Terms & Conditions of Sale

TERMS AND CONDITIONS OF SALE

1. INTERPRETATION

1.1.       “Company” means Acacia Joinery Pty Ltd ACN 128 819 401 and includes its successors and assigns.

1.2.       Contract means the contract created by the issue of an Order.

1.3.       “Customer” means any person, firm or company placing an Order for the purchase of Goods.

1.4.       Customer Supplied Plans means the plans referred to in sub-clause 11.1.

1.5.       Default Event means an event referred to in sub-clause 14.1.

1.6.       Delay Event means a breach of contract, or a wilful act or omission, by the Customer or those for whom it is responsible; an inability on the part of the Company (except as a result of a breach of contract by it) to secure labour, materials or other services in connection with the Contract; a Variation; inclement weather; a Force Majeure Event; industrial action (as that term is defined in the Fair Work Act 2009 (Cth) which prevents the Company from working for more than 3 hours and which is not caused by the Company; a direction or other requirement of any government entity requiring a shut-down or other restricted activity as a result of a pandemic or pandemic-related event which adversely affects the Company’s ability to perform; or any other delay of whatever nature beyond the Company’s control.

1.7.       Delivery has the meaning given in clause 7.1

1.8.       Force Majeure means any of the following: fire, flood, explosion, earthquake or act of God; riot, civil disorder, rebellion or revolution; war; lock out; any Court order (including an injunction) restricting the Company’s ability to supply and deliver Goods; interruption to transportation; accidents; any direction or other requirement of any government entity requiring a shut down or other restricted activity as a result of a pandemic or pandemic-related event which adversely affects the Company’s ability to perform; and anything else of like character or effect, provided that the Company did not cause the same.

1.9.       “Goods” means all goods the subject of an Order.

1.10.    “Terms” means these Terms and Conditions of Sale.

1.11.     “Invoice” means the Company’s invoice in connection with the supply and delivery of Goods.

1.12.     “Order” means the acceptance of a Quotation by the Customer.

1.13.     Price means the total consideration payable in connection with the supply and Delivery of Goods as set out in a Quotation, as adjusted pursuant to these Terms.

1.14.     “Quotation” means the quotation issued by the Company in connection with the supply and Delivery of Goods.

1.15.     Supplier means any supplier of materials or services to the Company in connection with the Goods

1.16.     Variation means a variation to the Goods which involves any of the following: an increase, decrease or omission of any part; a change in character or quality; a change in levels, lines, positions or dimensions; additional work; or the demolition or removal of material or work no longer required by the Customer.

1.17.     In these Terms, unless the context otherwise requires, the following rules apply to the interpretation of these Terms:

The clause headings do not form part of, and must not be used in the interpretation of, these Terms.

Words in the singular include the plural and words in the plural include the singular, according to the requirements of the context. Words importing a gender include even gender.

If the time for giving any notice, making a payment, or doing anything else required by these terms falls on a Saturday, Sunday or statutory public holiday, then the time for doing so is hereby deemed to be on the day next following which is not a Saturday, Sunday or public holiday.

Any reference to “including”, “includes” or “include” must be read as if followed by “without limitation”.

No rule of contract interpretation applies to the disadvantage of a party on the basis that it put forward these Terms or any part thereof.

The documents comprising any contract with the Customer must be read as complementary documents mutually explanatory of one another and what is contained in one of them shall be as binding as if contained in all of them.

2. APPLICATION OF THESE TERMS

2.1.       These Terms apply to all Goods sold by the Company.  The Customer is deemed to have accepted these Terms and to be immediately bound by these Terms on placing an Order.

2.2.       These Terms, together with a Quotation and an accompanying Order, constitute the entire contract between the Company and the Customer.  To the extent of an inconsistency between these Terms and an Order, these Terms shall prevail.

