CASA Materials – Terms and Conditions of Sale
(RELEASE 11 May 2020)
CASA Materials Pty Ltd
ACN 139 862 543 | ABN 99 139 862 543
CASA Systems Pty Ltd
ACN 139 861 411 | ABN 38 139 861 411
4/39 King Road, HORNSBY NSW 2077
Tel: (02) 9482 4166 | Web: www.casa-group.com.au
TERMS AND CONDITIONS
1. In this agreement, the following terms shall have the following meanings:
‘Company’ means either CASA Materials Pty Ltd ACN 139 862 543 or CASA Systems Pty Ltd ACN 139 861 411 and their Related Bodies Corporate (as that term is defined in the Corporations Act 2001).
‘Customer’ means the person, firm, organisation, partnership, corporation, trustee of a trust (including its successors and permitted assigns) or other entity that is placing an order with the Company for Goods and/or Services.
‘Goods’ means all goods supplied by the Company to the Customer, including but not limited to coil metal materials, flat metal sheet materials, fabricated metal sheet products, fabricated metal rainwater products and other consumables used for metal roofing and wall cladding (and where the context so permits shall include any supply of Services as hereinafter defined) and as are described on the invoices, quotation, or any other forms as provided by the Company to the Customer.
‘Services’ means all services supplied by the Company to the Customer (and where the context so permits shall include any supply of Goods as described above).
2. The Company carries Standard Coils and Sheets (comprising mainly one (1) tonne coil metal materials and flat metal sheet materials in standard gauges, widths, surface finishes and colours) as local stock and any request by a Customer for Goods that are not Standard Coils and Sheets are considered to be a special order (Special Order).
3. The Customer acknowledges that the Company does not guarantee that Standard Coils and Sheets will always be held and be available as local stock. Normal lead times for Goods not in stock including Special Orders is fifteen (15) to eighteen (18) weeks (or longer) depending on manufacturer’s lead time and freight.
4. Subject to clause 5, the terms of payment are strictly thirty (30) days from the date of invoice (or such other period as nominated by the Company herein). The Company may, at any time, vary the terms of payment in accordance with the provisions of this agreement.
5. Where the Customer does not have an approved commercial credit account with the Company, payment shall be, at the Company’s discretion, due and payable:
(a) on or prior to delivery of the Goods or Services; or
(b) by the date nominated by the Company’s invoice(s).
6. The Customer must check all invoices and advise the Company of any errors or omissions within seven (7) days of receipt. Failing advice from the Customer that the invoice contains any errors or omissions, the invoice may be deemed accepted by the Company.
7. Should the Customer not pay for the Goods or Services supplied by the Company in accordance with the credit terms as provided herein, or as agreed in writing by the Company and Customer from time to time, after issuing a written demand to the Customer demanding payment within fourteen (14) days, the Company will be entitled to charge an administration fee of ten (10) percent of the amount of the invoice payable.
8. The Customer acknowledges that the Company shall be at liberty to charge a surcharge for credit card transactions equal to the merchant fees incurred by the Company.
PURPOSE OF CREDIT
9. The Customer acknowledges and agrees that any credit to be provided to the Customer by the Company is to be applied wholly or predominantly for commercial purposes.
FORMATION OF CONTRACT
10. Quotations are exclusive of GST and shall remain valid for a period of thirty (30) days from the date of quotation, unless otherwise specified in writing. The Company, in its sole discretion, reserves the right to withdraw, vary or extend any quotation at any time prior to the formation of a contract in accordance with clause 11.
11. Quotations made by the Company will not be construed as an offer or obligation to supply in accordance with the quotation. The Company reserves the right to accept or reject, at its discretion, any offer to purchase received by it upon provision of written reasons to the Customer. Only written acceptance by the Company of the Customer’s offer will complete a contract.
12. Placement of an order, either verbally or in writing, will imply acceptance of the Company’s offer and of these terms and conditions, and any other terms and conditions of sale stipulated on individual invoices issued by the Company.
