1. Defined Terms

1.1 In these Terms and Conditions:

“Delivery Address” means the delivery address of the Customer stated in an Order; “Contract” means the contract resulting from the acceptance by smartBIM of an Order in accordance with clause 2.3; “Credit Application Form” means smartBIM credit application form by which a Customer can apply for credit account with smartBIM in respect of the sale of Goods; “Customer” means any person who enters into a Contract with smartBIM for the sale and purchase of Goods and services; “Delivery Time” means the time of delivery of the Goods either to the Delivery Address of the Customer or to the carrier of the Customer; “GST” means any amount paid or payable under any GST law as that expression is defined in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth); “Loss” means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental; “Quotation” means a formal statement setting out the estimated costs of a particular job or service; “Order” means an order placed with smartBIM for the sale and delivery of Goods and Services; “Order Confirmation” means a written confirmation of the Order by smartBIM that may be in the form of an invoice provided to the Customer by facsimile transmission or email or delivered to the Customer upon delivery of the Goods; “Price” means the price for the Goods specified in the Order Confirmation, or the price set out in any specific quotations by smartBIM for the supply of Goods at a particular price, which quotation shall be open for acceptance within the period stated in a quotation or if no period is stated, within 30 days after the date of a quotation; “Goods and Services” means the goods and services supplied or to be supplied by smartBIM to the Customer from time to time pursuant to the Contract; “Terms and Conditions” means these terms and conditions as amended from time to time by smartBIM.

1.2 In these Terms and Conditions (including defined terms), unless the context otherwise requires:

(a) The singular includes the plural and vice versa and each gender includes each other gender.

(b) Headings are included for convenience only and do not affect the interpretation of these Terms and Conditions.

2. Formation of Contract of Sale of Goods and Services

2.1 These Terms and Conditions supersede all previous terms and conditions imposed by smartBIM and may only be varied in writing by smartBIM.

2.2 Unless previously withdrawn, a quotation is valid for 14 days, stock availability and/or such other period as stated it. A quotation is not to be constructed as an obligation to sell but merely an invitation and no contractual relationship shall arise until the Customer ‘s order has been accepted by smartBIM.

2.3 Each Order will constitute an offer by the Customer to acquire Goods and Services from smartBIM upon and subject to the Terms and Conditions and to the exclusion of all other terms and conditions and notwithstanding any qualifications of the Terms and Conditions (including any terms and conditions contained in any purchase Order or other document of the Customer) unless expressly agreed by smartBIM in writing.

2.4 Quoted prices are subject to variation by smartBIM without notice.

2.5 The Customer agrees to maintain in confidence all quoted pricing and will abide by restrictions of use and disclosure of smartBIMs Confidential Information. smartBIM reserves its rights to render the quotation as void if confidentiality information regarding pricing is disclosed.

2.6 A contract will only be made between smartBIM and the Customer for the sale and purchase of Goods and Services if and upon the acceptance of the Order by smartBIM by the provision to the Customer of an Order Confirmation.

2.7 smartBIM shall not be bound by any condition attached the Customer’s order, acceptance of Quotation and/or Purchase order, unless such conditions are expressly accepted by smartBIM in writing. The Customer acknowledges that such conditions are expressly negated.

2.8 An Order may only be made by the Customer to smartBIM, In writing, by facsimile transmission or by electronic data interchange.

2.9 The Contract resulting from the provision of the Order Confirmation cannot be cancelled by the Customer without smartBIM’s written consent and smartBIM may at its discretion impose a reasonable cancellation charge.

3.1 Unless otherwise agreed to in writing by smartBIM, the Customer agrees to pay smartBIM the Price in full of Goods and Services on receipt of invoice issued. All goods and services being Financed through a third party will not be released to the Customer until as such time full payment has been received by smartBIM. All training courses must be paid in full 7 days before commencement of a training course.

3.2 If smartBIM agrees to extend credit to the Customer, the Customer agrees to the terms stated in the Credit Application Form as terms and conditions of the Contract. Notwithstanding any credit terms given to the Customer, smartBIM may decline to sell Goods and Services on credit to the Customer at any time without notice to the Customer.