2.3.       No amendment, alteration, waiver or cancellation of any of these Terms is binding on the Company unless confirmed by the Company in writing.  No communication between the Company and the Customer shall modify or vary these Terms unless such modification or variation is in writing and signed by the Company.

2.4.       The Customer acknowledges that no employee or agent of the Company has any right to make any representation, warranty or promise in relation to the Goods or the sale of the Goods other than as provided for in these Terms.

2.5.       These Terms are available at www.acaciajoinery.com.au and may be amended, modified, added to or deleted at any time by the Company. Any such amendment, modification, addition or deletion to these Terms shall be legally effective from the date the amended Terms are displayed at www.acaciajoinery.com.au.

3. QUOTATIONS, PLACING ORDERS & ACCEPTANCE

3.1.       A Quotation is valid for 30 days from its date and thereafter expires and cannot be accepted by   the Customer.

3.2.       The Company is entitled to vary the terms of any Quotation (including any Price quoted) at any time prior to an Order being received by the Company. Any variation will be provided in writing to the Customer. The variation is hereby deemed to apply as and from the date of the Quotation and the Quotation must be read and interpreted accordingly.

3.3.       An Order must be in writing. If an Order is verbal, the communication of the same will be regarded for all purposes as a statement of intention to place an Order and will have no other effect. The Company has no intention to create legal relations unless and until it receives a written Order.

3.4.       A Quotation may require the Customer to pay a refundable and/or a non-refundable deposit by a date to be nominated in the Quotation. The Customer must pay any such deposit by the date so nominated, failing which the Company shall have no liability to continue to perform the Contract until the same has been paid. Any extra cost incurred by the Company as a result of any failure to pay any such deposit shall be reasonably determined by the Company and the Customer shall be informed in writing of the same. That extra cost shall be claimed and paid in accordance with clause 6.

3.5.       Any person who places an Order on behalf of the Customer warrants that they are duly authorised by the Customer to do so. The Customer hereby acknowledges that the Company is entitled to proceed on the basis of any Order placed by an employee, servant or agent of the Customer without further enquiry and that it will be bound by the terms of any Contract so created.

3.6.       No Order may be cancelled, modified or deferred without the prior written consent of the Company (which is at the Company’s sole discretion).  If such consent is given, it is at the Company’s election, subject to the Company being reimbursed all losses, including loss of profits, and paid a cancellation and/or restocking fee (being not less than 10% of the invoice value of the Goods).

4. PRICE ADJUSTMENTS

4.1.       The Customer may give the Company a written notice of a proposed Variation. The Company shall, as soon as practicable, notify the Customer whether the proposed Variation can be affected and, if so, the Company’s estimate of the cost of the proposed Variation (including all warranty and time-related costs, if any). If the Customer decides to proceed with the Variation, it must give the Company a written direction to do so. The price of the Variation will be determined using the following order of precedence: prior agreement; or reasonable rates or prices. The price so determined shall be added to the Price.

4.2.       If, after the date of an Order, the Company is informed by a Supplier that the price of any goods, materials or services has increased such that the Company is required to incur extra cost in fulfilling its obligations under a Contract, the Company is entitled to charge the Customer the amount of that extra cost plus an administration charge equal to 50 percent of the extra cost. Correspondence signed on behalf of the Supplier will be conclusive evidence of the extra cost incurred, or to be incurred, by the Company in connection with the goods, materials or services therein referred to. The total amount to which the Company is entitled pursuant to this sub-clause will be added to the Price as and from the date of notification of the increase by the Company to the Customer.

4.3.       The Company may, every 12 months after the date of the Order, increase the Price by a percentage not exceeding 15 per cent of the Price. The Company will provide the Customer with written notice of any such Price increase and the date from which it is applicable.