13. At the Company’s sole discretion, a deposit may be required. The deposit amount or percentage of the price due will be stipulated at the time of the order of the Goods and/or Services and shall immediately become due and payable upon the formation of a contract in accordance with clause 11.
14. The Company may receive requests from Customers for Special Orders 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 will require a formal order and payment of a deposit by the Customer in accordance with clause 13.
15. The Customer may place reservations with the Company for Standard Coils and Sheets only. The Company has the right to accept or reject any reservation request at its sole discretion.
16. The Customer acknowledges that a reservation does not secure title to the Standard Coils and Sheets. The Company can cancel any unvoiced reservation with 48 hours’ notice to the Customer. The Customer is not entitled to claim loss and/or damage (consequential or otherwise) from the Company as a result of any cancellation of a reservation or where the reserved Standard Coils and Sheets are not available. The reservation period granted by the Company to a Customer is at the Company’s discretion and agreed on a case by case basis, but will not exceed 2 months, where if a formal order is not placed by the Customer during the reservation period granted by the Company, then the Standard Coils and Sheets will be transferred back to available stock.
17. Where the Customer requests or directs that any Goods and/or Services be supplied that are not strictly in accordance with the quotation or order, then such Goods and/or Services shall constitute a variation, unless otherwise agreed between the parties.
18. The Customer understands and agrees that:
(a) all variations must be agreed between the parties in writing prior to the Goods and/or Services being supplied; and
(b) all variations shall be, at the Company’s discretion, invoiced at the rate(s)/prices specified in the quotation, as specifically quoted, or in accordance with the Company’s current price list (as amended from time to time).
19. Notwithstanding clauses 17 and 18, and subject to any rights the Customer might have under any relevant legislation, the Company reserves the right to vary the quoted price if:
(a) there is any movement in the cost of supplying the Goods and/or Services specified in the Customer’s order;
(b) the Goods and/or Services specified in the Customer’s order are varied from the Goods and/or Services specified in the Company’s quotation; or
(c) otherwise provided for in these terms and conditions.
CANCELLATION OF ORDERS
20. Unless otherwise agreed in writing between the parties, the Customer may not cancel an order (or any part of an order) unless the Customer pays to the Company (in the Company’s sole discretion) any and all costs incurred by the Company in relation to the cancelled order (or cancelled part of an order) up until and including the date of cancellation.
21. Notwithstanding any other rights the Company may have under this agreement, the Company may cancel any order or delivery of any order, by providing written notice to the Customer if the Customer:
(a) defaults in making payment of the deposit in accordance with clause 13;
(b) defaults in payment of any invoice by the due date;
(c) enters into liquidation or, in the case the Customer is an individual, becomes bankrupt; or
(d) breaches an essential term of this agreement.
22. To the fullest extent permitted by law, the Company accepts no liability for any loss whatsoever incurred by the Customer or any third party as a result of the Company exercising its rights under clause 21.
23. The Company will deliver to the address detailed in the Customer’s order, or to such other place as agreed by the Company in writing and reserves the right to arrange transport of the Goods by any means in its absolute discretion.
24. The Customer shall be liable for all costs associated with delivery, including freight, insurance, handling and other charges, including all costs consequential upon the Customer’s failure or unwillingness to accept delivery of the Goods, unless otherwise agreed in writing.
25. The Customer acknowledges and accepts that any estimated delivery or supply of Goods provided by the Company including Special Orders are an estimate only and the Company will not be liable for any loss suffered by the Customer as a result of any delay in the delivery of Goods or non-delivery of the Goods.
26. Delivery will be made within normal business hours between Monday to Friday, 8.00am to 5.00pm only (unless otherwise agreed to in writing).
27. Delivery is deemed to occur at the earlier of:
(a) the collection of Goods from the Company by the Customer or any third party on behalf of the Customer;
(b) the time of loading of Goods at the Company’s premises for the purpose of delivery to the Customer.
28. The Customer is responsible for unloading all Goods delivered by the Company or any third party on behalf of the Company.
