Terms & Conditions
The whole of the Agreement between Dimark Commercial Pty Ltd trading as Semak ABN 60 082 624 959 ("Semak") and the Applicant referred to in the Credit Application (“Customer”) are those set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (“Terms”). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By receiving delivery and/or supply of all or a portion of the goods, materials and/or parts and/or labour and/or services supplied by Semak under these Terms ("Goods"), the Customer shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all others.
- Credit Terms
- Payment is due on or prior to thirty (30) days from the date of invoice rendered in respect of the supply of the Goods unless otherwise stated in writing by Semak. Semak may charge liquidated damages at a rate of 2.5% per month if payment is not received by the due date.
- Semak's express or implied approval for extending credit to the Customer may be revoked or withdrawn by Semak at any time.
- Semak is entitled to set-off against any money owing to the Customer amounts owed to Semak by the Customer on any account whatsoever.
- Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 2.5, and then to principal.
- The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Semak for enforcement of obligations and recovery of monies due from the Customer to Semak.
- Quotations and Pricing
- Prices charged for Goods will be according to a current quotation for those Goods. Otherwise, they will be determined by Semak by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). Semak will use its best endeavours to notify the Customer of price changes but bears no liability in respect of this.
- Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature.
- Unless otherwise specified by Semak, the prices exclude:-
- Any statutory tax, including any GST, duty or impost levied in respect of the Goods and which has not been allowed for by Semak in calculating the price.
- Costs and charges in relation to insurance, packing (other than the standard packing of Semak), crating, delivery (whether by road, rail, ship or air) and export of the Goods.
- Minimum Order Value
For an order of less than $20.00, Semak reserves the right either to not accept an order or to charge the Customer a handling fee.
- Delivery and Supply
- Any times quoted for delivery and/or supply are estimates only and Semak shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Goods, by reason of any delay in delivery/supply or dispatch. Semak reserves the right to stop supply at any time if the Customer fails to comply with the Terms.
- If the Customer directs that delivery of the Goods be staggered over different times or to different addresses from those specified in the Credit Application, then the Customer:-
- shall be liable for any additional cost, charge and expense incurred by Semak in complying with the Customer's direction; and
- shall pay for the whole of the invoiced value of the Goods notwithstanding the staggered deliveries.
- Such action shall be deemed to be delivery to the Customer.
- The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer's premises or when Semak notifies the Customer that the Goods are available for collection.
- If the Customer is unable or fails to accept delivery of the Goods, Semak may deliver it to a place of storage nominated by the Customer and, failing such nomination, to a place determined by Semak. Such action shall be deemed to be delivery to the Customer. The Customer shall be liable for all cost, charge and expense incurred by Semak on account of storage, detention, double cartage/delivery or similar causes.
- Semak and its subsidiaries reserves the right to refuse collection or make a delivery if the safety of the driver and others involved is at risk. For more information please see our notification regarding Changes to the Chain of Responsibility (CoR) laws.
- Shipping Terms & Conditions
- Drop Shipping: Customers are reminded that it is Semak Policy as stated in our Terms and Conditions that all deliveries be made to our customers. It is at our discretion whether we offer to arrange drop shipping of articles to your customer. We will ensure that the item is correctly labelled as per your instructions. Please be advised that Semak bears no responsibility for drop shipped items once they leave our premises. A connote number and tracking information will be supplied on request however as you can appreciate we cannot control the delivery and signing for your item.
- Lost Items: We bear no responsibility for items that are lost or incorrectly signed for.
- Redelivery: Where the first delivery is unsuccessful a redelivery charge of $35.00 will be charged.
- Time of Delivery: We will endeavour to meet your timing requirements, however please note that we use major national companies that have structured run sheets and may not be able to meet special requests eg. AM / PM or between 3-5pm. Drivers are unable to wait for customers or call customers prior to delivery due to company policy. Delivery is beyond Semak’s control once the item leaves our premises, therefore we accept no consequential loss where delivery is outside the customer’s requirements
- Disputes / Missing Items: Due to the nature of our business we do not have a dedicated person to manage your freight. We are happy to supply connotes and the freight company details for you to track and trace your item.
- Insurance: Freight companies are not common carriers and many do not offer insurance. As per our Terms and Conditions, we advise that you have insurance to cover loss.
