Caliskan Holding’s Terms and Conditions

By submitting an Account Application, making a Purchase Order or receiving Goods from the Seller, the Client/You agree to be bound to the following Terms and Conditions of Trade. These Terms and Conditions create a security interest in favour of the Seller for the purposes of the Personal Property Securities Act 2009 (Cth).

1. Definitions

In this agreement:

Agreement means these Terms and Conditions of Trade, each Purchase Order delivered by the Client to the Seller for the supply of Goods and any Account Application (as applicable).

Client/Customer/You means the person/company/business buying the Goods as specified in any Agreement, Invoice, Purchase Order or Quotation, and if there is more than one Client is a reference to each Client jointly and severally. This includes the executors, administrators, successors and permitted assignees of that person or company.

Account Application means the application made or to be made by the Client for credit or trade account.

Customer Returns Form means the application form completed by the Customer applying for a return/exchange/credit from Caliskan.

Damaged in Transit means goods that have been damaged while in transit to the Retail Customer.

Dropship means goods being sent directly from Caliskan to the Retail Customer.

Goods means all Goods or Services supplied by the Seller to the Client at the Client’s request from time to time in accordance with a Purchase Order and/or this Agreement (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

Lost in Transit means goods that have been deemed unrecoverable by the courier service.

Nominated Courier means any courier nominated by Caliskan to deliver the Goods to the Customer.

Overdue means any account with Caliskan for money payable that remains unpaid for a period of 7 days or any other period agreed in writing with the Customer and Caliskan.

Price means the Price payable for the Goods as agreed between the Seller and the Client in accordance with clause 5 below.

Purchase Order means any order or request made by the Client for the supply by the Seller of Goods and/or services in any form and includes an oral request for the supply of goods, or an invoice, proposal or file submitted to be processed provided by the Seller at the Client’s request;

Related Body Corporate has the same definition as section 9 of the Corporations Act 2001.

Retail Customer means the Customers end buyer.

Seller/Caliskan means Caliskan International Pty Limited ABN 99805535690, its successors and assignees or any person acting on behalf of and with the authority of Caliskan International Pty Limited.

2. Interpretation

2.1          These Terms and Conditions, any Purchase Order and/or any Account Application will be read and interpreted as a single agreement but if there is any conflict or inconsistency between any Account Application, these Terms and Conditions and/or any Purchase Order, the various parts of the Agreement will be interpreted and applied in the following order:

(a)          firstly, these Terms and Conditions of trade.

(b)          secondly, the Account Application; and

(c)           thirdly, the relevant Purchase Order.

3. General Terms

3.1 Caliskan will supply Goods to the Customer on the terms and conditions set out in this Agreement, providing that the Customer complies with the terms in this Agreement, or as varied by Caliskan from time to time. The Customers acceptance of the Goods will be taken to be acceptance of this agreement.

3.2         This Agreement will continue until terminated by either party by written notice notwithstanding Caliskan may terminate it immediately by denying the supply of Goods to the Customer if the Customer is in breach of any of the conditions of this agreement.

3.3          All orders are subject to approval. A current Account Application is required for new accounts and may be required for existing accounts prior to shipment. Caliskan reserves the right to reject applications without cause or liability.

4. Custom and special orders

4.1          A 50% non-refundable advance payment is required at the time a custom or exclusive order is placed by the client. The remaining 50% balance must be paid prior to delivery

4.2          Once a quotation has been issued, it remains valid for 30 days unless withdrawn by the Seller, after which a revised quotation may be necessary. Any variation to quantities or requested services may result in a variation to the quotation and the quoted price.

4.3          Textile fabrics have some degree of variability. It is acceptable for custom rugs to have dye or textural variations from samples and from dye lot to dye lot.  Sizing may also vary by up to one inch from the specified size. Such variations are not a basis for a defect claim.

4.4          Due to the nature of custom-made rugs no refund or exchange is offered for change of mind.

4.5          Delivery times are estimates only. Caliskan will use its best endeavours to deliver the rug in the estimated time. Any date accepted by Caliskan for delivery of the rug does not constitute a condition or warranty.

5. Price and Payment

5.1          The Price shall be as indicated on invoices provided by the Seller to the Client in respect of the Goods supplied.

5.2          Invoices will be rendered by Caliskan on delivery or upon dispatch of Goods and if credit has been granted the Customer must make payments strictly within 7 days of Caliskan invoice date unless otherwise agreed in writing between Caliskan and the Customer.

