1.1 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.2 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.3 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using KOYA Group’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.4 “Customer” means the person/s buying the Goods, end user (where applicable), and/or any approved re-seller for the purposes of re-supply as specified in any invoice, document or order, or hiring Equipment, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.5 “Goods” means all Goods (including but not limited to, DVD’s, skin and personal care products etc) or Services supplied by KOYA Group to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.6 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.7 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between KOYA Group and the Customer in accordance with clause 5 below.
1.8 “KOYA Group” means Dance4me Pty Limited T/A KOYA Group, its successors and assigns or any person acting on behalf of and with the authority of Dance4me Pty Limited T/A KOYA Group.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and KOYA Group.
2.3 Any instructions received by KOYA Group from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by KOYA Group shall constitute acceptance of the terms and conditions contained herein.
2.4 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on the Service Provider’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
2.5 These terms and conditions may be meant to be read in conjunction with KOYA Group’s Forms, and where the context so permits, the terms ‘Goods’ or ‘Services’ shall include any supply of Goods, as defined therein.
2.6 Goods are supplied by KOYA Group only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
2.7 The Customer acknowledges and accepts that:
(a) any warranty provided by KOYA Group is non-transferable;
(b) the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, KOYA Group reserves the right to vary the Price with alternative Goods as per clause 5.2.;
(c) subject to clause 11, no returns will be accepted in respect of any skin or personal care products in the event that the item has been opened;
(d) any misuse, misrepresentation or any other action that negatively impacts KOYA Group’s brand (including but not limited to, marketing campaigns etc) which is deemed to damage and/or tarnish the reputation of KOYA Group’s brand, may result in KOYA Group mitigating that damage by refusing the Customer the right to continue to represent KOYA Group; and
(e) any alleged claims of resultant from the use of any supplied Goods must be reported to KOYA Group’s management in writing as soon as reasonably practicable. KOYA Group reserves the right to inspect any items attributed to the claim and have the items tested by an independent laboratory before any public claims, statements or dissemination of information in any format including social media.
2.8 Where the Customer is to return Goods to KOYA Group’s warehouse, the Customer shall bear the costs of returning the Goods unless otherwise agreed by KOYA Group.
2.9 The Customer shall direct any technical question to KOYA Group’s Customer Service Department: KOYA Group, PO Box 253, Oyster Bay, NSW 2225, Australia or telephone +61 2 7501 0543
2.10 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3.1 The Customer acknowledges and agrees that:
(a) KOYA Group does not guarantee the website’s performance or availability of any of its Goods; and
(b) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and
(c) there are inherent hazards in electronic distribution and as such KOYA Group cannot warrant against delays or errors in transmitting data between the Customer and KOYA Group including orders, and you agree that to the maximum extent permitted by law, KOYA Group will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders.
3.2 KOYA Group reserves the right to terminate your order if it learns that you have provided false or misleading information, interfered with other users or the administration of KOYA Group’s Services, or violated these terms and conditions.
4.1 The Customer shall give KOYA Group not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by KOYA Group as a result of the Customer’s failure to comply with this clause.
5.1 At KOYA Group’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by KOYA Group to the Customer; or
(b) the Price as at the date of delivery of the Goods according to KOYA Group’s published price list; or
(c) KOYA Group’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days and subject to stock-on-hand levels.
5.2 KOYA Group reserves the right to change the Price if a variation to KOYA Group’s quotation is requested. Variations will be charged for on the basis of KOYA Group’s quotation, and will be detailed in writing, and shown as variations on KOYA Group’s invoice. The Customer shall be required to respond to any variation submitted by KOYA Group within ten (10) working days. Failure to do so will entitle KOYA Group to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.3 At KOYA Group’s sole discretion, a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by KOYA Group, which may be:
(a) before delivery of the Goods;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) for approved wholesale accounts, payment shall be due thirty (30) days following the date of any invoice given to the Customer by KOYA Group.
5.5 Payment may be made by credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and KOYA Group.
5.6 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by KOYA Group nor to withhold payment of any invoice because part of that invoice is in dispute.
