1. Quotations and Formation of Contract
(a) All quotations issued by Koenig are valid for a period of thirty (30) days from the date of issue, unless otherwise specified in writing. Koenig reserves the right to withdraw, amend or revise any quotation prior to acceptance. Any pricing, discounts or commercial terms stated in a quotation apply solely during the validity period and are subject to change thereafter.
(b) An order is deemed to be placed when the Customer accepts a valid quotation issued by Koenig (Order), including by signing and returning the quotation, confirming acceptance in writing, or making payment of any required deposit.
(c) Koenig may require a deposit as a condition of considering or accepting an Order. The amount and terms of the deposit will be specified in the relevant quotation or invoice. The deposit is non-refundable except where Koenig does not accept the Order in accordance with clause 1(d). Koenig reserves the right to reject any Order or withdraw any quotation prior to acceptance.
(d) If Koenig does not accept an Order, any deposit paid by the Customer will be refunded in full.
(e) Upon Koenig’s written acceptance of an Order, a binding contract is formed incorporating these Terms and the terms of the accepted quotation (Contract). Any additional or inconsistent terms proposed by the Customer are expressly excluded and shall be of no effect unless expressly agreed in writing by Koenig.
2. Price
(a) The price payable for the Goods shall be the price specified for that item in a written quotation issued by Koenig. In the absence of a written quotation, the applicable price shall be as set out in Koenig’s prevailing standard price list as at the date of delivery, and as stated in the corresponding invoice. Each price applies on a per-item basis only and is not to be aggregated with the price of any other Goods, services or line items for any purpose.
(b) All prices are stated in Australian Dollars (AUD) and are inclusive of Goods and Services Tax (GST), unless expressly stated otherwise.
(c) Unless otherwise agreed in writing or expressly stated in a quotation, all prices are exclusive of transport, freight, insurance, duties, levies, taxes (other than GST), packing, crating, storage, installation, training and any other applicable charges, which shall be payable by the Customer at the rates prevailing at the time of delivery.
(d) Quoted prices are based on the availability and cost of materials at the time of quotation. Where, prior to acceptance of an Order, there is an increase in external supplier or input costs beyond Koenig’s reasonable control, Koenig may notify the Customer of a proposed price adjustment. If the Customer does not agree in writing to the proposed adjustment, Koenig may withdraw the quotation and is not obliged to supply the Goods at the quoted price.
3. Payment
(a) Unless Koenig has agreed in writing to extend credit terms to the Customer, payment for the Goods must be made in full before the Goods are dispatched, delivered or made available for collection.
(b) Credit terms may be offered only for purchases made wholly or predominantly for business or commercial purposes, and are not available where the Goods are acquired for personal, domestic or household use. The Customer warrants that any request for credit is made solely for non-personal, non-domestic and non-household purposes.
(c) Without limiting clause 3(a), Koenig may permit the Customer to enter into credit or finance arrangements with an independent third-party financier. Any such arrangement is strictly between the Customer and the third party, and Koenig is not a party to, nor responsible for, the terms of that arrangement.
(d) Where Koenig has agreed in writing to extend credit, the Customer must pay all invoiced amounts in full, without deduction or set-off, in accordance with the agreed credit terms. Payment is deemed received only upon clearance of funds into Koenig’s nominated bank account.
(e) If the Customer fails to make full payment by the applicable due date specified in 3(a) or 3(d), Koenig may, without prejudice to any other rights or remedies available to it, in its sole discretion:
(i) suspend or cancel delivery of any Goods under the relevant Contract or any other agreement with the Customer;
(ii) charge interest on the overdue amount on a daily basis at a rate of 5% per annum above the prevailing overdraft rate charged by Koenig’s principal bankers, accruing both before and after judgment;
(iii) recover from the Customer all costs and expenses (including legal costs on a solicitor and own client basis) incurred in recovering the outstanding amount;
(iv) report the default to credit reporting agencies; and
(v) withdraw any credit terms previously extended and require payment in full prior to further supply.
(f) Koenig may accept and apply payments from the Customer in respect of any indebtedness, and Koenig will not be bound by any conditions or qualifications attaching to the payments.
(g) Koenig may, at its discretion, vary the Customer’s credit limit or suspend or terminate credit arrangements at any time. Upon suspension or termination of the Customer’s credit arrangements, Koenig may immediately cease supplying Goods on credit, and all further Orders will be supplied only on a payment-before-dispatch/collection basis. Koenig may withhold delivery or collection of any Goods until full payment in cleared funds is received.
