CASA Materials – Terms and Conditions of Sale
(RELEASE 26 AUGUST 2019)
These are the entire Terms and Conditions of Sale (“Terms and Conditions”) of all goods, materials and services including all metal, metal products and related products (“Goods”) supplied mostly in coil form or flat sheets by CASA Materials Pty Ltd (ABN 99 139 862 543) or any of its Related Bodies Corporate as defined in the Corporations Act 2001 (the “Company”) to any person or company placing an order with the Company (“Customer”).
1. The Company carries standard Goods (minimum 1 tonne coils and sheet in standard gauges, widths and surface finishes and colours) as local stock otherwise the Customer must place a special order. The Company does not sell part coils. The Company does not guarantee that standard Goods will always be held and be available as local stock. Standard lead times for Goods not in stock including special orders is 15 to 18 weeks or longer depending on manufacturers lead time and freight.
2. Any quotation by the Company is not an offer to sell or to provide Goods. The Company will not be bound to sell unless a formal order is placed by the Customer with the Company and duly authorised officer of the Company has accepted it in writing.
3. All orders accepted by the Company are deemed to include these Terms and Conditions. The Company may at any time alter these Terms and Conditions and those updated Terms and Conditions will apply to all further orders. Up to date Terms and Conditions are published on the Company’s website from time to time and are valid from the date of release set out on these Terms and Conditions. The Company may stipulate other Conditions of Sale and these will be set out on the invoice sent to the Customer. Any extra terms or conditions contained in any order, offer, acceptance or other document provided by the Customer, and all representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not included in these Terms and Conditions are expressly excluded to the maximum extent permitted by law.
4. Prices are set out in the invoice issued by the Company. Any other Conditions of Sale beyond the Terms and Conditions must be set out on the invoice. Price and further Conditions of Sale are valid only at the date of issue of the Invoice. Price lists and any quotations are subject to change by the Company without notice. Prices are quoted from the relevant location in Australia in which the Goods are located.
5. Unless otherwise agreed to in writing, all prices are strictly net of any taxes or delivery and transport charges. Goods and Services Tax (“GST”), sales tax or any other applicable tax or duty payable must be paid by or reimbursed by the Customer to the Company on demand and the Customer must indemnify and keep the Company indemnified in respect of all taxes and duties (including GST) arising out of any sale of Goods or the subsequent use of Goods after sale to the Customer. Any delivery or transport charges or other additional charges will be set out on the Invoice and referenced where applicable to further Conditions of Sale.
6. The Company may receive requests from Customers for special orders of Goods in relation to customised tonnage, gauges, widths or surface finishes such as aesthetic texture, age and colour. Before the Company proceeds with a special order the Company requires a formal order and payment of a deposit by Customer. The deposit required for a special order will be determined by the Company at its discretion in the context of the credit approved for a Customer and the level of demand for the special order of Goods in the open market place.
7. All payments required to be made by the Customer to the Company under these Terms and Conditions will be made free of any set-off, or counterclaim and without deduction or withholding. Any amount due to the Company from time to time may be deducted from any monies which may be or may become payable to the Customer by the Company and at the Company’s discretion.
RESERVATIONS, RISK, TITLE AND INSPECTION
8. The Customer is entitled to place reservations with the Company for standard Goods only. The Customer acknowledges that a reservation does not secure title to the Goods. The Company holds the right to cancel any unvoiced reservation at notice. The Customer is not entitled to claim loss or damage (consequential or otherwise) from the Company as a result of any cancellation of reservation or where the reserved Goods are not available. Reservations will be held for 2 months from the initial reservation, where if a formal order is not placed to purchase, then the Goods will be transferred to available stock. The Customer is not entitled re-reserve the same material at the expiration of 2 months.
9. Risk in the Goods supplied to the Customer by the Company passes to the Customer on delivery. Title to and property in the Goods will not pass to the Customer until payment is made in full for all Goods supplied to the Customer by the Company at any time for which payment remains outstanding.
10. The Customer must examine the Goods on delivery to ensure that they match the order, invoice and quantity and that there is no external visible damage or evidence of quality issues. The Company shall not be liable for any claims whatsoever unless made in writing within 3 business days after delivery.
TRADE CREDIT, DELIVERY AND TRANSPORT
11. The Company will invoice Goods on delivery. Where trade credit is approved for a Customer the Customer must make payment 30 days from invoice. The provision of trade credit is at the Company’s sole discretion. The Company can revoke credit immediately at its discretion. Where no trade credit is approved then payment of the invoice must be made prior to delivery of the Goods.
12. The Customer is entitled to request the Company to store the Goods on the Customers behalf where the Customer pays a monthly storage fee for the Company to hold the Goods, however the Goods will be deemed delivered for the purposes of invoicing and any associated payment terms.
13. Delivery costs are estimates only until the transport company provides final costs. The Customer is responsible for the final cost of delivery and the Customer must pay all delivery costs or transport charges for Goods. The Company may determine the method of transport, in its absolute discretion.
