RADUM PTY LTD - TERMS AND CONDITIONS OF TRADE
1. Definitions
In these Terms:
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;
“Agreement” means any agreement for the provision of goods or services by Radum to the Customer;
“consumer” is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement;
“Customer” means the person, jointly and severally if more than one, acquiring goods or services from Radum;
“goods” means goods supplied by Radum to the Customer;
“GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;
“PPSA” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;
“Radum” means Radum Pty Ltd as trustee for the BJW Trust (ABN 31 697 589 342);
“services” means services supplied by Radum to the Customer; and
“Terms” means these Terms and Conditions of Trade.
2. Basis of Agreement
2.1 Unless otherwise agreed by Radum in writing, the Terms apply exclusively to every Agreement and cannot be
varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
2.2 Any quotation provided by Radum to the Customer for the proposed supply of goods or services is:
(a) valid for 30 days;
(b) an invitation to treat only; and
(c) only valid if in writing.
2.3 The Terms may include additional terms in Radum’s quotation, which are not inconsistent with the Terms.
2.4 Additional terms and conditions may apply where the goods require installation.
2.5 An Agreement is accepted by Radum when Radum accepts, in writing or electronic means, an offer from the
Customer or provides the Customer with the goods or services.
2.6 Radum has absolute discretion to refuse to accept any offer.
2.7 The Customer must provide Radum with its specific requirements, if any, in relation to the goods and services.
2.8 Radum may vary or amend these Terms by written notice to the Customer at any time. Any variations or
amendments will apply to orders placed after the notice date.
3. Pricing
3.1 Prices quoted for the supply of goods and services exclude GST and any other taxes or duties imposed on or in
relation to the goods and services. Any such GST and other taxes or duties are additionally at the Customer’s
account.
3.2 Prices quoted for the supply of imported goods are based upon the currency exchange rate prevailing as at the
date Radum places its order on the overseas supplier. If there is any variation in the currency exchange rate for any
reason, then the price payable by the Customer to Radum will be adjusted in accordance with any increase or
decrease to the Australian Dollar.
3.3 If the Customer requests any variation to the Agreement, Radum may increase the price to account for the variation.
3.4 Where there is any change in the costs incurred by Radum in relation to goods or services, Radum may vary its price
to take account of any such change, by notifying the Customer.
4. Payment
4.1 Unless otherwise agreed in writing:
(a) Subject to 4.1(b), full payment for the goods or services must be made Within 30 days from the end of the month
in which the goods or services were supplied.
(b) Radum reserves the right to require payment in full on delivery of the goods or completion of the services.
4.2 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.3 Payment made by credit card will incur a 2% surcharge.
4.4 Payment terms may be revoked or amended at Radum’s sole discretion immediately upon giving the Customer
written notice.
4.5 The time for payment is of the essence.
5. Payment Default
5.1 If the Customer defaults in payment by the due date of any amount payable to Radum, then all money which would
become payable by the Customer to Radum at a later date on any account, becomes immediately due and payable
without the requirement of any notice to the Customer, and Radum may, without prejudice to any of its other
accrued or contingent rights:
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act
1983 (Vic) for the period from the due date until the date of payment in full;
(b) charge the Customer a late payment administration fee of $5 plus GST;
(c) charge the Customer for, and the Customer must indemnify Radum from, all costs and expenses (including
without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to
enforce compliance with the Agreement or to recover any goods;
(d) cease or suspend supply of any further goods or services to the Customer;
(e) by written notice to the Customer, terminate any uncompleted contract with the Customer.
5.2 Clauses 5.1(d) and 5.1(e) may also be relied upon, at Radum’s option:
(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any
assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors
generally; or
(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or
composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator,
administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken
for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without
winding up of the Customer.
5.3 The Customer hereby charges all its right, title and interest in the property or properties referred to in the
Customer’s Credit Application and also any property or properties that it owns currently or may acquire in the future
solely or jointly or have or become to have a beneficial interest in, in favour of Radum, with the due and punctual
observance and performance of all the obligations of the Customer. The Customer indemnifies Radum against all
expenses and legal costs (on a solicitor/own client basis) for preparing, lodging and removing any caveat.