(h) All amounts payable by the Customer shall become immediately due and payable, notwithstanding any agreed credit terms, if Koenig determines, acting reasonably, that:
(i) any information provided by the Customer in connection with its credit application is or becomes materially inaccurate or misleading;
(ii) the Customer breaches these Terms or any other agreement with Koenig and fails to remedy such breach within seven (7) days of written notice; or
(iii) the Customer suffers an Insolvency Event, is placed under external administration, or is otherwise unable to pay its debts as and when they fall due.
4. Title
(a) Title to the Goods shall remain with Koenig and shall not pass to the Customer until Koenig has received payment in full, in cleared funds, of all amounts owing in respect of the relevant Goods.
(b) Until title passes to the Customer:
(i) the Customer holds the Goods as fiduciary bailee for Koenig and must keep the Goods in its possession, at its own risk and expense, in good condition and separately stored or otherwise clearly identified as Koenig’s property;
(ii) the Customer must not sell, lease, assign, encumber or otherwise dispose of the Goods without Koenig’s prior written consent; and
(iii) upon request, the Customer must immediately disclose to Koenig the location of any Goods for which payment remains outstanding, and if such Goods have been sold, the Customer must account to Koenig for the proceeds of sale and provide all relevant details.
(c) If the Customer fails to make payment when due, or suffers an Insolvency Event or is reasonably suspected by Koenig to be unable to pay its debts as they fall due, Koenig may, to the extent permitted by law, retake possession of any Goods in which title has not passed. The Customer authorises Koenig and its agents to enter the Customer’s business premises on reasonable notice (except in urgent circumstances) solely for the purpose of repossessing the Goods, and Koenig will act reasonably and minimise disruption in doing so. The Customer indemnifies Koenig against any liability, loss or cost arising from such entry to the extent permitted by law. Koenig may resell any repossessed Goods without further notice.
(d) The Customer acknowledges that Koenig’s retention of title constitutes a security interest, including a purchase money security interest (PMSI), under the Personal Property Securities Act 2009 (Cth) (PPSA). Koenig may register its security interest on the Personal Property Securities Register. The Customer must promptly do all things and execute all documents reasonably required to enable Koenig to register, perfect and enforce its security interest, and to ensure its priority. To the extent permitted by law, the Customer waives its rights to receive any notice or statement under the PPSA, including verification statements, and agrees that sections 95, 118, 121(4), 125, 128, 129(2), 130, 132(3)(d), 132(4), and 135 of the PPSA do not apply. Koenig is not required to comply with sections 142 or 143 of the PPSA.
(e) If, for any reason, Koenig’s retention of title becomes ineffective (including due to the Goods being sold or affixed to other property), the Customer’s obligation to pay for the Goods remains unaffected, and Koenig retains all rights and remedies available to it, including as an unsecured creditor.
5. Risk and Delivery
5.1 Delivery
(a) Delivery shall occur:
(i) when the Goods are delivered by Koenig or its nominated carrier to the delivery address specified by the Customer in the Contract or otherwise agreed in writing (Delivery Address);
(ii) when the Goods are collected by the Customer from Koenig’s premises, as agreed in the Contract; or
(iii) where Koenig has expressly agreed in writing to provide unloading, placing, installation and commissioning services as part of the Contract, upon placing of the Goods at the Customer’s site in accordance with the agreed scope of services set out in the Contract.
(b) Risk in the Goods passes to the Customer upon delivery, as defined in clause 5.1(a).
(c) Where delivery is made to a Third Party or alternative recipient at the Customer’s direction, that party is deemed to be the Customer’s agent for the purposes of delivery.
(d) Koenig may charge a reasonable fee for any special packaging, handling or delivery requirements requested by the Customer.
5.2 Delivery Timing
(a) Koenig will use reasonable efforts to meet any agreed delivery date or schedule, being the date or time for delivery agreed between the parties in the Order or subsequently confirmed in writing by Koenig (Delivery Date). However, Koenig shall not be liable for any loss or damage arising from delay in delivery, except to the extent such delay is caused by Koenig's negligence or wilful default.
(b) Where delivery is delayed due to circumstances beyond Koenig’s reasonable control (including those referred to in clause 5.4), delivery will be effected as soon as reasonably practicable.
5.3 Customer Delay
(a) If the Customer requests a delay or postponement of delivery, it must notify Koenig in writing as soon as practicable prior to the Delivery Date. Koenig may, at its discretion, agree to defer delivery.
(b) Any revised Delivery Date must be confirmed by Koenig in writing.
(c) The Customer shall be liable for all reasonable costs incurred by Koenig as a result of the delay or postponement, including storage, handling, insurance, and redelivery charges.
