ACACIA JOINERY PTY LIMITED ACN 128 819 401
1. INTERPRETATION
1.1. “Company” means Acacia Joinery Pty Limited ACN 128 819 401 and its successors and assigns.
1.2. “Customer” means the purchaser of goods from the Company.
1.3. “Goods” means all goods sold and/or delivered by the Company to the Customer from time to time.
1.4. “GST” means the Goods and Services Tax imposed by A New Tax System (Goods and Service Tax) Act 1999 and any related act and/or regulations.
1.5. “Price” means the price payable for the Goods as agreed between the Company and the Customer in accordance with these terms.
1.6. “Terms” means these Terms and Conditions of Sale.
2. APPLICATION
2.1. These Terms apply to all goods sold by the Company.
2.2. No amendment, alteration, waiver or cancellation of any of these Terms is binding on the Company unless confirmed by the Company in writing.
2.3. 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 contained in these Terms.
3. ACCEPTANCE
3.1. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these Terms if the Customer places an order for or accepts delivery of the goods.
3.2. These Terms may only be amended by the Company’s consent in writing and should prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Company.
3.3. The Customer acknowledges and accepts the Company should have the right to undertake an annual review in relation to previously agreed pricing. The Company shall post review confirm any changes to pricing in writing.
4. PRICES
Prices are determined at the time of order and are subject to change without notice.
5. TERMS OF PAYMENT AND PAYMENT DEFAULTS
5.1. Payments are to be made directly to the Company, strictly net, without any deduction or discount other than as stated herein or in relevant invoice or statement.
5.2. At the Company’s sole discretion the Price shall be either:
5.2.1. as indicated on any invoice provided by the Company to the Customer; or
5.2.2. the Company quoted price which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.3. The Company reserves the rights to change the Price if a variation to the Company’s quotation is requested. Any variation from the plan of Goods (including, but not limited to, any variation as a result of increased to the Company in the cost of taxes, levies, material and labour) will be charged for on the basis of the Company’s quotation and will be shown as variations on the invoice.
5.4. At the sole discretion of the Company, a non-refundable deposit will be required.
5.5. Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date, determined by the Company which is to be made prior to the delivery of the Goods.
5.6. 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.
5.7. There will be no deductions for retentions applicable.
5.8. 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.
5.9. 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.
5.10. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of the payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Company’s sole discretion, such interest shall compound monthly at such a rate) after as well as before any judgement.
5.11. 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.
5.12. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify 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.
6. DELIVERY OF GOODS
6.1. Delivery (“Delivery”) of the Goods is taken to occur at the time that:
6.1.1. the Customer or the Customer’s nominated carrier takes possession of the
Goods at the Company’s address; or
6.1.2. 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.
6.2. At the Company’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
6.3. 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 charge a reasonable fee for redelivery and/or storage.
6.4. The Company may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provision of these Terms. Any 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 the delivery being late.
7. PROPERTY AND RISK IN GOODS
7.1. Legal and beneficial ownership of the Goods supplied by the Company will not pass to the Customer until such time as the Goods so supplied and all other Goods supplied to by the Company to the Customer from time to time have been paid in full in cash or cleared funds.
7.2. Risk of damage or loss of Goods passes to the Customer on delivery and the Customer must insure the Goods on or before Delivery.
7.3. 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 payable for the Goods. 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.
7.4. If the Customer requires the Company to leave the Goods outside the Company’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
8. INCORPORATION OF GOODS
8.1. If the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the monies received from time to time by the Customer for such manufacturing or construction process as relates to the Goods, in trust for the Company.
8.2. The part referred to in sub-clause 8.1 shall be deemed to equal in dollar terms to the amount owing by the Customer to the Company at the time of the receipt of such monies by the Customer.
8.3. Money received by the Customer excludes any debts due but not yet paid by the Customer.
8.4. In the circumstances outlined in this clause, the Customer must not assign or deal with its debts in any way prior to the payment of the monies receivable by the Customer in respect of the Goods prior to their payment to the Company.
9. TIMBER & PAINTING CLAUSE
9.1. Timber is a natural product and, as such, exhibits variations in texture, shade, colour, surface, finish, markings, veining and contains natural fissures, occlusions, and indentations. Whilst the Company will make every effort to match sales samples to the finished Goods, the Company accepts no liability whatsoever where such samples differ to the finished Goods supplied.
9.2. Timber is a hydroscopic material subject to expansion and contractions, therefore, the Company will accept no responsibility for gaps that may appear in the joinery during prolonged dry periods.