5.4 The Customer hereby acknowledges that Radum may at its discretion register and lodge a caveat(s) on such
property or properties in respect of the interests conferred on it under clause 5.3. Such registration of a caveat by
Radum over the Customer’s property or properties must not be challenged by the Customer in any way whatsoever,
and the Customer agrees not to take any steps in filing a “lapsing notice” via the Land Titles Office to have the caveat
removed, until such time that the Customer has paid all monies owing by it to Radum as claimed from time to time.
6. Passing of Property
6.1 Until Radum receives full payment in cleared funds for all goods and services supplied by it to the Customer, as well
as all other amounts owing to Radum by the Customer:
(a) title and property in all goods remain vested in Radum and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for Radum;
(c) the Customer must keep the goods separate from its goods and maintain Radum’s labelling and packaging;
(d) the Customer must hold the proceeds of sale of the goods on trust for radum in a separate account with a bank
to whom the Customer has not given security however failure to do so will not affect the Customer’s obligation
as trustee;
(e) in addition to its rights under the PPSA, Radum may without notice, enter any premises where it suspects the
goods are and remove them, notwithstanding that they may have been attached to other goods not the
property of Radum, and for this purpose the Customer irrevocably licences Radum to enter such premises and
also indemnifies Radum from and against all costs, claims, demands or actions by any party arising from such
action.
7. Personal Property Securities Act
7.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
7.2 For the purposes of the PPSA:
(a) terms used in clause 7 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and Radum has a Purchase Money Security Interest in all present and
future goods supplied by Radum to the Customer and the proceeds of the goods;
(c) The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the
Customer at any particular time; and
(d) the Customer must do whatever is necessary in order to give a valid security interest over the goods which is
able to be registered by Radum on the Personal Property Securities Register.
7.3 The security interest arising under this clause 7 attaches to the goods when the goods are collected or dispatched
from Radum’s premises and not at any later time.
7.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures
or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
7.5 Radum and the Customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and
143 of the PPSA will apply to these Terms.
7.6 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on
Radum will apply only to the extent that they are mandatory or Radum agrees to their application in writing; and
(b) where Radum has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
7.7 The Customer must immediately upon Radum’s request:
(a) do all things and execute all documents necessary to give effect to the security interest created
under this Agreement; and
(b) procure from any person considered by Radum to be relevant to its security position such agreements and
waivers (including as equivalent to those above) as Radum may at any time require.
7.8 Radum may allocate amounts received from the Customer in any manner Radum determines, including in any
manner required to preserve any Purchase Money Security Interest it has in goods supplied by Radum.
7.9 For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any
information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither
party may disclose any information pertaining to these Terms or the sale of the goods, except as otherwise required
by law or that is already in the public domain.
8. Risk and Insurance
8.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer
immediately on the goods being delivered to the Customer or taken from Radum’s premises.
8.2 The goods are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits
under all relevant laws and regulations in relation to the goods.
8.3 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or
third parties arising out of the use, installation or possession of any of the goods sold by Radum, unless recoverable
from Radum on the failure of any statutory guarantee under the ACL.
9. Performance of Agreement
9.1 Any period or date for delivery of goods or provision of services stated by Radum is an estimate only and not a
contractual commitment.
9.2 Radum will use its reasonable endeavours to meet any estimated dates for delivery of the goods but will not be
liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
9.3 If Radum cannot complete the services by any estimated date, it will complete the services within a reasonable time.
10. Delivery
10.1 Subject to clause 10.6, Radum will arrange for the delivery of the goods to the Customer.
10.2 The Customer is responsible for all costs associated with delivery, including freight, insurance and other charges
arising from the point of dispatch of the goods to the Customer to the point of delivery.
10.3 Radum may make part delivery of goods or provision of services and Radum may invoice the Customer for the
goods or services provided.