5.3          Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation, or any other order forms. If no time is stated, then payment will be due seven (7) days following the date of the invoice.

5.4          Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

5.5        Caliskan is entitled to charge the Customer:

1. any sales tax or GST, stamp duty, taxes or other government levy or charge payable in relation to the sale of Goods; and
2. all freight, transportation and delivery costs for the Goods.

6. Default and Consequences of Default

6.1          If the Client fails to make a payment when due, the Client will pay to the Seller interest on overdue invoices which 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 the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

6.2          If the Client owes the Seller any money the Client shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s Contract default fee, and bank dishonour fees).

6.3          Further to any other rights or remedies the Seller may have under this contract, if a Client has made payment to the Seller by credit  card, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller under this clause 6 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.

7. Title to Goods (including any incidental items supplied as part of any Services)

7.1          The Seller and the Client agree that ownership of the Goods shall not pass until:

1. the Client has paid the Seller all amounts owing to the Seller; and
2. the Client has met all its other obligations to the Seller.

7.2          Receipt by the Seller 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.

7.3          It is further agreed that:

1. until ownership of the Goods passes to the Client in accordance with clause 7, that the Client is only a bailee of the Goods and must return the Goods to the Seller on request.
2. the Client holds the benefit of the Client’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
3. the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.
4. the Client irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods.
5. the Seller may recover possession of any Goods in transit whether or not delivery has occurred.
6. the Client 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 the Seller.
7. the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

8. Delivery

8.1          The Seller will ensure that all Goods are suitably packed (for transit and storage), clearly marked and delivered at the delivery destination stated in the Agreement or otherwise in accordance with the reasonable instructions given by the Client.

8.2          The Seller will at all times endeavour to deliver the Goods ordered for specified dates but cannot and will not be held responsible or liable for material shortages supplied by others and/or delays for deliveries or materials. Failure to meet delivery deadlines cannot be constituted as a breach of the Agreement and will not enable a cancellation of the order by the Client or allow any claim for delay, compensation, or damages to be sought from the Seller.

8.3          The delivery times made known to the Client are estimates only. The Seller is not liable for any loss, damage or delay occasioned to the Client or its customers arising out of late or non-delivery.

8.4          The Customer must notify Caliskan of any shipping errors or goods damaged in transit within seven (7) days of receipt of shipment. No discussion will be entered into after this period. Damaged or defective merchandise will be credited or replaced at the Seller’s discretion, with like products in good condition as soon as possible after receipt and inspection.

8.5          The Customer must complete a Customer Returns Form for assessment by Caliskan prior to sending back any Goods. If the Customer returns stock to Caliskan without written approval, the Customer will be responsible for any freight or postage incurred and Caliskan will not assess, replace or credit the Customer’s account for the Goods returned.

8.6          The Customer must upon delivery of Goods by a Nominated Courier, ensure that all Goods on the consignment note have been delivered. In the event of discrepancy between the consignment note and the number of Goods delivered, the Customer must record the discrepancy with the Nominated Courier. If Goods are accepted from the Nominated Carrier without the Customer noting the missing Goods, Caliskan will not be held liable and the Customer will not make any claim against Caliskan for Goods not received.

8.7          Caliskan will use its best endeavors to comply with the Customers requests in terms of time frame for delivery. Any date accepted by Caliskan for delivery of the Goods is an estimate and does not constitute a condition or warranty of the contract.

9. Risk

9.1          Risk in any Goods to be supplied to the Client passes to the Client immediately upon the earlier of:

1. the Seller’s notification that those Goods are available for collection; or
2. upon delivery to the delivery address advised by the Client, whether or not the Client collects the Goods or refuses delivery.

9.2          The Client must insure the Goods on or before Delivery.

9.3          If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms and Conditions of Trade by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

10. Retail Customer Claims

10.1        If a Retail Customer returns an item to the Customer which they deem to be faulty the Customer may only claim through Caliskan if it is deemed to be a manufacturing fault. The Customer must complete and return to Caliskan a Customer Returns Form.

10.2        Caliskan will only review manufacturing faults when the Retail Customer returns Goods within 14 days of the purchase date. Wherever possible the item will be replaced. If a replacement cannot be made than a credit will be issued against the Customer’s account. Caliskan reserves the right to inspect returned product. Caliskan will inspect the product and contact the Customer with a result on the Retail Customer claim within a reasonable time. Any freight or postage incurred to return goods to Caliskan is the responsibility of the Customer.