5. TIME FOR PERFORMANCE

5.1.       If the Company’s ability to supply and deliver Goods is delayed by a Delay Event, the Company will inform the Customer of the cause of the delay and the impact on the Company’s ability to supply and deliver the Goods and of any extension of time that is necessary in order to fulfil the Company’s obligations. The Company may update its assessment of the extension of time required from time to time. Any time nominated in the Contract for the completion of the Company’s obligations will be extended by any period(as updated) so nominated. The Company will be entitled to claim and be paid for any extra costs incurred by reason of any Delay Event. The Company has no liability on any basis whatsoever in connection with any failure to deliver Goods within any time stipulated in any Quotation or elsewhere on account of any Delay Event. The Customer is not entitled to reject any Goods performed on account of any delay arising in connection with a Delay Event.

6. TERMS OF PAYMENT AND PAYMENT DEFAULTS

6.1.          Payments are to be made directly to the Company without any set off, deduction whether on account of sums owed or claimed to be owed to the Customer by the Company or otherwise or discount other than as agreed to in writing by the Company.

6.2.       The Company may submit a payment claim in the form of an Invoice to the Customer at the times nominated in the Quotation or otherwise on the last business day of each month. The claim will identify the Goods to which it relates and will indicate the amount of the progress payment that the Company claims to be due. Invoices may be submitted by email. An Invoice shall constitute a payment claim under the Building and Construction Industry Security of Payments Act 1999 (NSW).

6.3.     The due date for payment of each Invoice is either as set out in the Quotation or within 30 days of the date when the Invoice has been submitted to the Customer. Payment of an Invoice must not be withheld because any part of that Invoice may be disputed. Any failure to pay an Invoice on the due date will entitle the Company to charge interest calculated on a daily basis at the rate nominated by the Supreme Court of NSW as its pre-judgment interest rate as applicable from time to time for the period from the due date for payment to the date of payment. The Company may charge an administration fee for any payment made by credit card and the amount to be charged will be advised to the Customer.

6.4.          The Company may, in its absolute, unfettered and sole discretion, require the Customer to pay instalments on account of the Price at such times, and in such amounts, as advised by the Company from time to time.

6.5.          Payment may be made by cheque, bank cheque, electronic/on-line banking or any other methods as agreed to between the Customer and the Company.

6.6.          The Customer is not entitled to deduct or otherwise withhold any amount from any payment by way of retention, security or otherwise.

6.7.          Unless otherwise stated, the Price does not include GST.  In addition to the Price, the Customer must pay to the Company an amount equal to any GST the Company must pay for any supply by the Company under this or any other agreement for the sale of the Goods.

6.8.          The Customer must pay GST, without deduction or set off of any other amounts at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the price accept where they are expressly included in the Price.

6.9.          In the event that the Customer’s payment is dishonoured for any reason, the Customer shall be liable for any dishonour fee incurred by the Company.

6.10.       If the Customer defaults in payment of any Invoice when due, the Customer herby indemnifies the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company’s collection agency costs.

7. DELIVERY OF GOODS

7.1.          Delivery of the Goods is deemed to occur at the time that:

7.1.1.      the Customer or the Customer’s nominated carrier takes possession of the Goods at the Company’s address; or

7.1.2.      the Company (or the Company’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at that address.

7.2.       If the Quotation does not include the cost of Delivery, that cost will be in addition to the Price.

7.3.       The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery.  In the event that the Customer is unable to take Delivery of the Goods as arranged then the Company shall be entitled to (a) leave the Goods and in such a case the Company shall not be responsible for any claims, damages, costs or expenses arising or resulting therefrom (including any claim that the Goods were not delivered), and/or (b) charge a reasonable fee for redelivery and/or storage.

7.4.       The Customer is responsible for ensuring that Goods delivered to it in accordance with these Terms are secured and insured, and shall be responsible for any loss, damage or theft of the Goods so delivered.

7.5.       The Company may deliver the Goods in separate instalments.  Each separate instalment shall be invoiced and paid in accordance with these Terms.  Any Delivery time or date given by the Company to the Customer is an estimate only.  The Customer must still accept Delivery of the Goods even if late and the Company will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late.

