Terms and Conditions of Supply
These terms and conditions (Terms) apply to website transactions for the supply of goods from NovoFit to the Purchaser.
In these Terms:
- Agreement means an agreement between the NovoFit and the Purchaser for the supply of Equipment constituted by the website, these Conditions and any agreed variation.
- Equipment means the items of equipment specified in the website cart.
- Fees means the prices specified in the website cart, including any fees and charges that are applicable to the supply of Equipment under these Terms.
- Manufacturer means the relevant manufacturer of the Equipment supplied by NovoFit.
- Manufacturer’s Warranty means the terms and conditions of the manufacturer’s warranty (if any) specified by the relevant manufacturer of the Equipment.
- NovoFit, our, us or we means NovoFit Pty Ltd (ACN 006 064 017) as trustee for the NovoFit Unit Trust.
- Purchaser, you and your means the party who purchases the equipment on the website.
- Website cart means the price provided by NovoFit to the Purchaser specifying the details of the equipment that the Purchaser has requested to purchase from NovoFit.
Contract and Term
The Purchaser agrees to purchase and NovoFit agrees to sell the Equipment specified in the Website Cart subject to these Terms.
The specifications of the Equipment are subject to change without notice to the Purchaser.
The Purchaser may enter into the Agreement by executing or payment is made.
Acceptance of the Website Cart by the Purchaser is only valid, and orders for the Equipment will only be placed with the Manufacturer, if accompanied by payment as specified in the Website Cart.
The Agreement has effect on and from acceptance by the Purchaser under clause 2.3.
Delivery, installation and supply of Equipment
NovoFit shall, during its normal business hours, deliver the Equipment at the site specified in the Website Cart.
Any dates specified by NovoFit for delivery are estimates only based on advice from the Manufacturer and freight provider. NovoFit shall not be responsible for any delay or failure to supply the Equipment on the estimated date and NovoFit shall not be liable for any such delay.
NovoFit will not deliver the equipment until payment for the Equipment has been made by the Purchaser in full in cleared funds, or the parties have duly executed the Rental Agreement.
The Fees specified in the Quote for delivery and installation of the equipment are for clear access to a ground floor location with double door access and appropriate delivery pathways, no stairs or staircases and adequate parking within 15 meters of the building access point.
All requests for delivery and installation of the Equipment other than in accordance with clauses 3.3 and 3.4 must be made to NovoFit in writing:
- In the event of delivery to a location other than a ground floor location: at least four weeks prior to the scheduled delivery date set out in the Quote;
- In the event of uncompleted works at the delivery location: at least one week prior to the scheduled delivery date set out in the Quote.
If delivery and installation of the Equipment is required to a location above ground level, the Purchaser must provide and/or make available to NovoFit’s representatives a suitably sized and weight capacity rated lift, forklift access and/or appropriate stairway access.
The Purchaser shall provide all things necessary for the installation of the Equipment as contemplated by this clause 3.
Any additional attendances required by NovoFit necessitated by:
- the Purchaser’s failure to comply with this Clause 3; or
- any other delays caused or contributed to by the Purchaser
will be charged in addition to the total price set out in the Quote.
Any Equipment sold by NovoFit shall be at the Purchaser’s risk as and from delivery to the site specified in the Quote or such other premises directed by the Purchaser, whether title has passed or otherwise. Upon delivery, the Purchaser shall be responsible for any loss or damage to the Equipment howsoever arising. The Purchaser agrees to indemnify NovoFit for any loss sustained in any manner whatsoever by NovoFit in relation thereto.
Property and title in the Equipment (including any software or documentation provided with the Equipment) shall not pass to the Purchaser and NovoFit will retain the legal and equitable title in the Equipment until the Purchaser has made:
- payment in full in cleared funds for the Equipment; and
- payment in full of all other money owing by the Purchaser to NovoFit (whether in respect of money payable under the Rental Agreement, another specific contract or on any other account whatsoever).
Until payment in full of all monies owing has been made to NovoFit, the Purchaser:
- will hold the Equipment on trust for and as bailee for NovoFit; and
- must keep the Equipment in such condition as it was in when supplied, or in such closest condition as can be reasonably maintained.