10.4 The Customer indemnifies Radum against any loss or damage suffered by Radum, its sub-contractors or employees
as a result of delivery, except where the Customer is a consumer and Radum has not used due care and skill.
10.5 If delivery is attempted and is unable to be completed the Customer is deemed to have taken delivery of the goods.
The Customer is liable for storage charges payable monthly on demand.
10.6 If agreed that the Customer will collect the goods:
(a) the Customer must collect the goods with 7 days of being advised they are ready;
(b) if the Customer does not collect the goods within this time, the Customer is deemed to have taken delivery of
the goods and is liable for storage charges payable monthly on demand.
11. Liability
11.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods or
services, the Agreement does not include by implication any other term, condition or warranty in respect of the
quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or
performance of the goods or services or any contractual remedy for their failure.
11.2 If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies
against Radum for failure of a statutory guarantee under the ACL.
11.3 If the Customer on-supplies the goods to a consumer and:
(a) the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or
consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of Radum’s liability
to the Customer;
(b) the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption,
payment of any amount required under section 274 of the ACL is the absolute limit of Radum’s liability to the
Customer; howsoever arising under or in connection with the sale, installation, use of, storage or any other
dealings with the goods or services by the Customer or any third party.
11.4 If clause 11.2 or 11.3 do not apply, then other than as stated in the Terms or any written warranty statement Radum
is not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or
any other dealings with the goods or services by the Customer or any third party.
11.5 Radum is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party,
howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any
other party, except to the extent of any liability imposed by the ACL.
11.6 The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or
assistance provided by Radum in relation to the goods or services or their use or application.
(b) it has not made known, either expressly or by implication, to Radum any purpose for which it requires the
goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for
the use of the Customer.
11.7 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding,
restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply
of services which cannot be excluded, restricted or modified.
12. Cancellation
12.1 If Radum is unable to deliver or provide the goods or services, then it may cancel the Customer’s order (even if it has
been accepted) by written notice to the Customer.
12.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on Radum once the
order has been accepted.
13. Shortages and Exchanges
13.1 Subject to clauses 13.2 and 13.7, Radum will not be liable for any shortages, damage or non-compliance with the
specifications in the Agreement unless the Customer notifies Radum with full details and description within 7 days
of delivery otherwise the Customer is deemed to have accepted the goods.
13.2 When any shortages, claim for damaged goods or non-compliance with the Agreement specifications is accepted
by Radum, Radum may, at its option, replace the goods, resupply the services or refund the price of the goods or
services.
13.3 Subject to clause 13.6, exchange or store credit for “change of mind” reasons is available on goods within 7 days of
purchase date, provided that the goods:
(a) have not been altered in any way;
(b) have not been used;
(c) are not discontinued goods, or goods no longer stocked by Radum; and
(d) are in their original condition and packaging.
13.4 A restocking fee of 20% of the purchase price applies to goods notified by the Customer to Radum as “not wanted”
or “incorrectly ordered” after 7 days from the original purchase date.
13.5 The Customer is responsible to pay all freight costs associated with return of the goods.
13.6 Subject to clause 13.7, Radum will not under any circumstances accept goods for return or exchange that have
been specifically produced, imported or acquired to fulfil the Agreement.
13.7 If the Customer is a consumer, nothing in this clause 13 limits any remedy available for a failure of the guarantees in
sections 56 and 57 of the ACL.
14. Force Majeure
14.1 Radum is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from
acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts,
accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of
force majeure occurs, Radum may suspend or terminate the Agreement by written notice to the Customer.
15. Miscellaneous
15.1 The law of Victoria from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the
courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
15.2 Radum’s failure to enforce any of these Terms shall not be construed as a waiver of any of Radum’s rights.
15.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be
severed from the Terms, without affecting the enforceability of the remaining terms.
15.4 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known
address of the addressee.
Notices sent by pre-paid post are deemed to be received upon posting.
Notices sent by facsimile or email are deemed received on confirmation of successful transmission.