TERMS AND CONDITIONS
1 Dictionary
In these Terms and Conditions, the words below have the following meanings:
Account Application means the form approved by the Company and completed by the Commercial Customer for an account with the Company for the provision of Goods and/or Services.
Agreement means each Offer which is accepted by the Company under clause 3.2.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
Business Day means any day except a Saturday, Sunday or public holiday in Victoria.
Commercial Customer means in respect of a person who has:
(a) requested that Goods and/or Services be supplied to it by the Company; and
(b) has been granted an account under the Account Application, the entity or person named in the Account Application.
Company means B.A.M. & Associates Proprietary Limited (ABN 93 004 562 065) trading as Bamstone.
Confidential Information means all information and other content disclosed by the Disclosing Party to the Receiving Party (and in respect of the Company as the Disclosing Party includes these Terms and the prices of the Goods or Services) but excludes information that:
(a) is public knowledge or becomes available to the Receiving Party from a source other than the Disclosing Party (otherwise than as a result of a breach of confidentiality); or
(b) is rightfully known to, or in the possession or control of the Receiving Party and not subject to an obligation of confidentiality in accordance with the terms of an Agreement.
Consequential Loss means:
(a) any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and
(b) any loss beyond the normal measure of damages.
Consumer has the meaning provided to it in section 3 of the Australian Consumer Law.
Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.
Customer means a Commercial Customer or a Retail Customer.
Default Rate means the interest rate which is fixed from time to time under section 2 of the Penalty Interest Rate Act 1983 (Vic).
Delivery Fee means:
(a) the delivery fee set out in a Quote or agreed in writing between the parties; or
(b) if no delivery fee is set out in a Quote or agreed in writing between the parties, the costs of the Company incurred in delivering the Goods to the Customer or, if the Customer is to collect the Goods, the cost incurred by the Company in having the Goods delivered to the Company’s depot for collection by the Customer.
Deposit means an amount equal to 30% of the price specified in the Quote or Order (as applicable) or such other amount as agreed between the Company and the Retail Customer.
Disclosing Party means a party who discloses its Confidential Information to the Receiving Party.
Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party.
Goods means the goods to be supplied by the Company to the Customer under an Agreement.
Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the preceding events.
Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world.
Invoice has the meaning provided to it in clause 5.4.
Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.
Offer has the meaning provided to it in clause 3.1.
Order means any order or other request by or for the Customer to the Company for it to supply to the Customer any Goods and/or provide it with any Services, whether such order or request is written, verbal or implied in the circumstances and which may have been given in response to a Quote.
PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
Purchase Price has the meaning provided to it in clause 5.1, as may be varied under clause 5.2.
Quotation or Quote means a quote or proposal, if any, provided by the Company to the Customer in respect of the Goods and/or Services.
Receiving Party means a party who receives Confidential Information from or on behalf of the Disclosing Party.
Retail Customer means in respect of a person who has:
(a) requested that Goods and/or Services be supplied to it by the Company; and
(b) has not been granted an account under the Account Application, the person requesting the Goods and/or Services be supplied to it.
Services means the services to be supplied by the Company to the Customer under an Agreement.
Specifications means any physical, qualitative, technical or descriptive specifications, dimensions, weights or other particulars of the Goods or Services which are supplied by the Company or which may be available on the internet, including as provided in any Quote, Order, price list, catalogue, brochure or other document which describes the Goods or Services.
Tax or Taxes means any tax, levy, duty, charge, impost, fee, deduction, compulsory loan or withholding, which is assessed, levied, imposed or collected by any government agency, and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any such amounts.
Terms means these Terms and Conditions.
Trading Limit means the value of any trading account facility granted by the Company to the Customer pursuant to any account created under the Account Application.
2 Application
These Terms apply to and govern the supply by the Company of Goods and provision of Services to the Customer from time to time and, more specifically, apply to and govern the supply by the Company of Goods and/or Services to the Customer which are to be provided under an Offer accepted by the Company.
3 Formation of Agreement
3.1 The Customer acknowledges and agrees that by submitting an Order the Customer makes an offer to the Company for the Company to supply it with the Goods and/or provide it with the Services on the terms of:
(a) these Terms;
(b) the Order; and
(c) the Quote (if any),
(Offer).