(d) Storage will be charged at Koenig’s standard rates or at a reasonable rate reflecting actual costs.
(e) If delivery is delayed at the Customer’s request or due to the Customer’s failure to accept delivery for more than seven (7) days from the original Delivery Date, Koenig may issue a final invoice and require payment as if delivery had occurred.
5.4 Force Majeure
(a) Koenig shall not be liable for any failure or delay in delivery or performance caused by events beyond its reasonable control.
(b) Such events include, without limitation: acts of God, fire, flood, war, terrorism, industrial disputes, equipment failure, supply chain disruption, transport delays, port or customs issues, government restrictions, pandemics, or other force majeure events.
(c) In such circumstances, Koenig may extend the time for performance or cancel the Contract, in which case any deposit or prepayment will be refunded less any reasonable costs incurred.
(d) The Customer shall have no claim against Koenig for any such delay or cancellation.
5.5 Unloading and Site Access
(a) Unless otherwise agreed in writing, and subject to clause 5.5(d), Koenig’s delivery obligation is limited to delivering the Goods at the agreed Delivery Address in a location reasonably accessible by the delivery vehicle. The Customer is responsible for unloading the Goods, moving and placing them to their intended location on site.
(b) The Customer must ensure the Delivery Address is safe, accessible, and equipped with appropriate personnel and equipment to receive and handle the Goods.
(c) If the Customer is unable or unwilling to accept delivery at the agreed time and place, it must promptly agree to an alternative delivery arrangement. The Customer shall bear all associated costs, including return, storage, and redelivery charges.
(d) Where Koenig has expressly agreed in writing to provide unloading, placing, installation and commissioning services as part of the Contract, Koenig will be responsible for unloading, placing and installing the Goods in accordance with the agreed scope of services. Nothing in this clause relieves the Customer of responsibility for ensuring that the site is ready for unloading, placing, installation and complies with Koenig’s requirements and standards.
5.6 Claims
(a) The Customer must inspect the Goods upon delivery and notify Koenig in writing of any shortage or damage within 3 business days after delivery of the goods in accordance with clause 5.1(a).
(b) Subject to clause 5.6(a), the Customer is deemed to have accepted the Goods as being in conformity with the Order and free from any apparent damage or defect upon delivery. Thereafter, the Customer’s sole remedies in respect of any defect in the Goods shall be as set out in clause 8.
6. Returns and Cancellation
6.1 Change of Mind
(a) Koenig is under no obligation to accept returns of Goods due to change of mind or for reasons unrelated to a failure of the Goods or Koenig’s error. Any return is subject to Koenig’s prior written approval, granted at its sole discretion. Where Koenig agrees to accept a return, the following conditions apply:
(i) Goods must be in new, unused, and resalable condition, with all original packaging, components, manuals, and accessories intact;
(ii) Goods must be returned within fourteen (14) days of Koenig’s written approval;
(iii) the Customer is responsible for all return freight costs, which may be deducted from any refund or credit; and
(iv) a restocking fee will apply, typically 10% of the invoiced price or $50 (whichever is greater), to cover inspection, repackaging, and administrative costs.
(b) Koenig reserves the right to reject any return that does not comply with the above conditions. If returned Goods are found not to meet the return criteria, Koenig may refuse to issue a credit or may offer a partial credit at its discretion. The Customer shall bear the cost of return or redelivery of such Goods.
6.2 Non-Returnable Items
(a) The following Goods are non-returnable unless they are faulty or not as described in accordance with applicable law:
(i) custom-made Goods or Goods that are not ordinarily manufactured, supplied or held by Koenig in the ordinary course of its business and are produced, procured or manufactured specifically for a Customer Order;
(ii) consumables or wear items as defined in the applicable Warranty Policy;
(iii) Goods sold on a clearance, demonstrator / ex-showroom, consignment or “as is” basis, or otherwise sold as other than new standard stock, where that status is disclosed to or reasonably apparent to the Customer at the time of sale; and
(iv) Goods which, by their nature, cannot be resold as new once opened or used.
(b) Services, once performed (including training, installation, or commissioning), are non-refundable.
6.3 Order Cancellation by Customer
(a) Once an Order has been accepted by Koenig in accordance with clause 1(c), it may not be cancelled by the Customer without Koenig’s written consent.
(b) Koenig is not obliged to agree to any cancellation and may refuse a cancellation request where cancellation would result in Koenig incurring, or being likely to incur, any cost, expense or loss.
(c) Where Koenig agrees in writing to a cancellation, the Customer must pay to Koenig, on demand, all costs, expenses and losses reasonably incurred by Koenig up to the date of cancellation, including, without limitation, any cancellation fees, forfeiture of any deposit paid, supplier or manufacturer restocking charges, and any other non-recoverable costs.