- Packaging: Care is taken to ensure that equipment is adequately packaged to prevent damage. Large equipment is palletised or crated for protection.
- Until full payment has been made for all Goods, and any other sums in any way outstanding from the Customer to Semak from time to time:-
- All sums outstanding become immediately due and payable by the Customer to Semak if the Customer makes default in paying any other sums due to Semak, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these Terms.
- The property in the Goods shall not pass to the Customer and the Customer shall hold the Goods as bailee for Semak (returning the same to Semak on request). The Goods shall nevertheless be at the risk of the Customer from the time of delivery/supply and the Customer must insure the Goods from the time of delivery/supply.
- The Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of Semak provided that there shall be no right to bind Semak to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by the Customer for the Goods (or any portion of them) shall be held on trust for Semak pursuant to the fiduciary relationship.
- In the event that the Customer incorporates or transforms the Goods (or any portion of them) into any other goods or products produced by the Customer (or a third party), then the Customer must hold a proportion of any payment ("relevant proportion") received by the Customer for such goods or products on trust for Semak. The Customer expressly acknowledges that the relevant proportion shall be equal to the dollar value of the Goods incorporated or transformed and the Customer further acknowledges that any part payment (not exceeding the relevant proportion) received by the Customer for such goods or products is received as payment first of the relevant proportion.
- Semak is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods without liability for trespass or any resulting damage.
- In addition to any lien to which Semak may, by statute or otherwise, be entitled, Semak shall in the event of the Customer's insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in Semak's possession (although all or some of such property or goods may have been paid) for the unpaid price of any Goods sold or delivered to the Customer under this or any other contract.
- Until full payment has been made for all Goods, and any other sums in any way outstanding from the Customer to Semak from time to time:-
- Availability of Stock
Any order that cannot be fulfilled on its receipt will automatically be back ordered and processed when stock becomes available unless it is the Customer's stated standard policy not to accept back orders or the Customer specifically marks its order, "Do Not Back Order". Deliveries at any time are subject to availability of stock and Semak will not be liable for any charges due to product unavailability.
Subject to Clause 3.3 and unless otherwise agreed, Semak will ship by the least expensive route and carrier to all points. If the purchaser chooses a route with a higher charge than the route of Semak's choice for shipment, Semak will charge the difference to the Customer.
- Returns, Cancellations and Claims
- The Customer shall not return any Goods to Semak without obtaining prior authorisation from Semak. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including product descriptions, quantity, date of return and the Customer's name and address must also be enclosed. Freight charges must be paid by the Customer. All Goods must be returned in the original packaging and the Customer shall be responsible for all damage incurred during return shipment. A credit note will be issued by Semak only after Goods returned are either collected by Semak's authorised representative or agent or returned to it by the Customer as set out above. The Customer shall not deduct the amount of any anticipated credit from any payment due to Semak but must await receipt of a credit note.
- All goods returned must be of merchantable and reasonable quality such that the goods are complete in their original packaging, not shop-soiled, are not price ticketed and are still listed in the current price list.
- If Semak accepts the return of any Goods that have been ordered, Semak may charge the Customer twenty five per cent (25%) of the invoice price as a handling fee with freight costs and risk remaining the responsibility of the Customer.
- No cancellations or partial cancellation of an order by the Customer shall be accepted by Semak unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Semak, will indemnify Semak against all loss, without limitation. Cancellation will not be accepted on goods that are not regular stock which are in the process of manufacture or ready for shipment.
- All complaints, claims, or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with the Customer’s purchase order must be submitted by the Customer to Semak in writing within seven (7) business days of the date of the invoice rendered for the supply of the Goods. Otherwise, the Customer shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Customer’s purchase order.
- Privacy Act 1988 (“Privacy Act”)
To enable Semak to assess the Customer’s application for credit, the Customer authorises Semak:-
- To obtain from a credit reporting agency a consumer or commercial credit report containing personal information about the Customer and its guarantors pursuant to Section 18K(1) of the Privacy Act; and
- To obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities, and
- To give to a credit reporting agency information including identity particulars and application details
AND in accordance with Section 18N(1) of the Privacy Act the Customer authorises Semak to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.
The Customer understands that information can be used for the purposes of assessing its application for credit (Section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.
The Customer must notify Semak in writing within seven (7) days of:-
- Any alteration of the name or ownership of the Customer.