3.3 Payments are to be made via cash, cheque, bank cheque, EFTPOS and Credit Card. American Express incurs a 1.8% surcharge and Visa/MasterCard incurs a 1.8% surcharge (inc GST). Payments are too made without deduction or set off, whether legal or equitable.

3.4 The Price is GST and freight /delivery charge exclusive unless stated otherwise. The Customer must pay to smartBIM any GST which smartBIM is liable to pay in respect of supplies made by smartBIM under these Terms and Conditions.

3.5 All financial institutions duty, stamp duty, Government charges, or direct costs of any kind associated with the operation of the customer’s account will be charged to the customer. Furthermore, the customer will be charged an administration fee of $100 for each dishonoured cheque.

3.6 Prices, fees and charges are subject to change without notice.

3.7 Unless otherwise stipulated, all quotes/prices are in Australian Dollars (AUD).

Interest will be charged on all overdue accounts at the rate prescribed by the Queensland Law Society (Standard contract default rate) from the due date to the date that the account is paid in full and should the account be referred to a collection agency the Applicant shall pay a 15% collection fee plus all legal costs on an indemnity basis.

5.1 The Customer acknowledges and agrees that no title to the Goods shall pass to the Customer until payment in full of all monies owed to smartBIM has been received.

5.2 Risk of Loss or damage to the Goods will pass to the Customer at the time of dispatch from smartBIM’s nominated warehouse. smartBIM shall not be responsible for any loss or damage of Goods in transit. Insurance for Goods in transit to the Customer will not be arranged by smartBIM. The Customer shall be responsible for the insurance of Goods in transit, which insurance shall take account of these conditions.

5.3 Until the Price has been paid in full:

(a) legal ownership of Goods shall remain with smartBIM.

(b) smartBIM may enter the Customer’s premises (or any premises where the Goods are located) without notice and without liability for trespass or any resulting damage and may retake possession of Goods. All costs and expenses incurred by smartBIM as a result in taking action to retake possession of Goods, together with transportation and storage charges, must be paid by the Customer to smartBIM on demand.

(c) smartBIM may keep or resell any repossessed Goods.

(d) if the Customer resells Goods without first having paid smartBIM for them, the Customer shall hold that part of the proceeds of the sale which represents the invoiced price of Goods in a separate identifiable account as the beneficial property of smartBIM and shall pay the amount to smartBIM on request.

(e) notwithstanding anything contained in sub clauses 5.3 (a)-(d), smartBIM shall be entitled to maintain its legal rights against the Customer for the Price of the Goods. The Customer acknowledges and agrees that smartBIM may apply to register a security interest in the Goods at any time before or after delivery of the Goods. The Customer waives its right under section 157 of the Personal Property Securities Act 2010 PPSA to receive notice of any verification of the registration. If the Customer defaults in the performance of any obligation owed to the AIPAL under these Terms and Conditions or any other agreement with smartBIM to supply Goods to the Customer, smartBIM may enforce its security interest in any Goods by exercising all or any of its rights under these terms or the PPSA. To the maximum extent permitted by law, the Customer and smartBIM agree that the following provisions of the PPSA do not apply to the enforcement by smartBIM of its security interest in the Goods: sections 95,125, 130,135,142 and 143.

Despite anything to the contrary contained herein of any other rights which the smartBIM may have howsoever:

(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to smartBIM or smartBIM’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that smartBIM (or smartBIM’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been meet.

(b) Should smartBIM elect to proceed in any manner in accordance with this clause and/or its sub-clause, the Customer and/or Guarantor shall indemnify smartBIM from and against all smartBIM’s costs and disbursements including legal costs on an indemnity basis. The Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint smartBIM or the smartBIM’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.

The grant of any credit limit or facility is an indication only of smartBIM’s intention at that time. smartBIM may at any time or at its discretion vary and/or withdraw any credit limit or facility without liability to smartBIM or any other party.