29. Notwithstanding clause 28, the Company or its nominated carrier may, at the request of the Customer, unload the Goods at the nominated delivery site(s). The Company, to the extent permitted by law, accepts no liability for any claim, cause of action, liability, or injury arising out of, or incidental to, unloading the Goods at the nominated delivery site(s).
30. The Customer acknowledges that the Company is entitled to charge the Customer:
(a) a reasonable fee for storage and/or redelivery charges in the event the Customer does not, or is unable to, accept delivery of the Goods; and
(b) for any costs which the Company incurs as a result of any delay in the delivery of the Goods caused by the Customer, its agents, or employees.
31. The Customer accepts that the Company may deliver Goods by instalments and require payment for each separate instalment in accordance with these terms and conditions.
32. The Customer acknowledges and accepts that it is not relieved from any obligation arising under these terms and conditions by reason of any delay in delivery.
STORAGE OF GOODS
33. If the Customer:
(a) requests that the Company stores any Goods at its premises beyond the delivery date initially specified by the Company (or as agreed between the parties) (Specified Delivery Date);
(b) does not, or is unable to, accept delivery of any Goods by the Specified Delivery Date; or
(c) fails to collect any Goods by the Specified Delivery Date,
then the Company may at its discretion charge the Customer a reasonable fee for the storage of any Goods for each day the Goods remain undelivered and/or uncollected.
34. Notwithstanding clause 33, and for the avoidance of any doubt, the Company reserves the right to:
(a) charge the Customer a reasonable storage fee where the Customer has requested that an order be stored by the Company and be delivered in instalments;
(b) at any time from the Specified Delivery Date issue an invoice to the Customer; and
(c) in the event that any Goods remain undelivered and/or uncollected for at least ninety (90) days from the Specified Delivery Date, deliver those Goods to the Customer’s nominated address.
35. The Customer must inspect the Goods immediately upon delivery and must within three (3) business days after the date of inspection give written notice to the Company with particulars of any claim that the Goods are not in accordance with this agreement. Further, the Customer must, upon request from the Company, allow the Company to enter upon any premises occupied by the Customer to inspect the Goods that are subject of the claim. If the Customer fails to give notice or refuses to allow the Company to inspect the Goods, then to the extent permitted by law, the Goods must be treated as having been accepted by the Customer and the Customer must pay for the Goods in accordance with these terms and conditions.
36. The Customer cannot return Goods to the Company without the written agreement of the Company and the Company will under no circumstances accept return of Goods which are subject to a Special Order.
37. The Customer acknowledges and agrees that any return, other than a return due to a default by the Company under this agreement or as otherwise permitted by law, will incur a handling and administration charge of ten (10) percent of the purchase price of the returned Goods.
38. Unless otherwise agreed in writing between the parties, the Customer must pay all costs associated with the return of any Goods (either to the Company or from the Company to the Customer or any third party) including freight, insurance, handling and other charges. Goods to be returned to the Company must be packed and wrapped appropriately and must include all original packaging and documentation. The Company accepts no liability for any damage that occurs to any Goods in return transit.
39. Risk of damage to or loss of the Goods passes to the Customer on delivery and the Customer must insure the Goods on or before delivery.
40. 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 to the extent of the indebtedness of the Customer to the Company. The production of these terms and conditions 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 further enquires.
41. If the Customer requests that Goods are delivered either to an unattended location, left outside, or are left outside the Company’s premises for collection, the Customer acknowledges that the Company will deliver the Goods as requested at the Customer’s risk.
RETENTION OF TITLE
42. Until such time as the Customer has made payment in full for the Goods and until such time as the Customer has made payment in full of all other money owing by the Customer to the Company (whether in respect of money payable under a specific contract or on any other account whatsoever):
(a) title in the Goods does not pass to the Customer;
(b) the Customer agrees that property and title in the Goods will not pass to the Customer and the Company retains the legal and equitable title in those Goods supplied and not yet sold;
(c) the Customer will hold the Goods in a fiduciary capacity for the Company and agrees to store the Goods in such a manner that they can be identified as the property of the Company, and will not mix the Goods with other similar Goods; and
(d) the Customer will be entitled to sell the Goods in the ordinary course of its business but will sell as agent and bailee for the Company and the proceeds of sale of the Goods will be held by the Customer on trust for the Company absolutely.