7.6.       The Company shall not be liable on any basis whatever for any delay in delivery of the Goods made by a third party or third-party manufacturer or the consequences of any such delay.

7.7.       In the event that the Customer cancels Delivery of the Goods, the Customer shall be liable for any and all loss, damage, cost and expense incurred by the Company as a direct result of the cancellation.

8. PAYMENT, TITLE AND THE PPSA

8.1.       Goods are at the Customer’s risk from Delivery but title in Goods supplied to the Customer will not pass to the Customer until all monies owing with respect to those Goods, together with all other monies owing by the Customer to the Company, has been fully paid. Until such time the Customer has custody of the Goods as fiduciary agent and bailee of the Company and must not do anything to adversely to affect the Company’s title in the Goods pending payment.

8.2.       Where the Customer does make payment in respect of specific Goods, the Company may treat such payment as having been made firstly in respect of Goods which are no longer in the possession of the Customer and, secondly in respect of Goods still in the Customer’s possession (as the Company determines).

8.3.       Until Goods have been paid for in full, the Customer:

8.3.1.    Must store and protect the Goods in such a manner as to show clearly that they are the property of the Company.

8.3.2.    May only sell the Goods in the ordinary course of its business but only as fiduciary agent of the Company.  In such an event, the Customer receives all proceeds associated with such sale (or insurance proceeds in the case Goods are stolen, damaged or lost) in trust for the Company and must keep the proceeds in a separate bank account until all liability to the Company is fully discharged;

8.3.3.    Must keep the Goods insured against theft, damage, and destruction (and if the Customer fails to ensure the products, the Company may do so and invoice the Customer for the cost of insurance); and

8.3.4.    Agrees not to assign, charge or otherwise encumber or grant any interest or in the Goods to any third party.

8.4.       The Customer irrevocably authorises the Company at any time, to enter any premises upon which the Goods are stored to enable the Company to (a) inspect the Goods, or (b) to retake possession of the Goods in accordance with any right to do so conferred by these terms.

8.5.       This clause applies notwithstanding any credit facility that may exist between the parties.

8.6.       The Customer acknowledges that the PPSA applies to all transactions pursuant to these Terms (or otherwise) and grants a security interest in all present and after acquired Goods as security for all monies now and in the future owing by the Customer to the Company.

8.7.       The Customer agrees to do all such things and sign all such documents as are necessary and reasonably required to enable the Company to acquire a perfected security interest in all Goods supplied, and to provide such information as is required to enable registration of a Purchase Money Security Interest (‘PMSI’) under the PPSA.

8.8.       The Customer acknowledges that a PMSI is granted in priority to all other creditors by the Customer in favour of the Company and in all Goods that are supplied from time to time as security for the Customer’s obligations to the Company.

8.9.       The Customer indemnifies the Company for any liability for any costs of registration, maintenance, enforcement or discharge or security interest and such other costs and expenses as the Company may incur.

8.10.     The Customer agrees to waive or exclude such sections of the PPSA as the Company may nominate from time to time, subject to those sections being capable of exclusion.

8.11.     If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds in connection with any clam relating to the same. The customer must do everything on its part to promptly make any claim available under any insurance policy and to comply with the terms of the policy, in the event of any such damage or destruction. The production of these Terms by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make any further enquiries.

9. CUSTOMER PAINTING OBLIGATIONS

9.1.       Timber is a natural product and, as such, exhibits variations in texture, shade, colour, surface, finish, markings, and veining, and contains natural fissures, occlusions, and indentations. Whilst the Company will make all reasonable efforts to match finished Goods to samples, the Company accepts no liability whatsoever where finished Goods supplied differ from samples.

9.2.       Timber is a hydroscopic material subject to expansion and contractions. As a consequence, the Company shall not be responsible or liable for any gaps that may appear in joinery during prolonged dry periods.