11. Dropship Customers

11.1 Where Caliskan has offered a Dropship service to a Customer, the Customer agrees to be further bound and agree to the following conditions:

11.2 Shipping Costs: Quoted shipping costs are per item – combined shipping is not available as billing occurs on a per consignment basis. Caliskan cannot offer rebates or refunds for shipping costs under any circumstances. Quoted shipping costs do not include on forwarding or rural/remote charges which must be paid by the Customer.

11.3        Shipping Times: Upon receipt of complete shipping details in the required CSV format, Caliskan will dispatch orders within 1-5 business days or as agreed. Caliskan will endeavour to ship items within this specified timeframe, however shipping times will be governed by clause 8.7 of this contract.

11.4 Issues with Delivery: The Customer is responsible for the freight cost of the, pickup and replacement of goods if necessary, under the following circumstances:

1. insufficient contact information was provided, and items were Returned to Sender to warehouse; and
2. the Retail Customer has changed their mind.
3. Customer error or misrepresentation of a product.
4. Retail Customer has given Authority to Leave (ATL) and Caliskan has obtained a proof of delivery.
5. Incorrect item specified on the CSV Shipping file or PO.
6. insufficient contact information was provided, and items were Returned to Sender; and
7. the Retail Customer has given ATL and Caliskan has obtained a proof of delivery.

11.5        Insurance: Caliskan does not insure items dispatched direct to Retail Customers. Caliskan may offer a discount on a replacement item in the event that an item is deemed Lost in Transit, or Damaged in Transit.

11.6        Time limitations and conditions for claims:

1. Retail Customer change of mind must be made within 5 days of item receipt, items must be undamaged, unworn and in original packaging. Restocking fee of 20% will be charged and deducted from any credit applied to the clients account. Items received by Caliskan, damaged due to incorrect packaging, soiled, or worn will not be eligible for refund, credit or replacement.
2. Claims for courier damage will be governed by clause 8.4 and 8.6 of this Agreement subject to 8.7.
3. Manufacturing faults claims will be governed by clause 10.2 of this agreement with the words, “14 days” replaced with “5 days”.

12. Disputes

12.1 Any Disputes in relation to the Goods must be communicate to the Seller in writing within 24 hours of Delivery. In the event that no communication is received by the Seller within the 24-hour

Period, the Goods are deemed to be accepted by the Client.

12.2 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.

12.3                        If a dispute arises relating to this Agreement, the parties agree to negotiate to settle the dispute before litigation.

13. Termination

13.1 In addition to any other rights which Caliskan may have under these Conditions, Caliskan may suspend deliveries on Goods should any monies, due by the Customer to Caliskan remain unpaid from the date that payment is due. 

13.2 Termination for convenience: either party may terminate the Agreement in whole or in part for any reason at any time by providing 10 business days’ notice to the other party.

13.3 Termination for cause: either party may terminate the Agreement in whole or in part with immediate effect if the other party:

1. breaches a material provision of the Agreement and the breach is incapable of remedy.
2. breaches a material provision of the Agreement and fails to remedy it within 5 days of receiving a notice detailing the breach and requesting that it be rectified: or
3. has a change in control or management which the other party reasonably considers may result in harm to its property, goodwill or reputation.

13.4        Effect of Termination: upon termination of the Agreement:

1. the Client will pay the Seller for Good and/or Services accepted in accordance with the Agreement.
2. if a party terminates for convenience under clause 13.3 above, that party must pay for any reasonable costs that the other party incurs that are directly attributable to the termination or reduction, provided that the party substantiates these costs; and
3. where the Client has made payment in advance to the Seller for Goods and/or Services not yet delivered or supplied to the Client, the total of that payment must be repaid by the Seller to the Client within 14 days of termination.

13.5        Any termination of this agreement will not affect any accrued rights or remedies of either party.

14. Personal Property Securities Act 2009 (“PPSA”)

14.1        In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

14.2        Upon assenting to these Terms and Conditions of Trade in writing the Client acknowledges and agrees that these Term and Conditions of Trade 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 Client to the Seller for Services – that have previously been supplied and that will be supplied in the future by the Seller to the Client.

14.3        The Client undertakes to:

1. 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 the Seller may reasonably require to.
   1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register.
   2. register any other document required to be registered by the PPSA; or
   3. correct a defect in a statement referred to in clause 14(a)(i) or 14(a)(ii).
2. (b) indemnify, and upon demand reimburse, the Seller 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.
3. (c) not register a financing change statement in respect of a security interest without the prior written consent of the Seller.
4. (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 the Seller.
5. (e) immediately advise the Seller of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.