5.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Delivery of Goods
6.1 The Customer acknowledges and agrees that KOYA Group will not deliver any Goods to a PO Box address, except in exceptional circumstances.
6.2 Delivery of the Goods shall take place when the Goods have been delivered by KOYA Group or KOYA Group’s nominated carrier to the nominated delivery address in accordance with clause 6.4 below.
6.3 At KOYA Group’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Customer’s account.
6.4 Where it is arranged that KOYA Group’s nominated carrier is to deliver the Goods then the Customer shall need to choose one of two following delivery options. Either:
(a) the Customer shall pay for a premium delivery service whereby delivery of the Goods shall only be deemed to have taken place when KOYA Group’s carrier delivers the Goods to the nominated delivery address and the Customer (or their nominated agent) has physically signed for the delivery; or
(b) it shall be the Customer’s express responsibility to make all necessary arrangements to ensure that they (or a third party acting their behalf) is able to take delivery of the Goods whenever they are tendered for delivery by KOYA Group’s carrier. Where this option (b) is chosen as the preferred delivery method then the Customer expressly acknowledges and agrees that if no person is there to receive the Goods when they are tendered for delivery that KOYA Group’s carrier may (at the Customers sole risk) leave the Goods at the delivery address nominated, and that the Customer shall not be entitled to make any claim against either the carrier or KOYA Group for any subsequent loss of, or damage to, those Goods.
6.5 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this Contract.
6.6 KOYA Group may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.7 Any Goods on back-order may be delivered at a later date.
6.8 If delivery is delayed as a consequence of the Customer’s instructions, or lack thereof, then KOYA Group may at is sole discretion, store the Goods for the Customer and the Customer shall be liable for all storage costs charged or incurred by KOYA Group and in the event that the Goods are stored elsewhere all cartage charges incurred by KOYA Group.
6.9 The failure of KOYA Group to deliver shall not entitle either party to treat this Contract as repudiated.
6.10 KOYA Group shall not be liable for any loss or damage whatsoever due to failure by KOYA Group to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of KOYA Group.
6.11 General delivery of Goods takes between seven (7) to ten (10) working days within Australia, 2-4 weeks for International delivery or as determined by the carrier. If the Goods have not been received by the Customer after this time frame, then the Customer should contact KOYA Group immediately.
6.12 Any time specified by KOYA Group for delivery of the Goods is an estimate only. The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. KOYA Group will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. In the event that the Customer is unable to take delivery of the Goods as arranged then KOYA Group shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, KOYA Group is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by KOYA Group is sufficient evidence of KOYA Group’s rights to receive the insurance proceeds without the need for any person dealing with KOYA Group to make further enquiries.
7.3 If the Customer requests KOYA Group to leave Goods outside KOYA Group’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
7.4 Where KOYA Group gives advice, recommendations, information, assistance or service to the Customer or the Customers agent, regarding the Goods or Services then it is given in good faith and KOYA Group shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Customer relying on the same.
7.5 The Customer acknowledges and agrees it is their responsibility to accurately measure the ceiling length so that the correct sized Goods are ordered and delivered to the Customer. In the event the Customer requires an extension on the Goods, this will be charged as a variation to the Price as per clause 5.2.
7.6 In the event the Customer wants to purchase Goods for use in a commercial manner, the Customer must first obtain written approval or consent from KOYA Group. Approval may be granted or withheld by KOYA Group for any reason and may be subject to further Terms and Conditions. In the event the product is to be used for commercial purposes, the Customer warrants to KOYA Group that:
(a) only trained, industry professionals will use the Goods; and
(b) use of the Goods will at all times be adequately supervised and regulated; and
(c) the Customer or any other person using the Goods for athletic / sporting use, dance performance, aerial / gymnastics training, skin tattoo aftercare; hereby indemnifies KOYA Group against any injury, loss or damage. This waiver should be construed as a risk warning and is given as a risk warning in accordance with the provision of the Civil Liability Act 2002 (NSW). Particularly should the recreational activity involve an obvious risk of physical harm.
7.7 KOYA Group shall not be held responsible for any damage caused to the Goods in relation to storage or using the Goods.