- The issue of any legal proceedings against the Customer.
- The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
- Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to Semak for all Goods supplied to the new owner by Semak until notice of any such change is received.
No warranties except those implied and that by law cannot be excluded are given by Semak in respect of Goods supplied. Where it is lawful to do so, the liability of Semak for a breach of a condition or warranty is limited to the repair or replacement of the Goods, the supply of equivalent Goods, the payment of the cost of repairing or replacing the Goods or acquiring equivalent Goods, as determined by Semak.
Please return the product to Semak for warranty repair as per our Terms and Conditions see below Semak Australia. Warrant each new SEMAK appliance manufactured by SEMAK to be free from defects in materials or manufacturing process for a period of 1 years from the date of original purchase (unless otherwise stated). Should defects due to faulty materials or manufacturing process develop within the warranty period, the appliance will be repaired without charge providing all conditions of this warranty are observed.
- Proof of Purchase and Warranty card must be retained and available on request.
- This Warranty is void if the equipment has been damaged due to misuse/neglect or is used for a purpose for which it was not suited; and no repairs, alterations or modifications have been attempted by other than Semak or its authorised Service Agent.
- Semak Australia. Reserves the right to reject a claim for warranty if service is required due to misapplication, improper installation, inadequate wiring, and incorrect voltage conditions. Under no circumstances shall SEMAK or its agents bear responsibility for consequential damages of any kind.
- Where required by Statute or local authority, equipment must be installed by qualified person in accordance with all relevant regulations. Failure to do this will void product warranty.
- Cost of transport of any appliance or part to and from SEMAK or its Service Agent is to be paid by the owner.
- A charge will be made where failure is due to neglect, abuse or accidental damage on the part of the operator, or when no fault can be found or the fault is due to causes outside the control of Semak.
- The above does not preclude the purchaser from their statutory rights as a consumer.
Please note that it is company policy not to provide verbal confirmation that a repair will be covered under warranty until the unit has been assessed by Semak or Authorised Semak Service Agent. A work order number will be provided on request after the above Terms and Conditions have been met in the event that the appliance is covered by warranty.
If you would like to make a Warranty Claim, please complete our Service & Repair Request Form.
- Force Majeure
Semak shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Goods impossible, where all money due to Semak shall be paid immediately and, unless prohibited by law, Semak may elect to terminate the Agreement.
- Equitable Charge
The Customer as beneficial owner and/or registered proprietor now charges in favour of Semak all of the Customer's estate and interest in any real property (including but not limited to any applicable land owned by the Customer named or described as the Customer's Street Address in the Credit Application if applicable) ("Land") to secure payment of accounts rendered by Semak to the Customer for the delivery and/or supply of the Goods including interest payable on these accounts and costs (including legal costs on a full indemnity basis) incurred by Semak and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.
- Failure to Act
Semak's failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or Semak's failure to exercise any right or remedy available under these Terms or at law, or Semak's failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of Semak's right to demand timely payment of future obligations or strict compliance with the Terms.
- Legal Construction
- These Terms shall be governed by and interpreted according to the laws of Victoria and Semak and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
- Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.
- Retention of Title
- As long as the Customer owes Semak any part of the sale price for Goods supplied at any time Semak shall retain the legal title in all Goods supplied and not yet used or resold. The Customer shall keep such Goods stored separately during the time he has them in such a way that Goods remain identifiable and shall hold such Goods as bailee for Semak. When such Goods are filled or used, even with loss of identity, legal title to the resultant product shall vest in Semak.
- If the Customer resells the Goods aforementioned before all moneys payable by the Customer to Semak have been paid, the Customer agrees that it holds the proceeds of re-supply of the Goods on trust for and as agent for Semak immediately when they are receivable or received, such proceeds to be kept in a separate account.
- It is further accepted, acknowledged and agreed that:
- shall the retention of title clause herein constitutes a security agreement for the purposes of the PPSA which creates a Security Interest in all Goods including any Commingled Goods. It is the intention of Semak and the Customer that upon registration of the Company’s Security Interest on the PPSR a Purchase Money Security Interest will result; and
- shall until such time as ownership of the Goods shall pass from Semak to the Customer, Semak may give notice in writing to the Customer to return the Goods to Semak. Upon such notice the Customer‘s rights to obtain ownership or any other interest in the Goods shall cease.