3.2 A contract will be formed between the Company and the Customer in respect of each Offer upon the earlier of:
(a) the Company notifying the Customer in writing that it accepts the Customer’s Offer;
(b) the Company accepting, in full or part, payment from the Customer for any Goods or Services the subject of the Offer;
(c) the Customer accepting delivery of the Goods or the performance of the Services the subject of the Offer to the Customer; or
(d) the Company otherwise confirming its acceptance of the Offer.
3.3 An Agreement formed under clause 3.2 will comprise these Terms, any Account Application, the Order (only to the extent that any additional terms in the Order are accepted by the Company in writing) and the Quote (if any).
3.4 The Company is not bound to accept any Offer and may decide not to accept any Offer for any reason and in the sole discretion of the Company.
4 Deposit
4.1 The Company may require that a Retail Customer pay a Deposit to the Company at the time of making the Offer.
4.2 Subject to clause 4.3, the Deposit shall not be refundable and the Company shall be entitled to keep the Deposit at the time it accepts the Offer.
4.3 The Deposit shall be refundable only if:
(a) the Company does not accept the relevant Offer or cancels the relevant Offer under clause 19; or
(b) the Customer terminates the relevant Agreement under clause 18.2.
5 Price and payment
5.1 Unless otherwise agreed by the parties, the price the Customer must pay for the Goods and/or Services under each Agreement will be:
(a) the price for the Goods and/or Services specified in the Quote or, if there is no Quote, in the Order; plus
(b) the Delivery Fee,
(Purchase Price).
5.2 The Company may amend the Purchase Price or the Delivery Fee by notice in writing to the Customer by the amount of any:
(a) increase in the price of fuel electricity or gas used to manufacture or deliver the Goods;
(b) increase in the amount charged by any third party freight or transport service provider for the delivery of the Goods; or
(c) new Tax or increase in existing Tax, which is imposed on the Company since the date the Offer for the Goods was accepted. Where the Company amends the Purchase Price or Delivery Fee under this clause 5.2 it will give the Customer as much notice as reasonably possible of the change in the Purchase Price or Delivery Fee.
5.3 Subject to clause 16, unless otherwise expressly specified by the Company or in these Terms, all prices stated are stated exclusive of Taxes and the Customer is solely responsible for the payment of all Taxes levied or payable in respect of the Goods and/or Services and must immediately upon request by the Company provide the Company with evidence of payment of any Taxes. Nothing in this clause 5.3 requires the Customer to pay Taxes that are assessed or payable in respect of the income of the Company.
5.4 The Company may invoice the Customer for the Purchase Price at any time following formation of the relevant Agreement (Invoice).
5.5 Subject to clause 5.6, unless otherwise agreed in writing between the Customer and the Company the due date for payment by the Customer to the Company of the Purchase Price for the Goods and/or Services supplied pursuant to an Agreement (Due Date) is:
(a) in respect of a Retail Customer, prior to the Retail Customer taking possession of the Goods;
(b) in respect of a Commercial Customer:
(i) the due date agreed by the Company when accepting the Account Application but only if the value of the Invoice, combined with any outstanding amounts owed by the Customer to the Company, does not exceed any approved Trading Limit; or
(ii) if the conditions set out in paragraph (i) are not satisfied, prior to the scheduled date of delivery for the Goods or provision of the Services.
5.6 If:
(a) the Customer has previously failed to make any payment to the Company by the due date for that payment (whether under these Terms or otherwise); or
(b) the creditworthiness of the Customer is, in the Company’s sole opinion, unsatisfactory, the Company may require payment of the Purchase Price in full prior to the Company delivering the relevant Goods or providing the Services.
5.7 If the Customer fails to make any payment by the Due Date, and the Customer has not remedied the failure to make payment within 7 days of receiving notice of the failure to make payment or the Customer is the subject of an Insolvency Event, then, without prejudice to any other right or remedy available to the Company (including any termination rights under clause 18.1) and to the extent permitted by law, the Company may, in its sole discretion, elect to do any one or more of the following:
(a) suspend any further deliveries to the Customer arising from any Agreement;
(b) enter the property of the Customer in order to repossess the Goods and the Customer grants the Company and its agents an irrevocable licence to do so;
(c) dismantle any other goods into which the Goods have been installed or incorporated and remove the Goods from such goods;
(d) charge the Customer interest (both before and after any judgement) on the unpaid amount at the Default Rate, which interest will accrue and be chargeable from the first day on which such amount becomes overdue until the Company receives payment of all such amounts (including all interest) by way of cleared funds;
(e) cancel any Trading Limit or account facilities previously granted to the Customer by the Company (including under the Account Application); and
(f) exercise any rights which the Company may have under law, including the Personal Property Securities Act 2009 (Cth).