7.8 KOYA Group shall not be held responsible for any damage to property or injury to persons or third party during the use of the Goods.
7.9 The Customer acknowledges and agrees that the Goods cannot be used on broken skin, open wounds or ingested. KOYA Group shall not be held liable for any damage or injury caused as a result of this.
7.10 The Customer warrants to KOYA Group that every person that uses the Goods or intends to use the Goods:
(a) has the required level of mental capacity to use the Goods; and
(b) will not use the Goods while they are under the influence of any drug which impairs capacity including alcohol, pharmaceutical preparations or any other substance; and
(c) have read the Product Instructions prior to use; and
(d) will comply with the Product Instructions and the safety precautions contained therein; and
(e) will use the Goods at their own risk; and
(f) will not use the Goods outside the indicated use as listed on the packaging; and
(g) is capable of making the above statements and
(h) waives and releases any and all claims whatsoever to the fullest extent to the law whether for personal injury, damage, losses and/or death which may result from the use of the Goods.
7.11 The Customer acknowledges and agrees that KOYA Group’s website may contain hyperlinks to websites operated by other parties. KOYA Group may provide third parties with products to sell or promotional materials to promote their Goods. KOYA Group do not control such websites or third-party promotions/activities and shall take no responsibility for, and will not incur any liability in respect of their activities. KOYA Group’s inclusion of such hyperlinks to any websites or third-party contacts does not imply any endorsement of views, statements or information contained in such websites/promotions.
7.12 The Customer accepts and acknowledges that the Goods supplied by KOYA Group are designed for indoor storage. Any damage to the Goods from being stored outside may void any applicable warranty pertaining to the Goods under clause 11.
8.1 KOYA Group and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid KOYA Group all amounts owing to KOYA Group; and
(b) the Customer has met all of its other obligations to KOYA Group.
8.2 Receipt by KOYA Group of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
8.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 8.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to KOYA Group on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for KOYA Group and must pay to KOYA Group the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) KOYA Group shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for KOYA Group and must pay or deliver the proceeds to KOYA Group on demand.
(e) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of KOYA Group and must sell, dispose of or return the resulting product to KOYA Group as it so directs.
(f) the Customer irrevocably authorises KOYA Group to enter any premises where KOYA Group believes the Goods are kept and recover possession of the Goods.
(g) KOYA Group may recover possession of any Goods in transit whether or not delivery has occurred.
(h) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of KOYA Group.
(i) KOYA Group may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Customer to KOYA Group for Services – that have previously been supplied and that will be supplied in the future by KOYA Group to the Customer.
9.3 The Customer undertakes to:
(a) 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 KOYA Group may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, KOYA Group for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of KOYA Group;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of KOYA Group;
(e) immediately advise KOYA Group of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.4 KOYA Group and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by KOYA Group, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Customer must unconditionally ratify any actions taken by KOYA Group under clauses 9.3 to 9.5.
9.9 Subject to any express provisions to the contrary (including those contained in this clause 9), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10.1 In consideration of KOYA Group agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Customer indemnifies KOYA Group from and against all KOYA Group’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising KOYA Group’s rights under this clause.
10.3 The Customer irrevocably appoints KOYA Group and each director of KOYA Group as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.
Warranties and Returns, Competition and Consumer Act 2010 (CCA)
11.1 The Customer acknowledges and accepts that due to the manufacturing process that small imperfections to the aesthetic appearance may occur and shall not be considered a defect. Where Goods fall within such guidelines, all associated costs with inspection of the Goods shall be borne by the Customer (including, but not limited to repackaging and/or return freight costs).
11.2 The Customer must inspect the Goods immediately on delivery and must within forty-eight (48) hours of delivery notify KOYA Group in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow KOYA Group and/or KOYA Group’s approved reseller to inspect the Goods.
11.3 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
11.4 KOYA Group acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
11.5 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, KOYA Group makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. KOYA Group’s liability in respect of these warranties is limited to the fullest extent permitted by law.