43. The Customer’s indebtedness to the Company, whether in full or in part, will not be discharged by the operation of clause 42(d) hereof unless and until the funds held on trust are remitted to the Company.
44. The Customer agrees that whilst property and title in the Goods remains with the Company, the Company has the right, with prior notice to the Customer, to enter upon any premises occupied by the Customer (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Customer) to inspect the Goods of the Company and to repossess the Goods which may be in the Customer’s possession, custody or control when payment is overdue.
45. The Customer will be responsible for the Company’s reasonable costs and expenses in exercising its rights under clause 44 where the Customer is otherwise in default of the terms of this agreement. Where the Company exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Customer against the Company, its employees, servants or agents.
46. The Customer agrees that where the Goods have been retaken into the possession of the Company, the Company has the absolute right to sell or deal with the Goods, and if necessary, sell the Goods with the trademark or name of the Customer on those Goods, and the Customer hereby grants an irrevocable licence to the Company to do all things necessary to sell the Goods bearing the name or trademark of the Customer.
47. For the avoidance of doubt, the Company’s interest constitutes a ‘purchase money security interest’ pursuant to the PPSA.
CANCELLATION OF TERMS OF CREDIT
48. The Company reserves the right to withdraw credit at any time upon provision of 48 hours’ written notice.
49. Notwithstanding clause 48, if the Customer defaults in the payment of any amount due to the Company pursuant to this agreement and does not cure such default within seven (7) days after being given notice of such default, the Company may terminate this agreement (to be effective immediately) upon notice to the Customer.
50. Upon the withdrawal of credit in accordance with clause 48, or upon termination of this agreement in accordance with clause 49, all liabilities incurred by the Customer become immediately due and payable to the Company.
51. For the avoidance of doubt, termination of this agreement will not affect:
(a) the right of any party to whom money is owed hereunder at the time of termination to receive that money according to the provisions hereof; and
(b) the rights and/or obligations pursuant to this agreement which by their nature are intended to survive termination of this agreement.
52. 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.
53. 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 in accordance with clause 52 with respect to the Goods supplied to the Customer.
54. The Customer acknowledges that, in the event no warranty is issued, it is deemed that the original manufacture was unwilling to provide a warranty due to unacceptable site conditions or unacceptable use of the Goods.
55. 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, to the extent permitted by law, 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.
CONSUMERS’ RIGHTS UNDER THE AUSTRALIA CONSUMER LAW
56. Clauses 57 and 58 apply only in circumstances where the Customer is considered to be a ‘consumer’ for the purposes of Schedule 2 of the Competition and Consumer Act 2010 (Australian Consumer Law).
57. The Company’s Goods and Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, the Customer is entitled:
(a) to cancel its service contract with the Company; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
58. The Customer is also entitled to choose a refund or replacement for major failures with Goods. If a failure with the Goods or a Service does not amount to a major failure, the Customer is entitled to have the failure rectified in a reasonable time. If this is not done the Customer is entitled to a refund for the Goods and to cancel the contract for the Service and obtain a refund of any unused portion. The Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Goods or Service.
59. Where the Customer is not considered to be a ‘consumer’ under the Australian Consumer Law, then the Company’s liability shall be limited, to the extent permitted by law, in accordance with clauses 91 to 96 hereof.
60. The Customer agrees to indemnify the Company and keep the Company indemnified against any claim that arises out of the Goods or Services supplied under this agreement to the extent that such a claim is a consequence of a default by the Customer under the terms of this agreement. This indemnity includes any legal fees and expenses the Company incurs in order to enforce its rights, on an indemnity basis.
PROVISION OF FURTHER INFORMATION
61. The Customer undertakes to comply with any reasonable written requests by the Company to provide further information for the purpose of assessing the Customer’s creditworthiness, including an updated credit application.