5.8 If the Customer fails to make any payment by the Due Date the Customer must pay to the Company on demand all amounts reasonably incurred by the Company in recovering or seeking to recover the payment the Customer owes to the Company (including any fees or commission paid to a debt collector, mercantile agent or similar).
5.9 A party (First Party) may not set off or combine any amount owing by the other party (Second Party) to the First Party, whether or not due for payment, against any money due for payment by the First Party to the Second Party under an Agreement and the First Party must pay, and not withhold, any amount due to the Second Party under an Agreement notwithstanding that the First Party may be in dispute with the Second Party regarding the Goods or Services supplied under an Agreement.
6 Delivery of Goods and provision of Services
6.1 The Company will deliver the Goods to the Customer in the manner:
(a) reasonably determined by the Company; or
(b) as otherwise agreed between the Company and the Customer (including collection by the Customer from the address nominated by the Company).
6.2 The Company will use its best endeavours, to deliver Goods or make the Goods available for collection and provide the Services between the hours of 9.00am and 5.00pm Monday to Friday at the place of delivery or service provision (excluding on any public holiday at the place of delivery or service provision).
6.3 The Customer expressly authorises and grants the Company and its agents an express, irrevocable licence to enter the premises of the Customer or relevant third party in order for the Company to deliver the Goods or provide the Services.
6.4 If the Customer is required to collect the Goods or the parties have agreed that the Customer will collect the Goods, then the Customer must collect those Goods within 7 days of being notified by the Company that the Goods are ready to be collected.
6.5 If the Customer does not collect the Goods by the time specified in clause 6.4 or requests that delivery of the Goods be delayed, the Company may charge the Customer the costs incurred by the Company in storing the Goods until the Goods are collected by, or delivered to, the Customer.
6.6 The Customer will be responsible, at its own cost, for the unloading of any Goods at the delivery location and there must be a representative of the Customer present at the delivery location at the time delivery is made of the Goods and, if no such representative is present, a redelivery fee may be charged by the Company. Notwithstanding this clause 6.6, the Company may agree, for an additional fee, to assist in the unloading of the Goods at the delivery location.
6.7 Without limiting any rights which the Customer may have under the Australian Consumer Law, the Customer must, prior to taking possession of the Goods, inspect the Goods and immediately notify the Company in writing if the Goods are not fit for any purpose for which the Customer intends to use the Goods, are less than the number meant to be delivered under the
Agreement, have any defect or otherwise do not meet any Specifications.
6.8 Without limiting any other obligation of the Customer under an Agreement, the Customer must take all steps reasonably necessary to accept delivery of the Goods from the Company.
6.9 In the event the Company is unable to deliver the Goods to the Customer because of an act or omission of the Customer the Company shall be entitled to:
(a) recover on demand from the Customer any Loss reasonably incurred by the Company as a result of the inability to deliver the Goods (including payment for those Goods if those Goods cannot be resold or reused by the Company);
(b) treat the obligation to supply the remainder of the Goods (if any) as cancelled by the Customer; and
(c) without limiting any other rights the Company may have, store at the risk and cost of the Customer any Goods which the Customer refuses or fails to take delivery of or fails to collect.
6.10 The Company will use its reasonable endeavours to deliver the Goods and provide the Services on any date specified or estimated by the Company or set out in a Quote or Order however the Customer acknowledges that such dates are estimates only.
6.11 Without limiting clause 6.10, the Customer acknowledges that the Company may deliver or provide the Goods or Services in a number of deliveries or instalments and may invoice or otherwise charge the Customer for each portion that is delivered or otherwise provided.
6.12 If there are multiple Agreements in place at any one time then the Company may, in its absolute discretion, determine in which order it satisfies the delivery of the Goods and provision of Services under the Agreements.
6.13 The Customer acknowledges and agrees that the Company may, but will not be required to, provide proof of delivery or other similar documentation (whether at the time of delivery or after).
