Opus Terms and Conditions
In these conditions :
- “Company” means PURPLE LINE PTY LTD ACN 147 825 250 of 22 Mills Road, Braeside, Victoria (including its successors, assigns, subsidiaries, affiliates and associates) which is the seller of the goods.
- “Customer” means the Customer of the goods as nominated on a Purchase Order.
- “Force Majeure Event” means an event which is beyond the reasonable control of the party affected, whether foreseeable or otherwise, and which could not have been prevented by the party affected exercising reasonable diligence and includes an act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning strike, storm, tempest, drought, war or pandemic (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection, explosion, government intervention, act of public enemy, sabotage, malicious damage, terrorism, civil unrest; contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel, confiscation, requisition, expropriation, prohibition, embargo, damage to property by or under the order of any government authority, strikes at a national level or industrial disputes at a national level, or any failure of the internet or telecommunications services, any failure of public service, absence of transport facilities, absence of raw material supplies, plant breakdown or failure of plant to perform to expected specifications.
- “Goods” means the goods and/or services as nominated on a Purchase Order made out to the Company at any given time.
- “PPSA” means the Personal Property Securities Act 2009 (Cth).
- “Price” means the purchase price for the Goods as set out in the Purchase Order.
- “Purchase Order” means the order for purchase of the goods made out to the Company by the Customer in the form approved by the Company from time to time, including in the form of the Opus New Vehicle Contract (if applicable), but excluding any of the Customer’s terms and conditions that may be annexed or attached to the order.
- “Security Interest” has the meaning under the PPSA.
2. Terms of sale
- The Company sells, and the Customer purchases, the Goods on these terms and conditions, including any other terms incorporated by reference or made available by hyperlink (Terms).
- By submitting a Purchase Order to the Company, the Customer makes an offer to enter into a contract with the Company subject to these Terms and the Purchase Order.
- Unless previously withdrawn, Company’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within 30 days only after its date. The Company reserves the right to refuse any order based on this quotation within 7 days after the receipt of the order. Prices quoted refer to the entire quotation and are subject to change by the Company if only part of quotation is then ordered.
- The Purchase Order is confirmed, and the contract between the parties is formed, when the Company accepts the Purchase Order by notice in writing to the Customer. In the absence of any written acknowledgement, the Purchase Order is confirmed, and the contract between the parties is formed, when the Company delivers the Goods to the Customer.
- The Company reserves the right, but is not obliged, to:
- refuse any Purchase Order;
- limit the sales of the Goods to any person, geographic region or jurisdiction;
- limit the quantities of any Goods per person, per household or per order; or
- discontinue any Goods at any time.
The Company may exercise these rights on a case-by-case basis. Any Purchase Order restrictions may applied to the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address.
- If there are any inconsistencies between the Terms and the Purchase Order, the Purchase Order will prevail to the extent of the inconsistency.
- If the Customer has a trading account, the terms of their credit account application are intended to be read together with these Terms, and the terms of their credit account application shall prevail over these Terms to the extent of any inconsistency.
- The descriptions, illustrations and performances contained in catalogues, price lists, packaging and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods.
- Any storage, installation, maintenance or other guidelines given by the Company are estimates only. The Company is under no liability for damages for failure of the Goods notwithstanding adherence to said guidelines unless specifically guaranteed in writing. Any such written guarantees are subject to recognised tolerances.
- All Goods to be supplied by the Company to the Customer are as described on the Purchase Order agreed by the Company and the Customer and the description on such purchase order as modified as so agreed prevails over all other descriptions including any specification or enquiry of the Customer.
- Unless otherwise stated all Prices quoted by the Company are net, inclusive of Goods and Services Tax (GST). Prices are quoted in Australian dollars.
- Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of wages, cost of materials and other charges affecting the cost of production ruling on the date is made. Prices are subject to change without notice.
- If the Company makes any alterations to the Price or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Customer’s account.