9.3. The Customer will ensure that all surfaces and edges of timber windows, doors, frames and sashes are to be primed/coated with an oil based product by the Customer within two (2) weeks of the delivery date, or prior to installation and the Customer acknowledges that failure to prime/coat the surfaces and edges of timber windows, doors, frames and sashes is a breach of the warranty.
9.4. Light coloured finishes must be applied to external timber surfaces in the manner and frequency specified by the Company or paint manufacturer for the term of the Warranty, to reduce the possibility of bow, twist, or warp. Light reflective semi-gloss finishes are recommended. Paint with a light reflectance value (LRV) finish greater than 55 should be used. White has an approximate LRV of 95, Black has an LRV of less than 5. The warranty will be void when a dark coloured stain or paint has been applied to external timber surfaces.
9.5. Where possible exposure to direct sun or rain is a factor, to keep your timber doors beautiful, they require periodic resealing or painting dependent on weather or moisture exposure. Do not use dark coloured stains or paint on doors exposed to sunlight, as some expansion and contraction of door parts may occur. Further, a dark coloured stain or paint will void the products warranty.
9.6. Using different colours on the exterior and interior will cause uneven heat / moisture absorption, particularly for doors in exposed locations. The finishing paint or stain should be the same colour on all six sides. Using different colours may cause the door to warp.
9.7. Acacia Joinery Pty Ltd cannot evaluate all the available paints and stains, nor the customers’ specific application requirements. Your paint dealer should know of suitable finish systems that give satisfactory results in your region. It is highly recommended that top quality finishes be selected, and the application instructions on the container be followed explicitly.
9.8. Any door or door unit over 2400mm high is only guaranteed against faulty workmanship and/or faulty materials. They are not guaranteed against bowing and warping.
9.9. All window and door units are complete with standard 140mm reveal sections, and are priced accordingly, unless otherwise stated in the quotation. Increases to this section size, will incur additional costs due to extra material and labour requirements.
9.10. All timber jamb 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. Lack of fixing and fastening at installation stage is deemed poor installation practice, and voids product and workmanship warranties.
9.11. Window design is a balance between performance and affordability, and it is not feasible to produce windows that can withstand the most extreme weather events.While it is possible to design windows and doors which are completely watertight at SLS wind pressures, it is unlikely that these products, given the high cost to develop and sell versus the occasional extreme weather events, would be accepted by the market at large. All products are designed and manufactured to/or exceed current Australian Standards, and no responsibility is taken by the company for failure due to extreme weather conditions, or lack of maintenance on behalf of the customer.
9.12. The Customer acknowledges that Goods supplied may:
9.12.1. fade or change colour over time;
9.12.2. expand, contract or distort as a result of exposure to heat, cold, weather;
9.12.3. mark or stain if exposed to certain substances; and
9.12.4. be damaged or disfigured by impart or scratching.
10. POWDER COATING
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. ACCURACY OF CUSTOMER’S PLANS
11.1. The Company shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of the information provided by the Customer is inaccurate, the Company accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
11.2. The Company allows for one (1) revision to shop drawings produced per project. Any
revisions or architectural changes hereafter, will be charged accordingly at the current hourly
rate, with a minimum fee of $250.00 excluding GST applicable.
12. ACCURACY OF MEASUREMENTS FOR ORDERS
In the event the Customer gives information relating to measurements and quantities of the Goods required to complete the services, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or Company places an order based on these 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 clause.
13. DEFECTS, WARRANTIES AND RETURNS, COMPETITION AND CONSUMER ACT 2010 (CCA)
13.1. The Customer must inspect the Goods on Delivery and must within seven (7) days of Delivery notify the Company in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Company to inspect the Goods.
13.2. Under applicable State and Commonwealth Law, certain statutory implied guarantees and warranties may be implied into these Terms.
13.3. The Company acknowledges that nothing in these Terms purports to modify or exclude the non-excluded guarantees.
13.4. Except as expressly set out in these Terms or in respect of the non-excluded guarantees, the Company makes no warranties or other representations under these Terms including but not limited to the quality or suitability of the Goods. The Company’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5. If the Customer is a consumer within the meaning of the CCA, the Company’s liability is limited to the extent permitted by Section 64A of Schedule 2.
13.6. If the Company is required to replace the Goods under this clause or the CCA but is unable to do so, the Company may refund the money as paid for the Goods.