NovoFit may, whilst it retains title to the Equipment, in its absolute discretion, without prejudice to any of its other rights and without notice, demand the return of the Equipment or retake and resume possession of the Equipment from any site owned or controlled by the Purchaser where the Equipment is stored, installed or in operation, and the Purchaser grants NovoFit, and any of its representatives, employees or agents, an irrevocable licence to enter upon any land or premises to do so without any liability for trespass or for any loss or damage suffered as a consequence of such entry or retaking of possession.
NovoFit may, at any time, register its interest against the Purchaser on the Personal Property Securities Register for any security interest arising out of or evidenced by this Agreement over any Equipment while title in the Equipment remains with NovoFit.
The Purchaser waives the right to receive notices under section 157(1) of the Personal Property Securities Act 2009 (Cth) as amended from time to time.
The Purchaser must not register, or permit to be registered, a financing statement in favour of any person other than NovoFit, over any of the Equipment while title in the Equipment remains with NovoFit.
The Purchaser agrees that where NovoFit retakes possession of Equipment under clause 3.9, NovoFit has the absolute right to sell or deal with the Equipment and to retain the proceeds of any such sale free from any claim from the Purchaser and without prejudice to NovoFit’s rights to claim the balance of all moneys owing to it.
Each part of the Equipment shall be deemed to be a chattel notwithstanding any affixation to any premises.
If any time prior to payment in full the Purchaser commits any breach of its obligations hereunder or suffers an insolvency event then NovoFit may cancel the Agreement and the Purchaser shall deliver up to NovoFit the Equipment or such part thereof as has been delivered. NovoFit shall be entitled to retain any deposit paid by the Purchaser for such Equipment and to recover from the Purchaser any other loss arising as a consequence of the Purchaser’s breach howsoever occasioned.
The Fees will be specified in the Quote and are due and payable by you in accordance with the payment terms set out in the Quote, or on any invoice we provide to you, or as set out in the Rental Agreement, as applicable.
NovoFit will not be required to take any steps under or in respect of this agreement until the deposit payment contemplated by clause 2.3 (or any other initial payment required pursuant to the Quote) has been received by NovoFit in full as clear funds.
In the event that you fail to pay any Fees or expenses by the due date we may charge interest on the amount owing at 2% above the Penalty Interest Rate published from time to time pursuant to Section 2 of the Penalty Interest Rates Act (Vic).
Fees and expenses are exclusive of GST which is payable by you in addition.
Training, maintenance and warranty
NovoFit shall use reasonable commercial efforts to provide the Purchaser’s operators with training in the use and operation of the Equipment at the site as NovoFit deems reasonable and necessary. Any such training shall be the Purchaser’s responsibility to arrange, and shall be at the Purchaser’s cost.
NovoFit will provide manuals for the operation, use and upkeep of the Equipment. The Purchaser acknowledges that the proper observation of the manuals and each and every direction or advice given therein must be proven as a condition precedent to any action being taken against NovoFit whatsoever or howsoever arising concerning the Equipment.
Unless maintenance services are specified in the Quote, the Purchaser acknowledges that the sole obligation for proper maintenance of the Equipment rests with the Purchaser and the maintenance must be performed by properly skilled and trained personnel. The Purchaser further acknowledges that until a maintenance contract is entered into with NovoFit in writing, there shall be no implied agreement placing any obligation whatsoever upon NovoFit to maintain the Equipment in any way.
The Purchaser shall be entitled to the benefit of the Manufacturer’s Warranty (if any) in respect of each item of the Equipment supplied by NovoFit for the duration of the Manufacturer’s Warranty period and in accordance with the terms and conditions of the relevant warranty.
Defects due to wear and tear, negligence, neglect or default on the part of the Purchaser or any third parties are excluded from the Manufacturer’s Warranty.
Equipment covered under a Manufacturer’s Warranty and in need of repair or replacement will be repaired or replaced free of charge upon delivery to NovoFit by the Purchaser. The Purchaser is required to pay the cost of delivery.
Any warranty given does not extend to any Equipment other than that supplied by NovoFit, nor does it extend to Equipment maintained otherwise than by properly trained personnel or interfaced other than in accordance with the conditions specified by NovoFit.
The details of warranty set out in this Clause 6 are in addition to any warranty the Purchaser may have under any law including, if applicable, the Australian Consumer Law.
Warranty claims must be made by the Purchaser in writing to NovoFit via the service link at https://novofit.com.au/service-request-form/ and must include the serial number(s) of the affected Equipment, images and an adequate explanation of the claim.