- At the Company’s sole discretion, a deposit may be required at the time of order. The deposit may be non-refundable (in whole or in part) in the circumstances set out in clause 13(e).
- Any claim or dispute gives no right to the Customer to suspend or delay payment of the invoice.
- Coupon codes and promotional offers are valid for a limited time only. Coupon codes and promotional offers are not transferable, may not be resold or redeemed for cash. Only one coupon code or promotional offer can be used each time and therefore cannot be combined with other coupon codes or promotional offers.
- The Customer’s financial services provider or the payment processor may charge administration fees, currency conversion fees, merchant fee or other fees on purchases of any Goods online and on any refunds that the Company provides in accordance with these Terms. The Company is not responsible or liable for any such fees or charges.
- Unless otherwise agreed, the Customer may pay the Price:
- in accordance with the terms of their credit application (if applicable); or
- cash on delivery without an account.
- Notwithstanding clause 5(a), the Company may require full payment of the Price prior to delivery of the Goods as a condition of accepting the Purchase Order. All Purchase Orders made online are payable in full on submission of the Purchase Order.
- Payment may be made by:
- bank cheque;
- credit card – VISA or Mastercard;
- electronic funds transfer; or
- such other method as approved by the Company.
Additional charges may apply depending on the payment method selected.
- If any payment is not made by the Customer to the Company on the due date thereof:
- the Customer will forfeit the deposit paid under clause 4(d), and the deposit will be released to the Company and will become non-refundable;
- the Company will charge interest at the rate of 2% higher than the rate specified in the Penalty Interest Rate Act 1983 (Victoria) per month calculated on daily rests on all overdue accounts until such time as payment is made in full;
- the Company reserves the right, and without prejudice to its other rights hereunder and at law, to cancel orders or to suspend deliveries of other goods until such payment has been made; and
- all monies owing to the Company including all monies owing to the Company for goods sold shall become immediately due and payable and the Customer shall indemnify the Company against all costs (including Solicitor and own client costs, commercial agents, commissions, freight, surcharges, fees, insurances, accounting costs, loss of profit and all interest) incurred by the Company as a result of such default in the action taken by the Company in respect of the same.
- If GST is payable on the supply of the Goods or any payment made under or by reference to or in connection with these Terms, the Customer must also pay the GST as additional consideration to the Company. This clause does not apply to the extent that the consideration for the taxable supply is expressly agreed to be GST inclusive.
- Shipping and handling costs will be added to the Purchase Order total prior to payment. Purchase Orders are generally dispatched within 5 business days.
- The cost of any special packing and/or packing materials used in relation to the Goods are at the Customer’s expense notwithstanding that such cost may have been omitted from any quotation.
- The delivery times made known to the Customer are estimates only and the Company is not liable for late delivery or non-delivery.
- The Company is not liable for any loss, damage or delay occasioned to the Customer or its customers arising from late or non-delivery of the goods.
- The Company may at its option deliver the Goods to the Customer in any number of instalments unless there is an endorsement on the Purchase Order to the effect that the Customer will not take delivery by instalments.
- If the Company delivers any of the goods by instalments, and any one of those instalments is defective for any reason:
- it is not a repudiation of the contract of sale formed by these conditions; and
- the defective instalment is a severable breach that gives rise only to a claim for compensation.
- If any Goods are not in stock at the time of delivery, the Company may offer the Customer the following options:
- deliver the remaining Goods to the Customer and deliver the unavailable product when it comes back into stock;
- supply an agreed substitute Goods; or
- refund you the cost of the unavailable Goods.
- The Customer must arrange for the Goods to be accepted on delivery by a person 18 years or older. If delivery is delayed due to:
- the Customer’s unavailability or refusal to accept our products (or if the Customer does not accept delivery of our products within two (2) weeks of our first delivery attempt); or
- the Customer fails to provide delivery instructions within 14 days’ of the Company’s request for such instructions.
the Company may:
- charge the Customer for storage fees up until the date of successful delivery; or
- cancel the Purchase Order (in which case the Company will refund you the Price paid for the Goods, excluding delivery and handling fees which are non-refundable).