9.3.       The Customer shall prime/coat all surfaces and edges of timber windows, doors, frames and sashes with a suitable oil-based product by the earlier of (a) 2 weeks following Delivery, and (b) installation by the Customer.

9.4.       In order to reduce the possibility of bowing, twisting or warping, the Customer shall apply suitable light-coloured finishes to all external timber surfaces in the manner and frequency as specified by the Company or paint manufacturer for the period of any warranty associated with the Goods. Light reflective semi-gloss finishes with a light reflectance value (LRV) finish greater than 55 should be used, noting that white has an approximate LRV of 95 whereas black has an LRV of less than 5.

9.5.       Where timber doors are to be exposed to direct sun or rain, they require periodic resealing or painting (dependent on weather or moisture exposure).  Dark coloured stains or paint shall not be used on timber doors to be exposed to sunlight, as some expansion and contraction of door parts may occur.

9.6.       Using different colours on the exterior and interior of timber product may cause uneven heat/moisture absorption, particularly for timber doors exposed to direct sun or rain, and may result in bowing, twisting or warping. The finishing paint or stain applied should be the same colour on all six sides.

9.7.       Any door or door unit over 2400mm high is only guaranteed against faulty workmanship and/or faulty materials and is not guaranteed against bowing, twisting, or warping.

9.8.       All window and door units are complete with standard 140mm reveal sections, and is priced accordingly, unless otherwise stated in the Quotation. Increases to this section size will incur additional costs due to extra material and labour requirements.

9.9.       All timber jambs reveal, and sill sections (especially greater than 140mm) need to be supported and securely fastened to prevent twisting, warping and/or cupping from sun and weather exposure.

9.10.     Window design is a balance between performance and affordability, and it is not feasible to produce windows to withstand extreme weather conditions. Whilst products are designed and manufactured to/or exceed current Australian Standards, the Company shall not be responsible for any product failure caused by due to extreme weather conditions.

9.11.     The Customer acknowledges that Goods supplied may:

9.11.1.  Fade or change colour over time.

9.11.2.  Expand, contract, or distort as a result of exposure to heat, cold, other weather conditions.

9.11.3.  Mark or stain if exposed to certain substances; and

9.11.4.  Be damaged or disfigured by impact or scratching.

9.12.     The Customer acknowledges that a failure to undertake any of the obligations detailed in this clause 9 will void any warranty provided by the Company associated with the Goods.

10. POWDER COATING

10.1.     Powder coat finish will comply with Australian Standards AS3715 and may contain minor blemishes which are acceptable within the meaning of Australian Standard AS3715.

11. CUSTOMER PROVIDED PLANS, SPECIFICATIONS & DRAWINGS

11.1.     The Customer warrants that all plans, specifications, drawings, and other information provided by it and associated with Goods to be manufactured and supplied by the Company to the Customer is correct, accurate, compatible with and appropriate for the intended purpose of the Goods.  The Company does not warrant the performance, technical, compatibility and/or fitness for purpose features of Goods manufactured and supplied by the Company based, in whole or in part, on Customer Supplied Plans, and the Company shall be entitled to rely on the correctness, accuracy, compatibility with and appropriateness of the Customer Supplied Plans. The Customer acknowledges and agrees that in the event that any of the Customer Supplied Plans is incorrect, inaccurate, incompatible with and/or inappropriate for the intended purposes of the Goods, the Company shall not be responsible for any loss, damages, or costs however resulting as a consequence. The Customer hereby indemnifies the Company against any such loss, damages or cost.

11.2.     The Company allows for a single revision to shop drawings produced per Contract project (to the extent such revision relates solely to dimensional changes requested by the Customer).  Any further revision (or any revision not solely related to dimensional changes requested by the Customer), including any architectural changes, may be charged at the hourly rate chargeable by the company for the person making the revisions, a minimum fee of $220 being payable in respect of each revision.