8.1 Any time-frames quoted by smartBIM for the delivery of Products are estimates only.

8.2 smartBIM shall not be liable for delay or any failure or inability to deliver. smartBIM shall not be liable for any loss or damage whatever due to failure by smartBIM to deliver the goods (or any of them) promptly or at all.

8.3 The failure of smartBIM to deliver shall not entitle the Customer to treat this contract as repudiated.

8.4 smartBIM reserves the right to withdraw an Order Confirmation at any time before the Delivery Time and will not be liable for any loss whatsoever arising from its failure to deliver any or all of the Goods.

8.5 Any term of the Contract relating to the quantity of Goods is not the essence of the Contract. smartBIM reserves the right to make partial deliveries against an Order and to invoice each partial delivery separately and the Customer cannot reject Goods on the basis of partial delivery.

8.6 Where Goods remain in the possession of smartBIM after the Delivery Time (including where the Customer fails for whatever reason to take delivery of the Goods), smartBIM is entitled to charge the Customer for all Loss occasioned by the Customer not accepting delivery together with any costs and Loss in respect of the carriage, care and custody of the Goods.

8.7 Unless otherwise agreed by smartBIM, all Goods will be delivered to the Delivery Address.

8.8 The Customer must ensure that it or its employees or agents are in attendance at the Delivery Address at the agreed time or agreed period for delivery to accept delivery of the Goods and to acknowledge receipt upon the consignment note or invoice accompanying the Goods.

8.9 smartBIM may arrange for the storage and carriage of Goods by carriers, contractors or sub-contractors. Notwithstanding any specific instructions given by the Customer as to the mode of carriage of Goods, in the exercise of its absolute discretion smartBIM may have any Goods carried or forwarded by any method which it deems fit.

8.10 Unless otherwise agreed in writing by smartBIM from time to time, the cost of freight of Goods from the smartBIM warehouse shall be paid by the Customer.

8.11 Unless otherwise specified in a quotation, Goods shall be packed in smartBIM standard packing. The cost of any special packing and packing materials required by the Customer shall be at the Customer’s expense.

9.1 The Customer must inspect the Goods within 5 business days of the Delivery Time and if no inspection is so made, is deemed to have accepted the Goods.

9.2 The Customer has no claim for shortages, defects or any Loss in respect of Goods apparent on inspection unless:

(a) A complaint is made to smartBIM within 5 business days of the Delivery Time specifying the shortage or defect; and

(b) smartBIM is, after receipt of the complaint, permitted to inspect the Goods, have Goods inspected by manufacture, and/or investigate the complaint.

9.3 If a complaint is not made to smartBIM in accordance with clause 9.2, the Goods delivered will be deemed to be in accordance with the Contract, and smartBIM will not be held liable for any future Losses regarding the use or application of the Goods, and the Customer is bound to pay for them accordingly.

9.4 smartBIM shall not be under any obligation to accept Goods returned by the Customer. smartBIM will only accept the return of Goods from the Customer where:

(a) The Customer has complied with clause 9.2 and smartBIM is satisfied as to the claim by the Customer; and

(b) The Goods are returned to smartBIM in the same un-opened condition as when first delivered to the Customer.

10.1 The Customer shall at no time cancel the whole or part of any order placed without smartBIM prior written approval. The Customer shall not return any Products without first providing to smartBIM an original proof of purchase.

10.2 Where the Customer has ordered incorrect Goods, an incorrect item number for Goods is used, an incorrect unit of issue or pack size is Ordered, an Order exceeds the Customer’s requirements, an incorrect account number is used, or an Order is duplicated, the Customer may after receiving written authority from smartBIM, return the Goods to smartBIM subject to the Goods being returned in the same condition as when first delivered to the Customer and subject to the Customer bearing the freight costs of the delivery and return of the Goods.

10.3 Notwithstanding any other provisions of these Terms and Conditions, the Customer shall not return any products which have been custom made, custom cut, custom processed or custom acquired.

10.4 The Customer shall in all cases pay to smartBIM a restocking fee of 20% of the gross value of all returns.

10.5 Where Goods are returned to smartBIM in accordance with the above provisions smartBIM may issue a credit note in respect of any amounts paid by the Customer in respect of those Goods, less restocking fee and relevant freight costs.