- You agree to do each of the following:
comply with applicable laws;
- provide us with appropriate access to the site specified in the Quote including to your facilities, equipment, personnel, as is necessary to allow us to deliver, install and commission the Equipment; and
- pay the Fees and expenses when due under clause 4.
You indemnify us from any damage, loss, liability, cost, charge, expense, outgoing or payment of any kind suffered or incurred by us arising out of or in respect of any:
- illness, injury or death of any of the person, and any damage to any tangible or real property caused or contributed to by you, arising out of or in connection with the Agreement;
- breach of the Agreement;
- act or omission of you, your officers, employees and agents, including but not limited to:
- breach of any third party’s intellectual property rights; or
- breach of your obligations in respect of confidential information under the Agreement.
Limitations of Liability
With the exception of clause 8.3, our liability to you for all proven loss and damage arising from a breach of the Agreement, or a claim under common law or tort (including negligence) is limited, in aggregate, to the Fees.
Any representation, warranty, condition or undertaking that would be implied in the Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.
Nothing in these Terms excludes, restricts or modifies any condition, warranty, right or remedy which cannot lawfully be excluded, modified or limited by agreement, including any consumer guarantees set out in the Australian Consumer Law (ACL).
Subject to the ACL, and except as expressly provided to the contrary in these Terms, any guarantee, warranty, representation, statement, undertaking, term or condition, that would be implied by statute, the general law or otherwise, is expressly excluded to the maximum extent permitted by law.
If a warranty or condition is implied by the ACL or other law which may not be excluded, then our liability for any breach of such an implied warranty is limited solely to the repair, the replacement or the supply of substitute goods (or payment of the cost of doing so).
Subject to clause 8.3, to the extent permitted by law, in no event will NovoFit be liable to the Purchaser for loss of profits, downtime costs, loss of revenue, loss of reputation, loss of data, loss of use, loss of goodwill, failure to realise anticipated savings, anticipated profit or revenue or any indirect or consequential loss arising out of or in connection with the Agreement, howsoever caused.
NovoFit is not liable to you for failing to provide the Equipment, unless the failure directly results from a breach of the Agreement, or directly results from our negligence or willful misconduct.
In addition to any other termination right available to us in the Agreement or at law, we may without any liability to you suspend the supply of Equipment and/or terminate the Agreement in whole or in part if:
- you fail to pay any of the Fees by the date due for payment;
- you breach the Agreement; or
- you are a company, you are unable to pay your debts or otherwise become insolvent, or, if you are a person, you are declared bankrupt.
Upon termination or expiry of the Agreement for any reason:
- you must immediately pay us any outstanding Fees that are due to us under the Agreement; and
- each party must return to the other party all confidential information and any material that is the subject of intellectual property rights of the other party, or if not capable of return, destroy it and certify its destruction to the other party.
We may at any time set a credit limit for you and require you to provide or arrange a bond, guarantee or other security for the Fees. You authorise us to the full extent permitted by law, including under applicable privacy laws to give to and obtain from a credit reference organisation or other credit provider, information relating to your creditworthiness and to use that information.
You hereby charge all your property, real and personal, present and future, in favour of NovoFit to secure your obligation to pay any money due and payable under this agreement.
Neither party will be liable to the other party for any delays or errors in its performance, or for non-performance, due to any circumstances beyond its reasonable control including (without limitation) natural events, fire, lightning, earthquake, flood, storm, explosion, industrial dispute or acts of terrorism.
If anything in the Agreement is unenforceable, illegal or void then it is severed and the rest remains in force.
The Agreement will be governed by the laws of Victoria, Australia and each party submits to the non-exclusive jurisdiction of the courts of Victoria, Australia.
A right may only be waived in writing, and must be signed by the party giving the waiver, and no other conduct of a party (including a delay in exercising, relaxation of or failure to exercise the right) operates as a waiver of the right or otherwise prevents the exercise of the right.
The Agreement constitutes the entire agreement between you and us.
The provisions of these Terms which are intended or capable of having effect after the expiration or termination of your Agreement with us (including provisions relating to warranties, indemnities, liability, licence, intellectual property rights and those with respect to payments that are accrued but unpaid at the time of termination) will remain in full force and effect following any suspension, expiration or termination of the supply of Equipment.