- Unless otherwise specified in the Purchase Order, delivery of the Goods is from the Company’s premises.
- The Customer waives any claim for shortage of any Goods delivered if a claim in respect for short delivery has not been lodged with Company within 24 hours of delivery, and then confirmed in writing within 7 days from the date of receipt of Goods by the Customer.
7. Loss or Damage in Transit
- The Company is not responsible to the Customer or any person claiming through the Customer for any loss or damage to the Goods in transit caused by any event of any kind by any person (whether or not the Company is legally responsible for the person who caused or contributed to that loss or damage).
- The Company must provide the Customer with such assistance as may be necessary to press claims on carriers so long as the Customer:
- has notified the Company and the carriers in writing immediately after loss or damage is discovered on receipt of the Goods; and
- lodges a claim for compensation on the carrier within seven (7) days of the date of receipt of the Goods.
8. Warranty Against Defects
- The Company does not provide any warranty against defects whether express or implied. To the extent that any of these conditions purport to provide a warranty against defects, it shall be read down.
- If the Goods are not manufactured by the Company, any warranty against defects of the manufacturer of those Goods is accepted by the Customer and is the warranty against defects given to the Customer in respect of the Goods. The Company will use commercially reasonable endeavours to assign to the Customer on request the benefit of any warranty or entitlement to the Goods that the manufacturer has granted to the Company under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
- Except as provided in these conditions, all express and implied warranties under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Company is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the goods or arising out of the Company’s negligence or in any way whatsoever.
9. Consumer Guarantees
- Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act2010 (Cth)) and which by law cannot be excluded, restricted or modified.
- The Company’s liability for a breach of a guarantee under Div I of Part 3-2 of Schedule 2 of the Competition and Consumer Act 2010 (other than section 51, 52 or 53) for the supply of goods or services not of a kind ordinarily acquired for personal, domestic or household use or consumption is limited to:
- in the case of goods, any one or more of the following:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; or
- in the case of services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
- in the case of goods, any one or more of the following:
- The Company’s liability under s 274 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) for the supply of goods not of a kind ordinarily acquired for personal, domestic or household use or consumption is expressly limited to a liability to pay to the consumer an amount equal to:
- the cost of replacing the goods;
- the cost of obtaining equivalent goods; or
- the cost of having the goods repaired, whichever is the lowest amount.
- To the extent permissible by law, the Customer indemnifies the Company against any unauthorised express or implied warranty or representation under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise made by any agent, employee or representative of the Customer to any third party. For the avoidance of doubt, a warranty or representation will be unauthorised unless the warranty or representation has previously been made by the Company or authorised by it.
10. Returned goods
- Subject to clause 9, the Company is not under any duty to accept Goods returned by the Customer and will do so only on terms to be agreed in writing in each individual case.
- If the Company agrees to accept returned Goods from the Customer in accordance with this clause, the Customer must return the Goods to the Company at the Company’s place of business.
- Goods which are damaged or which were specially manufactured or prepared for the particular Purchase Order are only acceptable for return to the extent required by law.
- The Company may charge the Customer a re-stocking fee for any returned Goods. The fee will be 10% of the Price.
11. Title and Risk
- The risk in the Goods and all insurance responsibility for theft, damage or otherwise passes to the Customer upon dispatch of the Goods.
- The title in the Goods passes to the Customer upon the Company’s receipt of full payment of all sums due and owing by the Customer to the Company, despite the deliver, collection or passing of risk to the Customer.
- Until title to the Goods passes to the Customer, the Company reserves retains the right to enter onto any site or location on which the Goods are located without liability for trespass and retake possession of the Goods, and keep or resell the Goods repossessed under this clause.
- The Customer acknowledges that the Company has a security interest in the Goods unless and until title passes to the Customer in accordance with clause 11(b).
- The Company may register its Security Interest on the PPSA register in any manner it chooses. The Customer will take any steps the Company reasonably requires to perfect or otherwise ensure the enforceability and priority of its Security Interest.