6.14 The Customer acknowledges and agrees that the Customer is responsible for the installation of the Goods and the Company will not be required to provide any installation or similar services to the Customer in respect of the Goods.
7 Return of Goods
7.1 The terms of this clause 7 are subject to clause 10 and, if a Good is not of acceptable quality, faulty, defective or damaged, the Customer may have rights under the Australian Consumer Law which are not affected by this clause 7.
7.2 Subject always to any applicable provisions of the Australian Consumer Law, the Customer may only return the Goods to the Company with the prior written consent of the Company and the Company will be under no obligation to accept Goods returned to it or provide any refund or other remedy in respect of such returned Goods. The Customer acknowledges and agrees that the Company may require that, as part of any consent under this clause, the Customer pay the Company a restocking fee.
7.3 Any claims in respect of the Goods made by the Customer to the Company must be made by written notice to the Company within 30 days of the date of delivery of the Goods by the Company to the Customer.
7.4 The Customer will be responsible for the cost of having the Goods returned to the Company.
7.5 The provision to the Customer of any refund or other remedy in respect of any Goods which are returned to the Company and determined by the Company to be damaged or not meet the Specifications will be at the Company’s sole discretion.
7.6 If any Goods which are returned to the Company are not damaged and meet the Specifications, then the Company may, at the Customer’s cost, return those Goods to the Customer.
8 Title and risk of Goods
8.1 Title to, and property in any Goods supplied under an Agreement remain with the Company and will only pass to the Customer once all moneys owing by the Customer to the Company in respect of the Agreement or any other agreement or arrangement between the Customer and the Company have been paid in full.
8.2 Risk in the Goods passes to the Customer upon the earlier of:
(a) the Goods being removed from the Company’s premises (or that of the Company’s supplier or agent) for delivery to the Customer or collection by the Customer from such premises; and
(b) if the Goods are to be collected by the Customer, on the date which is 7 days after the date on which the Company notified the Customer that the Goods are ready to be collected.
8.3 The Customer is responsible for all Loss and damage to the Goods after risk in the Goods passes to the Customer in accordance with clause 8.2.
8.4 The Customer is responsible for arranging, and taking out in its own name and its own cost, any insurance in respect of the Goods from the time risk passes to the Customer under this clause.
8.5 In the event that the Customer is required to return any Goods to the Company, risk in the Goods passes to the Company on confirmation of receipt of the Goods by the Company.
8.6 Until such time as full title, property and ownership of the Goods passes to the Customer in accordance with clause 8.1, and while the Goods remain in the Customer’s full control and possession:
(a) subject to clause 8.8, the Customer must hold the Goods as the Company’s fiduciary agent and bailee and must not sell, lease, dispose of or otherwise deal with the Goods in any way without the Company’s prior written consent;
(b) the Customer must keep and maintain the Goods in good and substantial repair;
(c) the Customer must insure the Goods for their full replacement value (which must not be less than the Purchase Price) and must store the relevant Goods separately from any other goods and in a way that enables the Goods to be clearly identified as the Company’s and referable to a particular Invoice;
(d) the Company may enter the premises of the Customer or any third party where the Goods are stored during the hours of 9.00am to 5.00pm to inspect the Goods;
(e) the Company may at any time after payment is overdue require the Customer to deliver up the Goods to the Company and, if the Customer fails to deliver up the Goods immediately, the Company may enter the premises of the Customer or any third party where the Goods are stored and repossess them;
(f) the Customer must not pledge or grant a security interest in or in any way charge by way of security for any indebtedness, any of the Goods which remain the property of the Company; and
(g) the Customer must not remove, deface, alter, obliterate or cover up any names, marks, designs, numbers, code or writing on the Goods.
8.7 For the purposes of the Company exercising its rights under clauses 8.6(d) and 8.6(e), the Customer expressly authorises and grants the Company and its agents an express, irrevocable licence to enter the premises of the Customer or relevant third party to inspect the Goods or to remove or arrange for the removal of the Goods.