10.6 The Customer agrees that any Training course cancellations made by them, must be in writing and must be made 7 days prior to course commencement date. The Customer also agrees that if it cancels any training within 7 business days of the course commencement date, then smartBIM will only be oblige to provide the Customer with a 50% credit of the total training course price as agreed to. For all training cancelled or postponed within 5 business days prior to course commencement date, full payment will be forfeited.

11.1 The Customer shall rely on its own knowledge and expertise in selecting Products for any purpose and any advice given by or on behalf of smartBIM shall be accepted at the Customer’s risk.

11.2 smartBIM shall not be liable nor responsible for any failure to comply with any requirements of the Customer or any other person (whether relating to manufacture, design, fabrication, installation and/or any other particular intended use of Products) which are not precisely and accurately communicated in writing to smartBIM prior to the Customer entering into a sale contract.

12.1 Legislation such as the Competition and Consumer Act 2010 (Cth) may imply into these Terms and Conditions warranties or conditions or impose obligations which cannot be excluded, restricted or modified and these Terms and Conditions are read subject to such statutory provisions.

12.2 All other conditions, warranties, representations, liabilities, and obligations, whether implied or imposed by statute, including any conditions or warranties as to merchant-ability, fitness for purpose or correspondence with description are excluded to the extent permitted by law.

12.3 In the event that smartBIM breaches its obligations referred to in clause 12.1, to the extent allowed by law, its liability is limited to any one or more of the following, at its election:

(a) The replacement of the Goods or the supply of equivalent goods.

(b) The repair of the Goods.

(c) The payment of the cost of replacing the goods or acquiring equivalent goods; or

(d) The payment of the cost of having the goods repaired.

12.4 The total liability of smartBIM under these Terms and Conditions is, to the extent permitted by law, expressed in this clause 12 and smartBIM will under no circumstances be liable to the Customer for any Loss incurred by the Customer or any other party resulting directly or indirectly out of the supply by smartBIM to the Customer or out of any breach of smartBIM under these Terms and Conditions or out of the negligence of smartBIM.

12.5 Nothing in these Terms and Conditions shall exclude or modify any conditional warranty implied by law where to do so would render these Terms and Conditions void.

12.6 Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

12.7 The Customer agrees to limit any claim it makes to the cost of or of acquiring equivalent products.

13 Force Majeure

13.1 smartBIM shall not be deemed to be in default or breach of any contract as a result of Force Majeure. Force Majeure shall include any cause beyond the reasonable control of smartBIM.

Upon the appointment of an Administrator, Receiver, Liquidator or Trustee in Bankruptcy to the Customer, smartBIM may by notice to the Customer, at its option and without prejudice to another right it may have, suspend or terminate an Order, cease further deliveries and may retain any monies paid by the Customer in relation to the Order and apply such monies against any loss or damage incurred by it in relation to the default by the Customer

Any part of these Terms being whole or part of a clause shall be capable of severance without affecting any part of these Terms.

The Customer agrees that it shall be deemed to have notice of any change to the Terms and Conditions and be bound by any subsequent versions of these Terms and Conditions as they appear on the website www.aipal.com.au whether or not the Customer has actual notice thereof. A copy of any subsequent of these Terms and Conditions may also be obtained, by request, by telephone or email.

17.1 These Terms and Conditions take effect, are governed by and will be construed in accordance with the laws of the State of Queensland, Australia.

17.2 These Terms and Conditions are subject to change without notice.

17.3 The parties agree that any action arising out of, or relating to these terms may only be brought by a court of competent jurisdiction in the State of Queensland, Australia.

17.5 If we do not act in relation to a breach by you of these Terms and Conditions, this does not waive smartBIMs right to act with respect to subsequent or similar breaches.

17.6 You may not assign or transfer any rights or benefits you may receive under these Terms and Conditions to any other person or entity without the prior written consent of smartBIM.

17.7 In reselling, maintaining or installing Goods, the Customer is not smartBIM’s agent or the agent of the manufacturer of Goods.