12. FIT FOR PURPOSE

12.1.     The Customer must ensure that the Goods are suitable for their intended purpose and warrants and represents that the Goods, the subject of an Order, are both suitable for their intended purpose and shall conform with all legal requirements associated with that intended purpose.

12.2.     The Customer is responsible to ensure that the Company is made aware in writing of any specific requirements pertaining to the Goods at least 7 days prior to any Order being placed. The Company shall not be liable for any damage, loss or injury suffered as a consequence of any inaccurate or insufficient information concerning such requirements as provided by the Customer in writing. The Customer hereby indemnifies the Company against any such loss, damage, or injury.

12.3.     The Company shall not be bound by nor be responsible for any term, condition, representation, or warranty other than that which is expressly stated in the Quotation and the Customer acknowledges and agrees that it has not relied on, nor will it rely on, any representation or warranty with respect to the merchantable quality, description, quality, suitability, or fitness for purpose of the Goods unless expressly provided for in the Quotation.

12.4.     The Company shall not be liable for damage, loss or injury suffered as a result of any person failing to follow instructions relating to Goods, modifying the Goods, failing to appropriately maintain or store them or using them for a purpose not disclosed to the Company in writing, in accordance with these Terms. The Customer hereby indemnifies the Company against any such loss, damage, or injury.

12.5.     The Customer agrees that any variations in colour or texture of any material comprising all, or part of the Goods shall not constitute a defect.

13. ACCURACY OF MEASUREMENTS FOR ORDERS

13.1.     In the event the Customer gives information relating to measurements and quantities of the Goods required to be supplied by the Company, it is the Customer’s sole responsibility to ensure the accuracy of those measurements and quantities. The Company accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this requirement. The Customer hereby indemnifies the Company against any such loss, damage or costs

14. DEFAULT

14.1.     The following circumstances constitute a Default Event:

14.1.1.  Payment not being made by the Customer in accordance with these Terms.

14.1.2.  The Customer otherwise breaching any of these Terms.

14.1.3.  The Company receiving notice of, or holding a reasonable belief that, a third party may attempt to levy execution against Goods delivered.

14.2.     The Company may, upon the occurrence of a Default Event, notify the Customer in writing that it intends to take action pursuant to sub-clause 14.3 if the Default Event is not remedied within the time stated in the notice (and it is hereby agreed that 2 business days is a reasonable time to be nominated in the notice).

14.3.     In the event of a Default Event, the Company may (in its absolute discretion), and without limiting in any way its rights pursuant to these Terms which has not been rectified within the time stated in the sub-clause 14.2 notice:

14.3.1.  terminate the Contract.

14.3.2.  Suspend the supply of and/or any further Goods until the Default is rectified.

14.3.3.  Repossess any Goods previously supplied.

14.4.     If the Customer informs the Company or other creditors that it is insolvent or is financially unable to proceed with the Contract, or notice is given of a meeting of creditors with a view to the Customer entering a deed of arrangement, or a deed of arrangement is entered, or a controller, administrator, receiver, administrator or like appointee is appointed, or an application is made to the Court for its winding up, or a winding up order is made, or any event analogous to the above occurs, or (if the Customer is not a corporate entity), the Customer commits an act of bankruptcy, or has a bankruptcy petition presented, or is made bankrupt, or makes a proposal for a scheme of arrangement or composition or is subject to any event analogous to the above, then the Company may (without the need to give any notice) terminate the Contract. This right is in addition to any other remedies available to the Company.

14.5.     If for any reason the Company considers that it will be unable, or it is unable, to perform its obligations under the Contract, the Company may at any time by notice in writing to the Customer terminate the Contract forthwith. In that event, the Customer will be under no obligation to make any further payment to the Company other than in relation to Goods supplied prior to the termination. Any refundable deposit paid by the Customer will be refunded to the Customer promptly. Except for those obligations, neither party will have any claim against the other and they each release the other from any claim, demand, suit, action or proceeding in connection with the Contract and its termination.