62. If the Customer is a corporation (with the exception of a public listed company), it must advise the Company of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders the Company may ask for its directors to sign a guarantee and indemnity.
63. If the Customer is a corporation, the Customer warrants that all of its directors have signed this agreement and acknowledges that all of its directors may be required to enter into a guarantee and indemnity with the Company in relation to the Customer’s obligations to the Company.
64. If the Customer is the trustee of a trust (whether disclosed to the Company or not), the Customer warrants to the Company that:
(a) the Customer enters into this agreement in both its capacity as trustee and in its personal capacity;
(b) the Customer has the right to be reasonably indemnified out of trust assets;
(c) the Customer has the power under the trust deed to sign this agreement; and
(d) the Customer will not retire as trustee of the trust or appoint any new or additional trustee without advising the Company and having the new or additional trustee sign an agreement on substantially the same terms as this agreement.
65. The Customer must give the Company a copy of the trust deed upon request.
66. If the Customer enters into this agreement in its capacity as a partnership, the Customer warrants that all of the partners have signed this agreement and that all of the partners may be required to enter into a guarantee and indemnity with the Company in relation to the Customer’s obligations to the Company.
67. If the Customer is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Company. In the case of a change of partners, the Company may ask for new guarantors to sign a guarantee and indemnity.
68. If the Customer becomes insolvent, to the extent permitted by law, the Customer remains liable under this agreement for payment of all liabilities incurred hereunder. The Customer remains liable under this agreement even if the Company receives a dividend or payment as a result of the Customer being insolvent.
69. A waiver of any provision or breach of this agreement by the Company must be made by an authorised officer of the Company in writing. A waiver of any provision or breach of this agreement by the Customer must be made by the Customer’s authorised officer in writing.
70. Until ownership of the Goods passes, the Customer waives its rights it would otherwise have under the PPSA (unless otherwise agreed to in writing by the Company and the Customer:
(a) under section 95 to receive notice of intention to remove an accession;
(b) under section 118 to receive notice that the Company intends to enforce its security interest in accordance with land law;
(c) under section 121(4) to receive a notice of enforcement action against liquid assets;
(d) under section 129 to receive a notice of disposal of Goods by the Company purchasing the Goods;
(e) under section 130 to receive a notice to dispose of Goods;
(f) under section 132(1) to receive a statement of account following disposal of Goods;
(g) under section 132(4) to receive a statement of account if no disposal of Goods for each six (6) month period;
(h) under section 135 to receive notice of any proposal of the Company to retain Goods;
(i) under section 137(2) to object to any proposal of the Company to retain or dispose of Goods;
(j) under section 142 to redeem the Goods;
(k) under section 143 to reinstate the security agreement; and
(l) under section 157(1) and 157(3) to receive a notice of any verification statement.
71. The Customer charges in favour of the Company all of its estate and interest in any real property, whether held in its own right or as capacity as trustee, the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged.
72. The Customer charges in favour of the Company all of its estate and interest in any personal property, whether held in its own right or as capacity as trustee, the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged.
73. As security for the payment of the amount of its indebtedness to the Company from time to time, the Customer irrevocably appoints as its duly constituted attorney the Company’s company secretary from time to time to execute in the Customer’s name and as the Customer’s act and deed any real property mortgage, bill of sale or consent to any caveat the Company may choose to lodge against real property that the Customer may own in any Land Titles Office in any state or territory of Australia, even though the Customer may not have defaulted in carrying out its obligations hereunder upon written notice and demand to the Customer (in the event that there is no default by the Customer in carrying out its obligations hereunder).
74. Where the Customer has previously entered into an agreement with the Company by which the Customer has granted a charge, mortgage or other security interest (including a security interest as defined in the Personal Property Securities Act 2009 (PPSA)) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in this agreement and will secure all indebtedness and obligations of the Customer under this agreement. The Company may, at its election and upon the provision of written notice, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
75. The Customer must pay for its own legal, accounting and business costs and all costs incurred by the Company relating to any default by the Customer under this agreement. The Customer must also pay for all stamp duty and other taxes payable on this agreement (if any).