14. Any date or time quoted for delivery is an estimate only. The Company will endeavour to achieve delivery at the dates and times requested by the Customer. The Customer has no right to cancel any order or refuse delivery or claim any loss or damage (consequential or otherwise) from the Company as a result of any difference between the estimated time and actual time of delivery.
15. The Company’s responsibility for the Goods ends at the delivery point. The Customer must unload the Goods. If the Customer is unable or unwilling to accept physical delivery of the Goods when the Goods are ready for delivery, the Company is entitled to charge a fee for any delay, or arrange for the storage of the Goods at the risk and cost of the Customer including all transportation, storage and other consequential costs. The Company may, at its sole discretion, make and invoice partial deliveries and each partial delivery will be treated as a separate sale pursuant to these Terms and Conditions. If at any time the Company does unload the Goods then this is at the Customer’s risk and the Customer indemnifies the Company for any loss, injury or property damage arising.
PERSONAL PROPERTY SECURITIES ACT 2009
16. Any orders for Goods may give rise to a security interest as defined in the Personal Properties Securities Act 2009 (“PPSA”) where the Company continues to hold retention of title until payment is made in full for the Goods.
17. The Customer acknowledges that the Company can make registrations on Personal Properties Security Register (“PPSR”) for ordered or invoiced Goods without seeking the permission of the Customer.
18. The Customer agrees to do all things and execute or arrange execution of all documents the Company requires to perfect a first ranking security interest in the Goods including registering a statement of the PPSR.
19. The Customer will give the Company 10 Business Days (being a day not Saturday, Sunday or public holiday in the State of Victoria) prior written notice of any change in the Customer’s name, A.B.N, address, contact details or any other change to Customer’s detail.
20. If the Customer fails to make payment for invoiced Goods or fails in any material respect to comply with these Terms and Conditions, or an Insolvency Event occurs, then all amounts owed to the Company by the Customer are immediately due and payable (including any interest charges and collection/legal costs) where time is of the essence and the Company may, in its absolute discretion:
(a) cease all further deliveries or require the payment of cash upon delivery of any further Goods;
(b) terminate any agreement in relation to Goods that have not been delivered including participation in any special deals, discounts, bonus payments, redemptions, rebates or other incentive programs;
(c) charge interest at 2% per month on all overdue amounts calculated on a daily basis from the due date. The parties agree this is a true measure of damages incurred by the Company. Any payments received from the Customer will be credited first against interest then against the oldest amount outstanding;
(d) claim from the Customer all reasonable costs, expenses and charges incurred on any account whatsoever including but not limited to the cost of any action taken by the Company to recover the Goods or any monies due from the Customer including but not limited to any collection agent costs, legal costs and disbursements each on a full indemnity basis; and
(e) exercise the right to repossess the Goods supplied under PPSR provisions detailed under clauses 16 to 19 and the Customer hereby authorises and allows the Company or its representatives, servants, agents or employees to enter the premises upon which the Goods are stored for the purpose of retaking possession of those Goods. The Company will not be liable for any costs, losses, damages, expenses or any other monies or losses suffered by the Customer as result of the Company repossessing the Goods. The Customer hereby indemnifies the Company against prosecution and claims for damages resulting from repossession or seizure of the Goods.
21. ‘Insolvency Event’ means in relation to a Customer: (a) if the Customer is a corporation, the Customer passes a resolution for winding up or liquidation or an administrator calls a meeting of, or enters into any arrangement or composition with creditors or if a receiver or manager or administrator or controller is appointed for any property or assets of the Customer or the Customer becomes subject to winding up by reason of insolvency or if any petition is presented for its winding up, or if a liquidator or provisional liquidator or administrator is appointed; or (b) if the Customer is a natural person, the Customer enters bankruptcy or a similar arrangement under any equivalent act in another jurisdiction.
22. Warranties must be requested by the Customer at the time of placing a formal order with details to be provided for the project regarding location, site conditions and the intended end use for the Goods. Warranties cannot be requested after the Goods are invoiced. Once a project has been installed the Customer must then fill out warranty request forms.
23. Subject to payment in full being made for the Goods, the Company will use its best endeavours to pass on to the Customer the benefit of any warranty received from the Original Manufacturer under clause 22 with respect to the Goods supplied to the Customer. In the event no warranty is issued then it is deemed that the Original Manufacture was unwilling to provide a warranty due to unacceptable site conditions or unacceptable use of the Goods.
24. The Customer acknowledges that the sole responsibility for performance of the Goods supplied lies with the Original Manufacturer of the Goods and not the Company. The Customer herein agrees upon placing an order to assign all liability for performance of the Goods from the Company to the Original Manufacturer including but not limited to all costs to replace the Goods and any other consequential losses.
25. The Goods supplied are predominantly metal materials supplied in coil form or flat sheet. The Customer acknowledges that the coil and sheet material from time to time contains minor variations, irregularities and defects with respect to colour, flatness, tension and surface spotting. The Customer also acknowledges that minor variations, irregularities and defects are due to the process of rolling metal material into coils and sheets and as a result the Goods may have occasional dents, buckles and creases. The Customer herein accepts that the Goods may present with minor variations, irregularities and defects and that it is not entitled to claim against the Company or the Original Manufacturer unless there is clear evidence of a significant manufacturing defect throughout the Goods supplied. The Company does not accept responsibility for minor variations, irregularities and defects once the Goods are installed.