14.6.     The Company may charge interest on all overdue amounts calculated on a daily basis until paid in full at the rate referred to in the sub-clause 6.3 and to charge for any expenses incurred in collecting or attempting to collect any overdue monies, including any debt collector’s expenses incurred, or to be incurred.

14.7.     A certificate signed by an authorised representative of the Company shall be prima facie evidence of the amount of indebtedness of the Customer to the Company at that time.

14.8.     The Customer is liable to pay to the Company and the Company may recover in full from the Customer all costs, expenses and disbursements incurred and/or payable by the Company (including debt collection agency fees and legal costs of a solicitor and own client basis) arising from or as a result of the Company’s exercising or enforcing or seeking or exercise or enforce a right under these Terms, and in particular, in collecting or attempting to collect amounts due to the Company. Such costs, expenses and disbursements may be recovered by the Company from the Customer as a liquidated debt. The Company may apply payments received from the Customer firstly to any costs, expenses, and disbursements, then to interest and then to other amounts owed by the Customer.

14.9.     The Customer shall have no right of set-off in any claim or proceeding brought by the Company against the Customer for any default in payment and the Customer acknowledges that the Company may produce these Terms in any claim by the Customer for set-off.

15. LIMITATION OF LIABILITY

15.1.     The only conditions, guarantees and warranties which are binding on the Company in respect of the state, quality, condition, suitability, or fitness of the Goods are those imposed and required to be binding by statute (including the Australian Consumer Law) which cannot be excluded. All other conditions, guarantees and warranties whether express or implied by law in respect of the state, quality or condition of the Goods which may apart from this clause be binding on the Company are expressly excluded.

15.2.     To the extent permitted by law, the liability, if any, of the Company arising from or in connection with a breach of the Contract (including a breach of such conditions, guarantees and warranties) shall, at the Company’s option, be limited to and completely discharged by either the replacement or the repair by the Company of the Goods or the granting of credit in favour of the Customer up to the value of the Goods. The Company has no liability on any basis whatsoever for any special, indirect, incidental or consequential loss, cost or damages including, without limitation, any loss of chance, bargain, expectation or opportunity, or any loss or liability in connection with any property of any third party, or loss of the benefit of this or any other agreement, or loss of use of any facility, building or equipment, or any loss or damage arising from any special circumstances outside the ordinary course of things. The Customer hereby indemnifies the Company from and against any loss, damage, cost, expense in connection with any liability the Company may otherwise have but for the terms of this sub-clause.

16. DEFECTS, WARRANTIES AND RETURNS

16.1.     The Customer must inspect the Goods on Delivery and must, at the time of Delivery, provide to the Company a signed written acknowledgement (in a form as provided by the Company) stating that the Goods are free of any evident defect/damage, and fully conform with the Goods as ordered. In the case of discovery of any latent defect in the Goods, the Customer must, within 7 days of such discovery, notify the Company in writing of any evident defect.  Upon such notification the Customer must allow the Company to inspect the Goods.

16.2.       Subject to this clause, a return of Goods will only be accepted provided that:

16.2.1.    the Customer has fully complied with these Terms.

16.2.2.    the Company has agreed that the Goods are defective.

16.2.3.    the Goods are returned within a reasonable time at the Customer’s cost; and

16.2.4.    the Goods are returned in the identical condition to that in which they were delivered.

16.3.       The Company shall not be liable for any defect or damage to Goods delivered which may be caused or partly caused by or arises as a result of:

16.3.1.    the Customer failing to properly maintain or store any Goods.

16.3.2.    the Customer using the Goods for any purpose other than that for which they were designed.

16.3.3.    the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to any reasonably prudent operator or user.

16.3.4.    the Customer failing to follow any instructions or guidelines provided by the Company.