(d) Custom or special orders are generally non-cancellable and non-refundable. Delay in delivery shall not entitle the Customer to cancel an Order.
6.4 Cancellation or Suspension by Koenig
(a) Koenig may, at its sole discretion, cancel or suspend a Contract, in whole or in part, immediately by written notice to the Customer if:
(i) the Customer breaches these Terms or any other agreement with Koenig, or Koenig reasonably believes the Customer will be unable to perform its obligations;
(ii) an Insolvency Event occurs in relation to the Customer; or
(iii) performance of the Contract becomes impossible or substantially impracticable due to circumstances beyond Koenig’s reasonable control, including those described in clause 5.4.
(b) In such cases, Koenig will refund any amounts paid for Goods not supplied, less any reasonable costs incurred. The Customer shall have no further claim against Koenig in respect of such cancellation.
6.5 Return Procedure
Where a return is authorised under clause 6.1 or required under clause 8 or applicable law, Koenig will provide return instructions. The Customer must ensure the Goods are securely packaged in original or equivalent protective packaging. Koenig is not liable for loss or damage in transit and recommends that the Customer insures the return shipment. Upon receipt, Koenig will inspect the Goods to confirm compliance with return conditions. Koenig’s assessment shall be final. Approved returns will be processed by refund or credit, at Koenig’s discretion, using the original payment method where practicable.
7. Australian Consumer Law
(a) Nothing in these Terms excludes, restricts or modifies any rights or remedies the Customer may have under the Competition and Consumer Act 2010 (Cth), including the ACL, which cannot be excluded, restricted or modified by agreement.
(b) Koenig’s Goods come with guarantees that cannot be excluded under the ACL. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if they fail to be of acceptable quality and the failure does not amount to a major failure.
(c) These Terms are to be read and construed subject to the ACL, and apply to the maximum extent permitted by law.
8. Warranties and Liability
8.1 Warranties
Koenig provides an express limited warranty in respect of the Goods. The applicable warranty terms, including any product-specific conditions, periods, and exclusions, are set out in Koenig’s Warranty Policy, which is incorporated into these Terms by reference and is available on Koenig’s Website or provided with the Goods.
8.2 Consequential Loss
To the maximum extent permitted by law, Koenig is not liable for any indirect, special or consequential loss, including loss of profit, loss of revenue, loss of production, or loss of business opportunity. This clause does not limit any right to compensation for reasonably foreseeable loss arising from a major failure as defined under the ACL.
8.3 Maximum Liability Cap
(a) Subject to any non-excludable rights under the ACL, Koenig’s total aggregate liability arising out of or in connection with the supply of the Goods or these Terms is limited to an amount equal to the price paid by the Customer for the Goods giving rise to the claim.
(b) Nothing in this clause 8 excludes or limits Koenig’s liability to the extent it is caused by Koenig’s own negligence, fraud, or wilful misconduct.
8.4 Third-Party Goods or Services
Koenig is not liable for any defect, failure, delay or loss arising from, or attributable to, goods, components, services or acts of any Third Party, including any carrier, installer, supplier or service provider.
8.5 Proportionate Liability
Koenig’s liability is reduced to the extent that the Customer, or any Third Party, caused or contributed to the loss or damage.
9. Inclusive On-site Servicing and Labour
(a) Koenig will provide, as a customer benefit, complimentary on-site labour and standard travel for warranty claims that are approved under the applicable Warranty Policy and arise within twelve (12) months from the date of delivery of the Goods. This benefit applies to all Goods.
(b) Where Koenig determines that on-site service is reasonably required to address a covered defect during this initial twelve (12) month period, Koenig will arrange for a technician to attend the Customer’s site at no cost to the Customer for labour or standard travel.
(c) This benefit does not extend or modify the applicable warranty period for the Goods and is provided as a goodwill service to minimise operational disruption during the first year following delivery. For the avoidance of doubt, after this initial twelve (12) month period, warranty coverage continues in accordance with the applicable Warranty Policy, labour, travel, freight and on-site service costs may be chargeable as set out in the applicable Warranty Policy.
(d) In cases where the Customer is located in a remote or regional area, Koenig may, at its discretion, require the Customer to return the Goods or affected components to a designated service facility, or may agree alternative arrangements, including the application of reasonable travel charges. Such arrangements will be determined on a case-by-case basis, having regard to practicality and cost-efficiency.