11.6 If the Customer is a consumer within the meaning of the CCA, KOYA Group’s liability is limited to the extent permitted by section 64A of Schedule 2.
11.7 If KOYA Group is required to replace the Goods under this clause or the CCA, but is unable to do so, KOYA Group may refund any money the Customer has paid for the Goods.
11.8 If the Customer is not a consumer within the meaning of the CCA, KOYA Group’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty as specified in the “Warranty against Defects” documentation provided to the Customer by KOYA Group in respect of the Goods supplied from the date of order in accordance with clause 6 of KOYA Group’s Terms and Conditions of Trade and at KOYA Group’s sole discretion any expressed warranty will cease subject to:
(i) opening of Goods & removing any Hygiene seal; or
(ii) one month for new Goods; or
(iii) as otherwise specified; and
(iv) any general warranty conditions which are also available via KOYA Group’s website.
(b) limited to the value of any warranty card provided to the Customer by KOYA Group at KOYA Group’s sole discretion;
(c) limited to any warranty to which KOYA Group is entitled, if KOYA Group did not manufacture the Goods;
(d) otherwise negated absolutely.
11.9 Subject to this clause 11, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 11.1; and
(b) KOYA Group has agreed that the Goods are defective; and
(c) the Goods are returned within fourteen (14 days at the Customer’s cost (if that cost is not significant);
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible; and
(e) in the original packaging materials.
11.10 Notwithstanding clauses 11.1 to 11.9 but subject to the CCA, KOYA Group shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) any damage owing to the Goods owing to environmental conditions such as humidity, rain, dirt, exposure to salt, minerals, sun, sand, extreme temperatures or other environmental factors;
(c) the Customer using the Goods for any purpose other than that for which they were designed;
(d) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(e) the Customer failing to follow any instructions or guidelines provided by KOYA Group;
(f) any misuse, abuse, unauthorised repair, improper handling or common damage resulting from extreme force;
(g) fair wear and tear including cosmetic wear, any accident, or act of God.
11.11 Subject to clause 11.10,in relation to discounted and clearance Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the Goods, either:
(a) prior to delivery; or
(b) upon delivery for online orders and must within forty-eight (48) hours of said delivery notify KOYA Group in writing of any unanticipated evident defect/damage; and
(c) KOYA Group warrants that if any subsequent defect becomes apparent and is reported to KOYA Group within the specified time as per sub-clause 11.8(a)(ii) (time being of the essence) then KOYA Group will either (at KOYA Group’s sole discretion) replace or refund the Goods.
11.12 KOYA Group may in its absolute discretion accept non-defective, unopened, new Goods for return, in which case KOYA Group may require the Customer to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
11.13 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
11.14 KOYA Group will not accept the return of any DVD’s unless they are defective and comply with the provisions of clause 11.1.
11.15 Notwithstanding anything contained in this clause if KOYA Group is required by a law to accept a return then KOYA Group will only accept a return on the conditions imposed by that law.
12.1 Where KOYA Group has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of KOYA Group. Under no circumstances may such designs, drawings and documents be used without the express written approval of KOYA Group.
12.2 The Customer agrees that KOYA Group may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which KOYA Group has created for the Customer.
12.3 In the event KOYA Group gives approval in writing for the Customer to use any imagery derived from products, materials, websites, CD Roms, DVDs, movies, books and any other materials then KOYA Group logo must be clearly visible.
12.4 In the event the Customer uses any pictures of dancers/athletes/brand representatives/infuencers then the Customer acknowledges and agrees that the names must be credited. The Customer agrees they shall contact KOYA Group in this instance to obtain the pictures or the details.
Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at KOYA Group’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Customer owes KOYA Group any money the Customer shall indemnify KOYA Group from and against all costs and disbursements incurred by KOYA Group in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, KOYA Group’s contract default fee, and bank dishonour fees).