8.8 Notwithstanding that title to the Goods has not passed to the Customer under clause 8.1, the Customer may, subject to obtaining the Company’s prior written approval, resell the Goods or any part thereof in the name of the Customer but only as agent for the Company and may deliver any such Goods to the buyer of those Goods but only in the ordinary course of its business and on terms which will not prejudice the Company’s ability to obtain the sale proceeds thereof and:
(a) any amount paid or due to be paid by the buyer of such Goods to the Customer (Sale Proceeds) must be held by the Customer on trust for the Company and any amounts paid must be banked in a separate bank account relating only to the sale proceeds of any Goods and shall be forwarded as soon as possible to the Company in satisfaction of any amount owed by the Customer in respect of the Goods;
(b) the Customer must keep and maintain separate records in relation to the Sale Proceeds received and held by the Customer and must provide such records to the Company immediately upon request by the Company; and
(c) if and when the full amount due to the Company in respect of the Goods has been received by the Company, any further Sale Proceeds may be retained by the Customer.
8.9 The Customer must immediately cease the resale of any Goods under clause 8.8 if:
(a) the Company reasonably believes that the Customer may not be able to make any payment under an Agreement by the relevant Due Date and the Company revokes any consent it has given to the Customer to resell the Goods under clause 8.8; or
(b) the Customer fails to make any payment under an Agreement by the relevant Due Date.
8.10 In the event that the Customer processes, incorporates, transforms or installs the Goods (or any portion of them) into any other goods, buildings or land, then the Customer must:
(a) keep and maintain records in relation to the Goods which have been processed, incorporated, transformed or installed and the goods, buildings or land in which the Goods have been processed, incorporated, transformed or installed; and
(b) hold a proportion of any payment (Relevant Proportion) received by the Customer for such goods, buildings or land on trust for the Company and the Customer acknowledges that the Relevant Proportion must be not less than the dollar value of the portion of the Goods processed, incorporated, transformed or installed.
8.11 If an Insolvency Event occurs in respect of the Customer then, without the need for notice or demand by the Company, the Customer acknowledges that any sale or purported sale of the Goods will not be in the ordinary course of the Customer’s business and the proceeds of any Goods sold in such circumstances will, to the extent of any money owing by the Customer to the Company, be held on trust for the Company by the administrator, controller or similar officer as the case may be, or if there is no such officer, by the Customer.
9 PPSA
9.1 Words and expressions used in this clause 9 which are not defined in these Terms but are defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the meaning given to them in the PPSA.
9.2 Unless a Customer has paid for Goods in respect of an Agreement before they are delivered to the Customer, each Customer acknowledges that:
(a) the Agreement for the supply of Goods created under these Terms is a security agreement for the purposes of the PPSA, under which the Customer grants the Company a security interest in the Goods and over any amount owed to the Customer in respect of the Goods (Account) to secure all monies owing by the Customer to the Company from time to time;
(b) where the Company has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply; and
(c) the Company is not obliged to act in any way to dispose of or to retain any Goods which have been seized by the Company or any person nominated by the Company under its rights under the PPSA.
9.3 Without limiting anything else in these Terms, the Customer consents to the Company effecting a registration on the register in relation to any security interest created by or arising in connection with, or contemplated by, these Terms, including in relation to the Goods and any Account. The Customer agrees to promptly do all things necessary to ensure that any security interest created under these Terms is perfected and remains continuously perfected, the Company’s priority position is preserved or secured and any defect in any security interest, including registration, is overcome.
9.4 The Customer must promptly take all reasonable steps which are prudent for its business under or in relation to the PPSA (including doing anything reasonably requested by the Company for that purpose in relation to the Goods or the Account). Without limiting the foregoing, the Customer must:
(a) register a security interest in relation to the Goods where the Customer on sells the Goods to a third party or incorporates the Goods into another good or product;
(b) where appropriate, take reasonable steps to identify security interests in relation to the Goods in the Customer’s favour and to perfect and protect them, with the highest priority reasonably available; and
(c) not register a financing change statement in relation to any registration made under paragraphs (a) or (b) without the Company’s prior written consent.
9.5 The Customer must indemnify, and on demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the register, and for the enforcement of any rights arising out of any of the Company’s security interests.
9.6 The Customer must not change its name, address or contact details without providing prior written notice to the Company and must not register a financing change statement or a change demand without the Company’s prior written consent.
9.7 To the extent that the PPSA permits, the Customer waives its rights to receive a copy of any verification statement or financing change statement; to receive any notice required under the PPSA, including notice of a verification statement; to reinstate the security agreement by payment of any amounts owing or by remedy of any default; and under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 127, 128, 129, 130, 132, 134(2), 135, 136(3), (4) and (5), 137, 142 and 143 of the PPSA.