76. The Customer will pay the Company’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Customer, including collection costs, debt recovery fees and legal costs on an indemnity basis.
77. Subject to clauses 78 and 79, payments by, or on behalf of, the Customer will be applied by the Company as follows.
(a) Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 45 and 76.
(b) Secondly, in payment of any interest incurred in accordance with clause 82.
(c) Thirdly, in payment of the outstanding invoice(s), or part thereof in an order determined by the Company in its absolute discretion.
78. To the extent that payments have been allocated to invoices by the Company in its business records, the Company may, at its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at the Company’s absolute discretion, including in a manner inconsistent with clause 77 herein.
79. Payments allocated (and/or reallocated) under clause 77 and/or 78 will be treated as though they were allocated (and/or reallocated) in the manner determined by the Company on the date of receipt of payment.
TAXES AND DUTY
80. The Customer must pay GST on any taxable supply made by the Company to the Customer under this agreement. The payment of GST is in addition to any other consideration payable by the Customer for a taxable supply.
81. If as a result of:
(a) any legislation becoming applicable to the subject matter of this agreement; or
(b) any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration;
the Company becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Customer, then the Customer must pay the Company these additional amounts on 48 hours’ written demand.
82. The interest rate on any outstanding debts is a fixed rate of ten (10) percent per annum.
83. The copyright in all designs, drawings, specifications and data (collectively, Designs) prepared or compiled by the Company shall remain in the Company and the Customer shall not have the right or license to use such Designs without the express written consent of the Company.
84. All Designs supplied by the Company shall remain the absolute property of the Company and no part of any such Designs are to be divulged to any third party without the prior written consent of the Company.
85. Where any Designs have been supplied by the Customer, the Customer warrants that the use of those Designs does not infringe the intellectual property rights of any third party. Further, the Customer agrees to indemnify the Company against any claim arising from the use of Designs supplied by the Customer where such Designs infringe or are alleged to infringe the intellectual property rights of any third party.
86. All payments required to be made by the Customer under this agreement will be made free of any set-off, or counterclaim and without deduction or withholding, unless agreed to otherwise by the Company and the Customer in writing or as required by law.
87. 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.
88. The Customer acknowledges the Goods may, from time to time, contain 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 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 accepts no responsibility for minor variations, irregularities and defects once the Goods have been installed.
89. 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/or 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.
90. 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 bears 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 of the Goods once installed which can vary greatly based localised weather and external environmental conditions.
LIMITATION OF LIABILITY
91. In relation to the supply of Goods, to the fullest extent permitted by law, the Company’s liability to the Customer whether under contract, in tort, pursuant to statute or otherwise for any loss, damage or injury is limited to, at the option of the Company:
(a) the replacement of the Goods or the supply of equivalent Goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or acquiring equivalent Goods;
(d) the payment of the cost of having the Goods repaired.
92. In relation to the supply of Services, to the fullest extent permitted by law, the Company’s liability to the Customer whether under contract, in tort, pursuant to statute or otherwise for any loss, damage or injury is limited to, at the option of the Company:
(a) supplying the Services again; or
(b) providing for the cost of having the Services supplied again.
93. The Company is not liable for loss of profit, economic or financial loss, liquidated damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Customer as a result of the Goods and/or Services supplied under this agreement.
94. The only conditions and warranties binding on the Company in respect of:
(a) the state, quality or condition of the Goods supplied by it to the Customer; or
(b) advice, recommendations, information or services supplied by the Company to the Customer regarding the Goods and their use and application,
are those imposed and required to be binding by statute (including the Competition and Consumer Act 2010 (Cth)) and all other conditions and warranties are excluded.
95. Nothing in this agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any Goods and/or Services pursuant to this agreement of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.