- The Customer indemnifies the Company against any cost, expense, loss or damage suffered or incurred by the Company as a result of the Customer causing or allowing a Security Interest of a higher priority to be created and/or registered in the Goods.
- The Customer:
- irrevocably and unconditionally waives its right to receive any notice from the Company any notice in accordance with section 157(3) of the PPSA;
- acknowledges and agrees that the provisions of section 95 or Chapter 4 of the PPSA are excluded to the fullest extent possible; and
- acknowledges and agrees that the Customer will not disclose information set out in section 275(1) of the PPSA unless section 275(7) of the PPSA applies.
- Purchase Orders for specifically manufactured or prepared Goods cannot be cancelled by the Customer to the extent permissible at law.
- The Customer may not cancel a Purchase Order unless:
- with the consent of the Company in writing and on terms which will indemnify the Company against all losses; or
- the Customer is unable to obtain finance approval for the Goods, subject to the Customer providing the Company with satisfactory evidence of the failure to obtain finance approval.
- Without limiting the Company’s rights:
- if, through circumstances beyond the Company’s control, the Company is unable to effect delivery of the Goods; or
- the Customer commits a breach of these Terms for any reason, and the Customer fails to remedy the breach within 14 days of the date of the Company’s notice to do so,
then the Company may suspend or terminate the Purchase Order (even if it has already been accepted) immediately by written notice to the Customer.
- If the Purchase Order is suspended, the Company will provide the Customer with the revised estimated delivery date as soon as reasonably practicable.
- Upon termination:
- if the Company terminated the Purchase Order under clause 13(c)(i), the Company will refund the deposit paid under clause 4(d) less any amounts payable for the portion of the Purchase Order that the Company has performed; or
- if the Company terminated the Purchase Order under clause 13(c)(ii):
- the Customer will forfeit the deposit paid under clause 4(d) and the deposit will be released to the Company; and
- the Customer will pay to the Company all outstanding amounts yet to be invoiced by the Company for the portion of the Purchase Order that the Company has performed; or
- if the Purchase Order is cancelled by the Customer under clause 13(b):
- no later than 14 days before the estimated time of delivery, the Company will refund any deposit paid by the Customer under clause 4(d) to the Customer; or
- within 14 days of the estimated time of delivery, the Customer will either:
- forfeit the deposit paid under clause 4(d) and the deposit will be released to the Company; or
- pay 10% of the Price of the Purchase Order as liquidated damages, and the Customer acknowledges and agrees that the liquidated damages are a fair and reasonable pre-estimate of the damages likely to be sustained by the Company due to the cancellation of the Purchase Order.
- To the maximum extent permitted by law, or any statutory consumer guarantee contained in, any applicable law, the Company excludes liability arising from or in connection with:
- direct or indirect damages and consequential losses, whether based in contract, tort (including negligence), strict liability or otherwise, suffered as a result of fraudulent credit card use; or
- direct or indirect damages and consequential losses, whether based in contract, tort (including negligence), strict liability or otherwise, suffered as a result of the Customer’s use of the Goods.
- The Customer indemnifies the Company from any claim or demand, including reasonable solicitors’ fees, made by any third-party due to or arising out of the Customer’s breach of these Terms or the documents they incorporate by reference, or the Customer’s violation of any law or the rights of a third party.
- The Customer agrees and acknowledges that the Customer buys the Goods relying solely upon the Customer’s own skill, judgment and evaluation of the Goods.
- The Company is not responsible and accepts no liability for obtaining any permits or licences required under the relevant laws and regulations for the usage of the Goods supplied by the Company to the Customer.
- The Customer agrees that the Company shall not be liable to the extent permissible at law for technical advice or assistance given in good faith for which it is not contractually bound to provide.
16. Intellectual Property
- The copyright and all other intellectual property in the Goods, including labelling and packaging, vested in the Company shall remain vested in the Company, and shall only be used by the Customer at the Company’s discretion.