9.8 The Customer may only disclose information or documents, including information of a kind referred to in section 275(1) of the PPSA, if the Company has given prior written consent.
10 Liability
10.1 If the Customer is a Consumer and the Company supplies PDH Goods or Services to the Customer, the Company acknowledges that the Customer may have certain rights under the Australian Consumer Law in respect of the Consumer Guarantees as they apply to the PDH Goods or Services supplied by the Company and nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the application of any such rights.
10.2 If the Customer is a Consumer and any goods or services supplied by the Company to the Customer are non PDH Goods or Services, the Company’s liability to the Customer in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at the Company’s discretion) to:
(a) in the case of Goods:
(i) the replacement of the Goods or the supply of equivalent goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the Goods repaired; and
(b) in the case of Services:
(i) the supplying the Services again; or
(ii) the payment of the cost of having the Services supplied again.
10.3 Subject to clause 10.5, 10.6 and 10.9, if the Customer makes a claim against the Company in connection with or arising out of an Agreement which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, the Company’s total aggregate liability arising in connection with all such claims shall be limited to the amount equal to 100% of the amounts actually received by the Company from the Customer under that Agreement.
10.4 In relation to the supply of Goods which are non PDH Goods or Services, if the Company is liable to indemnify the Customer under section 274 of the Australian Consumer Law, the Company’s liability to the Customer is limited to an amount equal to the lower of:
(a) the cost of replacing the Goods;
(b) the cost of obtaining equivalent Goods; or
(c) the cost of having the Goods repaired.
10.5 Subject always to the other terms of this clause 10 and the provisions of the Australian Consumer Law, the Company is not liable to the Customer for any damage to the Goods which is caused as a result of:
(a) accident, misuse (including use for incorrect applications), incorrect installation, cleaning or maintenance, unauthorised modification, tampering or unauthorised repairs by any persons, exposure to corrosive conditions, adhesives or sealants;
(b) damage which arises from installation;
(c) use in a manner for which the Goods are not specifically designed;
(d) the Goods being mixed with, combined with or incorporated in any other materials or goods;
(e) exposure to weather conditions, temperatures and other natural elements for which the Goods are not specifically designed; or
(f) failure to observe any instructions or manuals provided to the Customer by the Company in relation to the care, cleaning or maintenance of the Goods.
10.6 Subject always to the other terms of this clause 10 and the provisions of the Australian Consumer Law, the Customer acknowledges that some of the Goods are manufactured using naturally occurring materials (such as bluestone and basalt) which may mean that the specifications of the Goods may vary, particularly as to colour, texture and appearance, and the Customer will not make any claim against the Company for any variation between Goods which is due to variations in the naturally occurring materials with which those Goods are manufactured.
10.7 Subject to clauses 10.8 and 10.9, the Customer’s total aggregate liability arising in connection with all claims the Company makes against the Customer in connection with or arising out of an Agreement Terms shall be limited to 100% of the amounts actually paid by the Customer to the Company under that Agreement.
10.8 Clause 10.7 does not apply in relation to any claim which the Company may make against the Customer in respect of the Customer’s obligation to pay the Purchase Price (including any amount under clause 5.7(d) or 5.8)).
10.9 Without limiting and subject to clauses 10.1 and 10.2 neither party shall be liable to the other party for any Consequential Loss.
11 Intellectual Property
11.1 The parties acknowledge and agree that as between the Company and the Customer all Intellectual Property Rights in the Goods and any material created as part of the Services vests in and exclusively belongs to and are irrevocably assigned to the Company and the Customer agrees that it must not infringe or use the Intellectual Property Rights of the Company which exist in the Goods or materials created as part of the Services without the prior consent of the Company.
11.2 The Customer must only sell or promote the Goods using any trade mark, name or brand which is approved in writing by the Company.
11.3 The Customer must not make available for purchase, sell or promote any:
(a) good which is a copy or imitation, in whole or in part, of any Good; or
(b) Good which has been modified or varied.
12 Notification of claims
12.1 The Customer shall notify the Company immediately if it becomes aware of:
(a) any claim; or
(b) any death, serious injury or serious illness, in respect of, or caused by, the Goods or other goods of which the Goods are a component or mixed with and the Customer will take all reasonable steps to mitigate any Loss arising as a consequence of the claim, death, serious injury or serious illness.