14.4        The Seller and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

14.5        The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

14.6        The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

14.7        Unless otherwise agreed to in writing by the Seller, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

14.8        The Client must unconditionally ratify any actions taken by the Seller under clauses 14.3 to 14.5.

14.9        Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

15. Security and Charge

15.1        In consideration of the Seller agreeing to supply the Goods, the Client and its shareholders and Directors and guarantors, agree to charge 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 Client and its shareholders and Directors either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

15.2        The Client and its shareholders and Directors and guarantors indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.

15.3.      The Client and its shareholders and Directors and guarantors irrevocably appoints the Seller and each director of the Seller as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause including, but not limited to, signing any document on the Client’s behalf.

16. Guarantee

16.1        The Guarantor unconditionally guarantees to the Seller:

1. the due and punctual payment by the Client of:

1. all moneys due and payable from time to time or to become due and payable from time to time, to the Seller by the Client with regard to or in connection with these Terms and Conditions of Trade and/or the quotation; and
2. all other moneys which the Client either alone, jointly, severally, or jointly and severally with any other person, now or from time to time is, or becomes actually or contingently liable to pay to the Seller with regard to or in connection with these Terms and Conditions of Trade and/or the quotation; and

(b)          the due and punctual observance and performance by the Client of all its other liabilities, obligations and agreements (whether monetary or non-monetary, present or future, actual or contingent) to the Client pursuant to or in connection with these Terms and Conditions of Trade and/or the quotation.

17. Indemnity

17.1        The Client and its shareholders and Directors indemnifies and keeps indemnified the Seller, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Client) against the Seller or, for which the Seller is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these terms of trade.

17.2        This includes, but is not limited to, any legal costs incurred by the Seller in relation to meeting any claim or demand or any party/party legal costs for which the Seller is liable in connection with any such claim or demand.

17.3        This provision remains in force after the termination of these Terms and Conditions of Trade.

18. Privacy Act 1988

18.1        The Client agrees for the Seller to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Seller.

18.2        The Client agrees that the Seller may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

1. to assess an application by the Client; and/or
2. to notify other credit providers of a default by the Client; and/or
3. to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
4. to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.

18.3        The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.

18.4        The Client agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other agreed purposes or required by):

1. the provision of Goods; and/or
2. analysing, verifying and/or checking the Client’s credit payment and/or status in relation to the provision of Goods; and/or
3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
4. enabling the collection of amounts outstanding in relation to the Goods.

18.5        The Seller may give information about the Client to a CRB for the following purposes:

1. to obtain a consumer credit report.
2. allow the CRB to create or maintain a credit information file about the Client including credit history.

18.6 The information given to the CRB may include:

1. 1. personal information as outlined in 18.1 above.
2. 2. name of the credit provider and that the Seller is a current credit provider to the Client.
3. 3. whether the credit provider is a licensee.
4. 4. type of consumer credit.
5. 5. details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested).
6. 6. advice of consumer credit defaults, 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 Client no longer has any overdue accounts and the Seller has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
7. 7. information that, in the opinion of the Seller, the Client has committed a serious credit infringement.
8. 8. advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).’

18.7        The Client shall have the right to request (by e-mail) from the Seller:

1. a copy of the information about the Client retained by the Seller and the right to request that the Seller correct any incorrect information; and
2. that the Seller does not disclose any personal information about the Client for the purpose of direct marketing.

18.8        The Seller will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.

18.9        The Client can make a privacy complaint by contacting the Seller via e-mail. The Seller 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 Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

19. General

19.1        The failure by either party to enforce any provision of these Terms and Conditions of Trade 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 of Trade shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

19.2        These Terms and Conditions of Trade and any contract to which they apply shall be governed by the laws of the state in which the Seller has its principal place of business and are subject to the jurisdiction of the courts in that state.

19.3        Where applicable nothing in this agreement is intended to have the effect of contracting out of the Competition and Consumer Act 2010 (CCA). The Seller shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Seller of these Terms and Conditions of Trade (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

19.4        Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

19.5        Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent, and that this agreement creates binding and valid legal obligations on them.

19.6        The Customer agrees to notify Caliskan in writing of any change of ownership of the Customer within seven (7) days of such change and indemnifies the supplier against any loss or damage incurred by it as a result of the Customers failure to notify Caliskan.

19.7        This agreement will be governed in accordance with the laws in force in New South Wales.