- Where the Company has designed, specified, or created product design drawings for the Customer, then the copyright in those designs and drawings shall remain vested in the Company, and shall only be used by the Customer at the Company’s discretion.
- Where the Customer has supplied drawings, the Customer shall indemnify the Company for the specifications and design of the Goods (including the copyright, design right or other intellectual property in them). Where any designs or specifications have been supplied by the Customer for manufacture by or to the order of the Company then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
- The Customer authorises the Company to obtain from a credit reporting body credit eligibility information, credit information, credit reporting information, and/or credit worthiness of the Customer if the Customer requires a trading account.
- If the Customer requires a trading account, the Company may provide information about the Customer to a credit reporting body for the following purposes:
- to obtain credit eligibility information, credit information, credit reporting information, and/or credit worthiness of the Customer; and/or
- allow the credit reporting body to create or maintain a credit information file containing information about the Customer.
- The Customer is obliged to observe the utmost confidentiality as regards all technical and commercial information received from the Company under these Terms and the Purchase Order (Confidential Information).
- In relation to such Confidential Information, the Customer will:
- keep the Confidential Information with the utmost diligence and confidentiality and return it to the Company when requested to do so;
- refrain from reproducing, copying, transmitting or revealing the Confidential Information to third parties, unless within the limits explicitly authorised in writing by the Company;
- refrain from applying for patents in relation to the Confidential Information;
- refrain from producing or having third parties produce, or providing third parties with, for any reason, directly or indirectly, products using the Confidential Information;
- to impose and guarantee observance of the obligations deriving from this clause on all officers, employees or contractors of the Customer.
- In the event of violation of the confidentiality and secrecy obligation set out in this Clause, the Customer shall be obliged to pay the Company, as a penalty, the amount equal to 30% of the Goods purchased in a calendar year as a genuine pre-estimate of the damages. This shall, naturally, not affect the Company’s right to obtain compensation for any further damage suffered.
19. Force Majeure
- If the Company is wholly or partially unable to perform its obligations under these Terms because of a Force Majeure Event, then:
- after the Force Majeure Event arises, the Company may notify the Customer via a notice posted on the Company’s website of the extent to which the affected party is unable to perform its obligations;
- the Company will use its reasonable endeavours to mitigate the effect of the Force Majeure Event; and
- the Company will not be liable to the other party for any liability the Customer suffers or incurs as a result of that Force Majeure Event.
- A Force Majeure Event does not relieve a party from liability for an obligation to pay money in a timely manner prior to the occurrence of that Force Majeure Event.
- If a Force Majeure Event occurs and the Company reasonably believes that it will continue for a period of more than 30 days, the Company may take any action reasonably necessary to mitigate the effect of the Force Majeure Event, including:
- suspending or postponing deliveries; or
- terminating these Terms and any applicable Purchase Order, at any time thereafter, by notice to the Customer.
- The contract for sale of the goods is made in the State of Victoria, Australia.
- The parties submit all disputes arising between them to the courts of the State of Victoria, Australia and any court competent to hear appeals from those courts of first instance.
- If any of these Terms are unenforceable, it must be read down so as to be enforceable or, if it cannot be so read down, the term must be severed from these Terms without affecting the enforceability of the remaining terms.
- Nothing in this Agreement is to be construed as creating any relationship of partnership, of principal and agent or of trustee and beneficiary.
- The Company may assign or transfer the benefit of these Terms by providing notice to the Customer.
- This Agreement must not be construed to the disadvantage of a party because that party was responsible for its preparation.
- The Company reserves the right, at any time, by providing notice to the Customer (including by way of a notice posted on the Company’s website), to vary these Terms at its discretion, to ensure:
- compliance with all laws, or any requirements or directions of regulatory authorities; or
- the efficient running of the Company’s business.
- The failure of the Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
- These Terms and any documents incorporated by reference or made available via hyperlink constitutes the entire agreement and understanding between the parties, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms).
These Terms were last updated on 7 May 2020.