in the following order, or in any other order that Billi may determine in its absolute discretion:
11.9.1. (non-secured obligations) first, to satisfy any obligation owed by the Buyer to Billi that is not secured by a security interest in Goods;
11.9.2. (secured obligations but not PMSIs) then, to satisfy any obligation owed by the Buyer to Billi that is secured by a security interest in Goods, but not by a PMSI;
11.9.3. (PMSIs satisfied using related proceeds) then, to satisfy any obligation owed by the Buyer to Billi that is secured by a PMSI in Goods for that obligation and using proceeds from the sale of the Goods secured by that PMSI; and
11.9.4. (PMSIs satisfied using other sources) then, to satisfy any obligation owed by the Buyer to Billi that is secured by a PMSI in Goods using funds or proceeds from any source.
11.9.5. The Buyer must not assign or factor its right and interest in any debt owed by a customer of the Buyer to the Buyer on account of the proceeds of sale of any Goods by the Buyer on credit or deferred payment terms without Billi’s prior written consent.
12. Rental Agreements – specific terms
12.1. For the purposes of this clause:
‘Rental Agreement‘ means a rental agreement entered into between Billi and the Renter for the rental of Goods from Billi.
‘Rented Equipment‘ means Goods supplied by Billi to the Renter pursuant to a Rental Agreement.
12.2. The Renter agrees to keep and maintain all Rented Equipment free of any charge, lien, or security interest, except as created under the Rental Agreement, and not otherwise to deal with Rented Equipment in a way that will, or may, prejudice the rights of Billi under the Rental Agreement or the PPSA.
12.3. The Renter irrevocably grants to Billi the right to enter the premises of the Renter, and without being in any way liable to the Renter or any other person, if Billi has cause to exercise any of its rights under the Rental Agreement or under the PPSA and the Renter agrees to indemnify Billi against any such liability.
13. Buyer’s Statutory Rights
These Conditions of Trade shall not exclude, limit or modify the rights, entitlements and remedies conferred upon the Buyer, or the liabilities imposed upon Billi under Commonwealth or State legislation, but are subject thereto all excludable conditions and warnings which are hereby excluded where the Buyer is not a Consumer.
14. Buyer as Trustee
14.1. Where the Buyer enters into a contract with Billi in its capacity as trustee of a trust, whether or not disclosed to Billi and whether or not so expressed in the contract, the Buyer warrants that:
14.1.1. it is the sole trustee of the trust and has the power and authority to enter into the contract;
14.1.2. it does so with the consent of, and for the benefit of, all beneficiaries of the trust;
14.1.3. it does so both in its personal capacity and in the capacity of trustee
14.1.4. it is a right of indemnity from the trust’s assets for all obligations incurred by it; and
14.1.5. it will not remove or resign as trustee without Billi’s express written consent.
15. Governing law and jurisdiction
These Conditions of Trade shall be subject to the laws of the State of Victoria. The jurisdiction of the hearing of any dispute arising out of these Conditions of Trade shall be the State of Victoria.
16. Use of personal information
17. Variation of these Conditions of Trade
17.1. These Conditions of Trade may be varied, replaced or deleted from time to time by Billi and those items so altered shall form part of the contract between the parties in relation to orders and requests for Goods made or placed by the Buyer with Billi.
17.2. Failure by Billi to insist upon strict performance of any term of any contract between the parties or of any of these Conditions of Trade shall not constitute a waiver of similar or subsequent breach and the rights of Billi to enforce these Conditions of Trade and those in any contract shall remain valid and subsisting.
18.1. The Buyer must not assign any rights or benefits under these Conditions of Trade unless the Buyer has obtained Billi’s prior written consent. Any change in any ownership interest in the Buyer will be treated as an assignment for the purposes of this clause 16.1. Any assignment by the Buyer without Billi’s written consent will release Billi (at its discretion) from Billi’s obligations under these Conditions of Trade, and clause 6.1 will apply.
18.2. Billi may assign, sub-contract or license any of its rights, benefits or obligations under these Conditions of Trade without the Buyer’s consent.
If any provision of these Conditions of Trade, or any provision of a contract between Billi and the Buyer regarding Goods, is or at any time becomes void or unenforceable, the remaining provisions will continue in full force and effect.
20. Time of Essence and No Waiver
Time is the essence of these Conditions of Trade and any contract between Billi and the Buyer regarding Goods. Neither failure nor delay by Billi to exercise any power, right or remedy will operate as a waiver by Billi of that power, right or remedy.
21.1. In these Conditions of Trade unless the context otherwise requires:
21.1.1. The singular includes the plural and vice versa and a gender includes any gender.
21.1.2. A reference to these terms and conditions includes the terms of any privacy statement or policy issued by Billi from time to time
21.1.3. References to clauses, paragraphs, recitals, schedules, annexures and exhibits are references to clauses, paragraphs, recitals, schedules, annexures and exhibits in these Conditions of Trade.
21.1.4. Headings are for convenience only and must be ignored when construing these Conditions of Trade.
21.1.5. A reference to a party includes that party’s successors, permitted assigns or substitutes, executors and administrators.
21.1.6. Other parts of speech and grammatical forms of a word or phrase defined in these Conditions of Trade have a corresponding meaning.
21.1.7. A reference to a person includes any company, firm, partnership, joint venture, association, corporation or other body corporate and any governmental agency and vice versa.
21.1.8. A reference to any agreement or document is also a reference to that agreement or document as amended, notated, supplemented or replaced from time to time.
21.1.9. A reference to a law includes regulations and other instruments under it and amendments or replacements of any of them whether now or in the future.
21.1.10. Any reference to “writing” includes an electronic communication and “written” is to be interpreted accordingly.
21.1.11. Terms defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), the Corporations Act 2001 (Cth) or the PPSA have the same meaning in these Conditions of Trade unless provided otherwise.
21.1.12. “Including” and any other similar words are not words of limitation.
21.1.13. An agreement, deed, covenant, representation or warranty on the part of 2 or more persons is for the benefit of them jointly and severally.
21.1.14. Any indemnity is an irrevocable, continuing and unconditional indemnity and remains enforceable despite any variation to the obligations of the Buyer.
21.1.15. General words following words describing a particular class or category are not restricted to that class or category.