96. The Customer warrants that it does not rely on the skill or judgment of the Company or any person acting or purporting to act on the Company’s behalf. Performance of the Goods, once fabricated and installed on site, is dependant 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 that liability for performance remains with the original manufacturer and accepts the assignment of liability to the original manufacturer.
97. The Company is not liable for any loss caused to the Customer by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, supplier or manufacturer shortages, plant or mechanical breakdown, disease or pandemic, government intervention, acts of God or any other activity beyond the Company’s control (Force Majeure Event). The Company may in its absolute discretion elect to fulfil or cancel any order affected by a Force Majeure Event by providing written notice to the Customer.
98. The Customer acknowledges that it is their responsibility to make due enquiries and investigations 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.
99. The Customer will, at the request of the Company, execute documents and do such further acts as may be required for the Company to register pursuant to the PPSA the security interest granted by the Customer under the PPSA.
100. The Customer agrees to accept service of any document required to be served, including any notice under this agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the Company by the Customer or the Customer’s authorised representative.
101. The Customer further agrees that where the Company has rights in addition to those under part 4 of the PPSA, those rights will continue to apply.
102. The Customer irrevocably grants to the Company the right to enter upon the Customer’s property or premises, with notice, and without being in any way liable to the Customer or to any third party, if the Company has cause to exercise any of its rights under sections 123 and/or 128 of the PPSA, and the Customer shall reasonably indemnify the Company from any claims made by any third party as a result of such exercise.
103. If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
104. If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.
VARIATION OF AGREEMENT
105. The Customer agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of the Company at any time by written notice to the Customer. Subject to clause 107, after fourteen (14) days of receipt of the written notice of the variation(s), the variation(s) will be deemed agreed by the Customer.
106. If the Customer does not agree with the variation(s) proposed by the Company, it must notify the Company in writing within fourteen (14) days from receipt of the written notice that the variation(s) is/are not agreed to. The Company and/or the Customer will then be at liberty to suspend/withdraw credit facilities until such time as agreement can be reached between the parties regarding the proposed variation(s). Clerical errors (such as spelling mistakes or grammatical errors) may be subject to correction by the Company without notification.
107. Any proposed variation to these terms and conditions by the Customer must be requested in writing. The Company may refuse any such request without providing reasons either orally or in writing.
108. Variations requested by the Customer will only be binding upon the Company if they are in writing signed by an authorised officer of the Company.
CONSENT TO REGISTER
109. The Customer hereby consents to the Company recording the details of this agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by the Company to achieve such registration.
110. The Customer waives any right or entitlement to receive notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.
111. The Customer acknowledges and agrees that this agreement will be governed by the laws of New South Wales, and the laws of the Commonwealth of Australia which are in force in New South Wales.
112. The Customer acknowledges and agrees that any contract for the supply of Goods or Services between the Company and the Customer is formed at the address of the Company.
113. The parties to this agreement submit to the non-exclusive jurisdiction of the courts of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.
114. This agreement constitutes the entire agreement between the parties relating in any way to its subject matter, unless agreed to otherwise by the Company and the Customer in writing. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
115. Notwithstanding the preceding paragraph, in circumstances where there is a pre-existing written credit agreement (Original Agreement) between the Customer and the Company, these terms and this agreement will constitute a variation of the Original Agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by the terms herein in which case they will co-exist with the terms herein, and, to the extent of any inconsistency, these terms will prevail.
116. For the avoidance of doubt, the Customer understands and agrees that these terms will prevail over, and the Company will not be bound by, any conditions (express or implied) added or provided by the Customer, whether in an order or otherwise, unless otherwise agreed in writing by the Company.
117. The Customer agrees to the terms of the Privacy Statement pursuant to the Privacy Act 1988 contained in this document.
1. This privacy statement encompasses consents, notifications and disclosures under or in relation to the Privacy Act 1988 (Act).
2. The terms of this statement operate concurrently with any pre-existing privacy statement, authorisation or notification, whether contained in our credit application, terms and conditions of trade or otherwise, save to the extent of any inconsistency in which case the terms of this privacy statement shall prevail.