26. The Goods supplied may have an adhered protective plastic coating to protect the surface of the Goods during the fabrication and installation process. The Company bears no responsibility if the adhered plastic proves more difficult to remove after installation. The plastic coating on occasion develops minor irregular surface bubbling during the plastic application process. The Company bears no responsibility for marks or discolouration associated with minor irregular surface bubbling on the Goods or where the Customer fabricates and installs the Goods without first notifying the Company of such surface bubbling. The Company does not accept responsibility for minor variations, irregularities and defects once the Goods are installed and the plastic is removed.
27. With respect to unpainted goods, the Original Manufacturer from time to time applies chemicals to the Goods surface in order to change the aesthetic texture, age and colour. The Customer acknowledges that as a result of the application of these chemicals that it is reasonable to expect variation in the aesthetic texture, age and colour of the Goods ordered or multiple orders of the Goods. The Company and the Original Manufacturer bear no responsibility for variations in the aesthetic texture, age and colour of the Goods ordered or multiple orders of Goods. Furthermore, as a result of the application of chemicals to the surface of the Goods the Customer herein acknowledges that significant variation may occur in the aging process of the Goods once they are installed and are subject to localised site conditions. The Company and the Original Manufacturer bears no responsibility regarding the onsite aging process once installed which can vary greatly based localised weather and external environmental conditions.
LIMITATION OF LIABILITY
28. These Terms and Conditions do not exclude, restrict or modify the application of any applicable laws of the Commonwealth, State or Territory, which cannot be excluded, restricted or modified.
29. It is the responsibility of the Customer to make due enquiry and investigation as to the suitability of the Goods for use under the National Construction Code. The Customer must satisfy themselves of the fitness of the goods for the particular purpose in question and suitability for use by making its own investigations and enquiries. The Company represents that the Goods are non-combustible as set out in the Certificates of Conformity.
30. The Customer does not rely on the skill or judgement of the Company or any person on the Company’s behalf. Performance of the Goods, once fabricated and installed on site, is dependent of whether the Goods have been used for the intended purpose and the conditions associated with the Warranty issued for the Goods and the Customer acknowledges, under clauses 22 to 24, that the liability for performance resides with the Original Manufacturer and accepts the assignment of liability to the Original Manufacturer.
31. In the case of Goods supplied by the Company to a Customer who is not a “Consumer” (as defined in the Competition and Consumer Act 2010 as amended from time to time (“the Act”), the Customer acknowledges and is not entitled to seek recovery for cost or damages (consequential or otherwise) once the Goods are fabricated or installed for matters outlined in clauses 25, 26 and 27. Otherwise, if the Goods do not correspond with the description of them on the invoice, or subject to clauses 25, 26 and 27, are deemed substantially defective, then provided that the Goods are preserved intact and made available for inspection by a representative of the Company and at the Company’s request are returned to the Company in the same order and condition as that in which they were delivered, the Company may at its option replace the Goods or reimburse the Customer for the amount of the purchase price paid for them, but any claim in this respect must be made in writing within 5 Business Days of the date discovery of the substantial defect.
32. Except for those conditions and warranties implied by the Act or other sale of goods or consumer protection legislation which may not be excluded, the Customer agrees that it has not relied on any inducement, recommendation, advice, representation, assistance or statement made by or on behalf of the Company in purchasing the Goods and there are no implied conditions or warranties herein and no collateral contracts in connection herewith (except such as may be in writing and signed by a duly authorised representative of the Company); and
33. Notwithstanding anything contained in these Terms and Conditions, the Company will not be liable for any loss, damage, or injury beyond the value of the Goods provided by the Company to the Customer. In no circumstances will the Company have any liability in respect of or arising out of or in connection with any special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred by the Customer.
34. The Company is not liable for any failure or delay in supply or delivery of the Goods where such failure or delay is wholly or partly due to any cause, event or circumstance whatsoever outside the reasonable control of the Company including, but not limited to shortages or unavailability of materials or labour, delays with respect to production or supply by international suppliers including defective production, breakdowns or accidents in relation to plant or machinery, transport delays, wars, strikes, lockouts, industrial disputes or unrest, restrictions or intervention imposed by any laws, regulations, governments or government agencies, fire, flood, act of God, breakdown of plant, transport delays, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind. The Company may in its absolute discretion elect to cancel any order affected by these circumstances by providing written notice to the Customer or may continue to fulfil such order in which case the Customer is not relieved of any obligation to accept or pay for such Goods.
CANCELLATIONS AND RETURNS
35. A Customer may request the Company to cancel an invoiced order. The Company may accept the cancellation at its sole discretion. For any order that is not a special order the Company is entitled to charge a processing and administrative fee of 10% for cancelled orders. In relation to special orders the Customer is not entitled to cancel an invoiced order.
36. The laws of New South Wales govern these Terms and Conditions and the parties agree to submit to the exclusive jurisdiction of the Courts of New South Wales.