13.3 Further to any other rights or remedies KOYA Group may have under this Contract, if a Customer has made payment to KOYA Group, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by KOYA Group under this clause 13 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
13.4 Without prejudice to KOYA Group’s other remedies at law KOYA Group shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to KOYA Group shall, whether or not due for payment, become immediately payable if:
(a) any money payable to KOYA Group becomes overdue, or in KOYA Group’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by KOYA Group;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14.1 Without prejudice to any other remedies KOYA Group may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions KOYA Group may suspend or terminate the supply of Goods to the Customer. KOYA Group will not be liable to the Customer for any loss or damage the Customer suffers because KOYA Group has exercised its rights under this clause.
14.2 KOYA Group may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice KOYA Group shall repay to the Customer any money paid by the Customer for the Goods. KOYA Group shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.3 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by KOYA Group as a direct result of the cancellation (including, but not limited to, any loss of profits). Where the cancellation occurs after the Goods have been dispatched to the Customer, the Customer shall be liable for all associated costs in the return of the Goods to KOYA Group. Should the Goods be damaged during such return to KOYA Group, then KOYA Group shall retain the payment for the Goods paid by the Customer to cover the costs of the Goods. The Customer acknowledges and accepts that all freight costs are non-refundable as they are paid to a third party.
14.4 Cancellation of orders for Goods made or ordered to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
15.1 All emails, documents, images or other recorded information held or used by KOYA Group is Personal Information, as defined and referred to in clause 15.3, and therefore considered Confidential Information. KOYA Group acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). KOYA Group acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by KOYA Group that may result in serious harm to the Customer, KOYA Group will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
15.2 Notwithstanding clause 15.1, privacy limitations will extend to KOYA Group in respect of Cookies where the Customer utilises KOYA Group’s website to make enquiries. KOYA Group agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to KOYA Group when KOYA Group sends an email to the Customer, so KOYA Group may collect and review that information (“collectively Personal Information”)
15.3 The Customer agrees that KOYA Group may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
15.4 The Customer consents to KOYA Group being given a consumer credit report to collect overdue payment on commercial credit.
15.5 The Customer agrees that personal credit information provided may be used and retained by KOYA Group for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
15.6 KOYA Group may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
15.7 The information given to the CRB may include:
(a) Personal Information as outlined in 15.3 above;
(b) name of the credit provider and that KOYA Group is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults (provided KOYA Group is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and KOYA Group has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of KOYA Group, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
15.8 The Customer shall have the right to request (by e-mail) from KOYA Group:
(a) a copy of the Personal Information about the Customer retained by KOYA Group and the right to request that KOYA Group correct any incorrect Personal Information; and
(b) that KOYA Group does not disclose any Personal Information about the Customer for the purpose of direct marketing.
15.9 KOYA Group will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
15.10 The Customer can make a privacy complaint by contacting KOYA Group via e-mail. KOYA Group will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
16.1 KOYA Group warrants that Goods are manufactured and supplied from their third-party supplier, for supply to all Customers shall meet all safety regulations and standards as defined with such Goods and is eminently suitable for public use and thereby compliant with Australian Standards.
16.2 KOYA Group recommends that a patch test be done preferably twenty-four (24) hours prior to the Customer using the Goods to ensure that no allergic reaction occurs, Where the Customer decides not to have such a patch test done, KOYA Group shall not be held responsible for any reaction the Customer may suffer as a result from the use of the Goods.
16.3 In conjunction with clause 16.2, the Customer agrees that KOYA Group shall not be liable for any damage or loss including personal injury, death, sickness, inconvenience, or expense (including loss of income) as a result of KOYA Group providing the Goods.
Service of Notices
17.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
17.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
18.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which KOYA Group has its principal place of business, and are subject to the jurisdiction of the courts in New South Wales.
18.3 Subject to clause 11,KOYA Group shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by KOYA Group of these terms and conditions (alternatively KOYA Group’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
18.4 KOYA Group may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
18.5 The Customer cannot licence or assign without the written approval of KOYA Group.
18.6 KOYA Group may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of KOYA Group’s sub-contractors without the authority of KOYA Group.
18.7 The Customer agrees that KOYA Group may amend these general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing.These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for KOYA Group to provide Goods to the Customer.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc., (“Force Majeure”) or other event beyond the reasonable control of either party.
18.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.