3. For the purpose of this statement, the terms “personal information”, “sensitive information”, “credit eligibility information”, “credit information”, “commercial credit purpose”, “credit guarantee purpose”, “consumer credit purpose”, “credit reporting body”, “credit provider”, “credit reporting information”, “credit reporting code” carry the same meaning as under the Act and the term “Information” means personal information, sensitive information, credit eligibility information, credit reporting information and credit information, both severally and collectively.
4. The Company may collect personal information about the Customer and/or Guarantor(s) for the Company’s primary purposes which include the assessment of a credit application, reviewing existing credit terms, assessing credit worthiness, collecting overdue payments, assessing credit guarantees (current and prospective), internal management purposes, marketing, sales and business development purposes and direct marketing.
5. The Customer and/or Guarantor(s) consent to the Company collecting, using and disclosing personal information (including sensitive information) for both their primary purposes specified herein and purposes other than the primary purposes, including the purpose of direct marketing.
6. The Company may collect, and may already have collected, Information from the Customer and/or Guarantor(s), other credit providers, credit reporting bodies and other third parties for the purposes of its functions and activities including, but not limited to, credit, sales, marketing and administration. If the Information was not collected by the Company it may restrict or impede upon the Company trading with, extending credit to, continuing to extend credit to or extending further credit to the Customer and/or Guarantor(s) or their related bodies corporate.
7. The Customer and/or Guarantor(s) consent to the Company obtaining and making disclosure of Information about the Customer and/or Guarantor(s) from and to a credit reporting body and/or another credit provider for a commercial credit related purpose and/or a credit guarantee purpose and/or a consumer credit purpose and/or another related purpose. The Company notifies the Customer and/or Guarantor(s) that it may use and/or disclose credit eligibility information under section 21G of the Act.
8. The Company may provide personal information about the Customer and/or Guarantor(s) to any of the credit reporting bodies nominated below. The Company intends to disclose default information to any of the credit reporting bodies listed below. The Customer and/or Guarantor(s) consent to such disclosure. The Company’s credit reporting policy contains a statement of notifiable matters in accordance with s21C of the Act and items 4.1 and 4.2 of the Credit Reporting Code in respect of disclosure to credit reporting bodies including what the information may be used for, what the Company may disclose and the Customer’s and/or Guarantor(s)’ right to request limitations to the use of their information.
Level 15, 100 Arthur Street
NORTH SYDNEY NSW 2060
Tel: 1300 921 621
Level 13, 109 Pitt Street
SYDNEY NSW 2000
Tel: 1300 501 312
Level 2, 165 Grenfell St
ADELAIDE SA 000
Tel: 1800 882 820
Level 2, 143 Coronation Drive
MILTON QLD 4064
Tel: 07 3360 0600
Level 6, 549 St Kilda Road
MELBOURNE VIC 3004
Tel: 03 9699 0100
9. The Company may disclose Information to, and about them and the Customer and/or Guarantor(s) hereby acknowledge that they consent to the disclosure of such information to the Company’s employees, subsidiaries, employees, agents and related bodies corporate, past, present or prospective credit providers of the Customer and/or Guarantor(s) or their related bodies corporate, including for the purpose of that person considering whether to offer to act as guarantor or offer security for that credit, and/or overseas recipients and recipients who do not have an Australian link in countries including New Zealand.
10. By reason of the Customer’s and/or Guarantor(s)’ consent to the disclosure to overseas recipients hereunder, APP 8.1 will not apply to the Company’s dealing with the Customer’s and/or Guarantor(s)’ Information.
12. The Customer and/or Guarantor(s) will be deemed to have acknowledged and accepted the terms of this privacy statement by either signing and returning this statement, failing to provide written notification to the Company within fourteen (14) days of receipt of this statement that its terms are not accepted, continuing to trade with the Company after receipt of this Statement or, if the Customer and/or Guarantor(s) are directors or guarantors of a customer, by not taking steps to prevent the customer from continuing to trade with the Company after receipt of this statement.