13.7. If the Customer is not a customer within the meaning of the CCA, the Company’s liability for any defect or damage in the Goods is:
13.7.1. limited to the value of any express warranty or warranty card provided to the Customer by the Company at the Company’s sole discretion;
13.7.2. limited to any warranty to which the Company is entitled, if the Company did not manufacture the Goods;
13.7.3. otherwise negated absolutely.
13.8. Subject to this clause, returns will only be accepted provided that the:
13.8.1. Customer has complied with the provisions of this clause;
13.8.2. Company has agreed that the Goods are defective;
13.8.3. Goods are returned within a reasonable time at the Customer’s costs (if that costs is not significant; and
13.8.4. Goods are returned in as close a condition to that in which they were delivered as possible.
13.9. Notwithstanding this clause 12, but subject to the CCA, the Company shall n ot be liable for any defect or damage which may be caused or partly caused by or arises as a result of:
13.9.1. the Customer failing to properly maintain or store any
Goods;
13.9.2. the Customer using the Goods for any purpose other than that for which they were designed;
13.9.3. 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;
13.9.4. the Customer failing to follow any instructions or guidelines provided by the Company; and
13.9.5. fair wear and tear, any accident, or act of God.
13.10. Notwithstanding anything contained in this clause, if the Company is required by a law to accept a return then the Company will only accept a return on the conditions imposed by that law.
13.11. If the Customer fails to notify the Company that the product is being used in extreme environments and the product is not suitable for those environments then any warranty is voided.
13.12. The Company is only liable for the replacement of the damaged or defective product and the Customer acknowledge that the Company will not be liable for any loss of profits or physical harm caused by the damaged or defective product.
14. RIGHT TO TERMINATE CONTRACT
If:
14.1. the Goods are not paid for in accordance with these Terms or any other written agreement between the Company and the Customer;
14.2. the Company receives notice of, or reasonably believes that a third party may attempt to levy execution against or attach the Goods; or
14.3. any other event occurs which is likely to adversely affect the Customer’s ability to pay fore the Goods (including but not limited to the appointment of a receiver, receiver and manager, administrator, controller, liquidator, trustee or similar person to the Customer’s undertaking);
then the Company may at any time thereafter, without any notice to the Customer and without prejudice to any other rights which is may have against the Customer, terminate any contract relating to the Goods and the bailment.
15. RIGHT TO ENTER PREMISES
In any of the circumstances referred to in the preceding clause, the Customer:
15.1. authorises the Company by itself, its agent or representatives at any reasonable times, without notice, to enter onto (with force if reasonably necessary) and at all necessary time(s), to remain in and on any premises where the Goods are located in order to collect the Goods, without being guilty of any manner of trespass; and
15.2. assigns to the Company all the Customer’s rights to enter onto and remain in and on such premises until all the Goods have been collected.
16. CANCELLATION OF ORDER
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 restocking fee (being not less than 10% of the invoice value of the Goods).
17. CANCELLATION
17.1. 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.
17.2. In the event that the Customer cancels Delivery of the Goods, the Customer shall be liable for any and all loss incurred by the Company as a direct result of the cancellation.
17.3. Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
18. CATALOGUES
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 to the Company.
19. DISPLAY AND SAMPLES
Any display product or sample inspected by the Customer is solely for the Customer’s convenience and does not constitute a sale by sample.
20. FORCE MAJEURE
The Company will not be liable for any breach of the contract due to any matter or thing beyond the Company’s control (including but not limited to transport stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion or accident.
21. GENERAL
21.1. The failure by the Company to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision, if any provisions of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provision shall not be affected, prejudiced or impaired.
21.2. These Terms, and any contract to which they apply, shall be governed by the laws of New South Wales in which the Company has its principal place of business and are subject to the jurisdiction of the courts in that state.
21.3. The Company shall be under no liability, whatsoever, to the Customer for any indirect and/or consequential loss and/or expenses suffered by the Customer arising out of any breach by the Company by these Terms.
21.4. The Customer shall be not be entitled to set off against, or deduct from the price any sums owed or claimed to be owed to the Customer by any company nor to withhold payment of any invoice because part of that invoice is in dispute.
21.5. The Company may licence or subcontract all or any part of its rights or obligations without the Customer’s consent.
21.6. The Customer agrees that the Company may amend these Terms at any time. If the Company makes a change to these Terms, that change will take affect from the date of which the Company notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Company to provide Goods to the Customer.
21.7. The Customer warrants that as prior entry to this agreement has obtained all necessary authorisation to allow it to do so, it is not insolvent and this agreement creates binding and legal obligations on it.