16.3.5.    the Customer failing to comply with all requirements detailed in clause 9 of these Terms; or

16.3.6.    fair wear and tear, any accident, or act of God.

16.4.       If the Customer fails to notify the Company that the Goods are to be used in extreme environments and the Goods are not suitable for those environments, then any warranty associated with those Goods is null and void.

16.5.     The Company may cancel any Contract to which these Terms apply or cancel Delivery of the Goods at any time before the Goods are delivered by giving written notice to the Customer.  By given such notice, the Company shall repay the Customer any money paid by the Customer for the Goods.  The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.

16.6. Without limiting the Company’s rights under these Terms, no cancellation of an Order for Goods requested by the Customer will be permitted where the Goods are manufactured in accordance with the Customer’s specifications or are non-stock list items.

17. CATALOGUES

17.1.     Particulars in leaflets, catalogues, drawings, brochures and other printed material are illustrations only, form no part of the Contract between the Company and the Customer and are not binding on the Company.

18. DISPLAY AND SAMPLES

18.1.     Any display product or sample inspected by the Customer is solely for the Customer’s convenience and does not constitute a sale by sample.

19. FORCE MAJEURE

19.1.     If the Company is wholly or partially unable to fulfil its obligations under a Contract because of a Force Majeure Event, the Company must inform the Customer of the extent to which it is unable to perform its obligations. If a Force Majeure Event occurs and continues for a period 30 days, the Company may by notice in writing to the Customer terminate the Contract thereafter by written notice to the Customer. The Company has no liability on any basis whatsoever for any loss, damage, cost or expense incurred by the Customer or any third party arising out of or in connection with a Force Majeure Event.

20. PRIVACY

20.1.     The Company collects the personal information of the Customer to enable it to provide a Quotation for its Goods and to provide those Goods to the Customer.  The Company may disclose the personal information of the Customer to third parties that assist in in providing the Goods.

20.2.     Where Goods are supplied, or intended to be supplied, to the Customer on credit the Customer authorises the Company, its employees and agents to make such enquiries as it deems necessary to investigate the creditworthiness of the Customer including (without limitation) making enquiries with trade referees, financial institutions, credit providers and credit reporting agencies and the Customer authorises the disclosure of all such information obtained to the Company. With limiting this clause, the Customer agrees to:

20.2.1.  the Company obtaining a credit report containing personal credit information about the Customer.

20.2.2.  the Company exchanging information concerning the Customer with trade referees, financial institutions and/or credit providers; and

20.2.3. the Company being provided a consumer credit report to collect all overdue payments.

20.3.     The Customer acknowledges that a copy of this clause 20 may be provided to any entity that the Company approaches pursuant to this clause and is deemed for all purposes to be an authorisation in that entity’s favour to provide the necessary information to the Company without the need for further authorisation from or consultation with the Customer.

21. INTELLECTUAL PROBERTY

21.1The Customer acknowledges that a copy of this clause 20 may be provided to any entity that the Company approaches pursuant to this clause and is deemed for all purposes to be an authorisation in that entity’s favour to provide the necessary information to the Company without the need for further authorisation from or consultation with the Customer.

22. DISPUTES

22.1.If a dispute arises between the parties in connection with the Contract, then either party may give notice in writing to the other setting out the details of the dispute. The parties must meet within 5 business days of receipt of any such notice to resolve the dispute. If the dispute is not resolved within 15 business days of any such notice, the dispute may be referred to litigation (or such other dispute resolution mechanism as may be agreed).

22.2.     These Terms, and any contract to which they apply, shall be governed by the laws of New South Wales and of courts having jurisdiction in appeal therefrom and are subject to the jurisdiction of the courts in that state.

21.3.     The Company may licence or subcontract all or any part of its rights or obligations without the Customer’s consent.

21.4.     The Customer warrants that prior to entering into the Contract, it has obtained all necessary authorisation to allow it to do so, it is not insolvent, and this Contract creates binding and legal obligations on it.