10. Privacy
(a) The Customer authorises Koenig to collect, use and disclose personal information for the purposes of identity verification, credit assessment, account administration, order fulfilment, service delivery, and marketing. The Customer further authorises Koenig to disclose such information to third parties, including credit reporting bodies, financial institutions, service providers, and other relevant entities for these purposes.
(b) If the Customer does not provide the personal information requested by Koenig, Koenig may be unable to assess creditworthiness or supply the Goods.
(c) The Customer authorises any person or entity to provide Koenig with any information it may reasonably require in connection with credit or other relevant enquiries. This includes information relating to the Customer’s creditworthiness, credit standing, credit history or credit capacity, as permitted under the Privacy Act 1988 (Cth).
(d) The Customer has the right to access and request correction of personal information held by Koenig.
(e) By entering into a Contract or placing an Order with Koenig, the Customer consents to being included on Koenig’s electronic mailing list and to receiving electronic communications from Koenig relating to the Goods and the Customer’s dealings with Koenig, including order and service updates, technical and safety information, product announcements, and promotional materials. Koenig will manage all personal information in accordance with its Privacy Policy (found here). The Customer may opt out of receiving promotional communications at any time by using the unsubscribe facility provided or by contacting Koenig directly, but this does not prevent Koenig from sending communications reasonably necessary for the supply, servicing, support or safe operation of the Goods or for compliance with law.
11. Intellectual Property
(a) Koenig and its licensors retain all rights, title and interest in and to all Intellectual Property Rights subsisting in or relating to the Goods, including any associated documentation, specifications, designs, trademarks, patents, and copyrights. No Intellectual Property Rights are transferred or granted to the Customer by virtue of the sale of the Goods, other than as necessary for their ordinary use.
(b) The Customer warrants that any designs, drawings, specifications or other materials provided to Koenig do not infringe the Intellectual Property Rights of any Third Party. The Customer indemnifies Koenig on demand against any liability, loss, cost or expense arising from any claim that Koenig’s use of such materials infringes the Intellectual Property Rights of a Third Party.
12. General Terms
(a) Amendments: Koenig may amend these Terms from time to time by publishing amended Terms on Koenig’s Website. Any amendment will apply only to Orders placed after the amended Terms are published. Amendments will not apply to an existing Contract unless agreed in writing by the Customer.
(b) Waiver: A failure or delay by Koenig to exercise any right or remedy under these Terms does not constitute a waiver of that right or remedy. A waiver must be in writing and signed by Koenig. A partial exercise of a right does not prevent further exercise of that right.
(c) Severability: If any provision of these Terms is held to be invalid, illegal or unenforceable, that provision will be severed and the remainder of the Terms will continue in full force and effect.
(d) Entire Agreement: These Terms, together with the applicable quotation, order confirmation, and any incorporated documents (including the Warranty Policy), constitute the entire agreement between the parties in relation to the supply of Goods and supersede all prior representations, agreements or understandings, whether oral or written.
(e) Assignment: The Customer may not assign or transfer any of its rights or obligations under these Terms without Koenig’s prior written consent. Koenig may assign its rights and obligations without the Customer’s consent.
(f) Governing Law and Jurisdiction: These Terms are governed by the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and any courts competent to hear appeals from those courts.
13. Defined Terms and Interpretation
(a) In these Terms, unless the context requires otherwise:
ACL means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation.
Insolvency Event means the occurrence of any of the following events in relation to a party: the party is unable to pay its debts as and when they fall due; a receiver, administrator, liquidator or similar officer is appointed to the party or any of its assets; the party enters into any arrangement with its creditors; or the party becomes subject to any form of external administration.
Intellectual Property Rights means all intellectual property rights, including patents, designs, trade marks and service marks (whether registered or unregistered) and all applications or rights to apply for registration of them; copyright (including in software, websites, databases, advertising and promotional materials); rights in confidential information, trade secrets, know-how, operating procedures and technical information; and any other rights or protections of a similar nature anywhere in the world.
Koenig's Website means the Koenig website from time to time published at https://koenigmachinery.com.au.
Third Party means any person, entity or body corporate that is not a party to this agreement and is not a Related Body Corporate (as that term is defined in the Corporations Act 2001 (Cth)) of Koenig.
Warranty Policy means the warranty terms applicable to the relevant Goods, as published on Koenig’s website or otherwise provided to the Customer, and as in effect at the time of the relevant Contract.
(b) In these Terms:
(i) headings are for convenience only and do not affect interpretation;
(ii) the singular includes the plural and vice versa;
(iii) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity;
(iv) a reference to a document or agreement includes any variation or replacement of it; and
(v) a reference to a law includes any statutory modification, consolidation or re-enactment of it, and any subordinate legislation made under it.