12.2 If Goods are sold by the Customer to a third party for commercial use by that third party, the Customer must impose on the third party an obligation to notify the Customer immediately if the third party becomes aware of:
(a) any claim; or
(b) any death, serious injury or serious illness, in respect of the Goods or other goods of which the Goods are a component or mixed with and to take all reasonable steps to mitigate Loss arising as a consequence of the claim, death, serious injury or serious illness.
12.3 The Customer must, and must impose on any third party to whom it sells the Goods an obligation to:
(a) not, without the Company’s express written consent, make any representation to any Consumer regarding the purpose, performance or durability of the Goods, which is in breach of the Australian Consumer Law;
(b) take all steps and do all things necessary to promptly pass on to the Company any claim made by a Consumer arising out of or in connection with the Australian Consumer Law and must, at the Customer’s expense, assist the Company to comply with its obligations under the Australian Consumer Law;
(c) not, other than in respect of any warranties or guarantees which cannot be excluded by law, make on behalf of the Company any undertaking, assertion, statement, warranty, admission or other representation in respect of the Goods which is inconsistent with the Agreement under which the Goods are supplied; and
(d) not agree to settle any claim made by a Consumer without the prior written consent of the Company.
13 Specifications
13.1 If an Offer has been accepted by the Company, the Customer acknowledges that the Offer was accepted by the Company on the basis of, and in reliance upon, any information, drawings, specifications, data, representations, statements and documents provided by the Customer, set out in an Order or otherwise approved by the Customer.
13.2 The Specifications are approximate only and there may be minor variations or differences between the Specifications and the Goods and Services delivered to the Customer.
13.3 Where any instructions, materials or information in whatever form (including documents, specifications, designs, plans, processes, and data) are required to be provided by the Customer to the Company before the Company can proceed with or complete the provision of the Goods or Services such instructions, materials or information must be supplied by the Customer to the Company within a reasonable time (as determined by the Company) so as to enable the Company to deliver the Goods or Services within any agreed time frame.
13.4 The Company may make changes to the specifications, dimensions, weights or other particulars of the Goods as may be required from time to time by:
(a) law; or
(b) any safety or manufacturing requirements, provided any such change does not have any material impact on the ability of the Customer to use the Goods for their intended purpose.
14 Confidentiality
14.1 The Receiving Party:
(a) may use Confidential Information solely for the purposes of the relevant Agreement;
(b) must keep confidential all Confidential Information; and
(c) may disclose Confidential Information only to (i) employees and contractors who (A) are aware and agree that the Confidential Information must be kept confidential and (B) either have a need to know the Confidential Information (and only to the extent that each has a need to know), or have been specifically approved by the Disclosing Party; (ii) as required by law or securities exchange regulation; or (iii) with the prior written consent of the Disclosing Party.
14.2 The Receiving Party must notify the Disclosing Party immediately once it becomes aware of any breach of confidentiality in respect of the Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.
15 Privacy
The Customer acknowledges and agrees that personal information (as that term is defined in the Privacy Act 1988 (Cth)) regarding the Customer if the Customer is an individual, or the employees, contractors, officers and agents of the Customer if the Customer is an organisation, may be collected, held, used and disclosed by the Company for the purposes set out in the Company’s privacy policy (which privacy policy is available on the Company’s website or on request from the Company). The Customer consents, and where applicable will make all reasonable endeavours to have its employees, contractors, officers and agents consent, to the Company collecting, holding, using and disclosing any such personal information for all purposes specified in the Company’s privacy policy.
16 GST
In this clause, words and expressions which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended, varied or replaced from time to time) have the same meaning given to them by that Act. Unless otherwise expressly stated in writing in an Agreement, all amounts payable by the Customer in connection with an Agreement do not include an amount for GST. If GST is payable on any supply made by the Company under these Terms, the Customer must pay to the Company, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the Customer is required by these Terms to reimburse or indemnify the Company for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that the Company will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by the Company in respect of the reimbursement or payment.
17 Force Majeure
17.1 Neither party will be liable for any failure to perform or delay in performing its obligations under an Agreement (other than in respect of the Customer’s obligation to pay the Purchase Price and any amount under clause 5.7(d) or 5.8) if that failure or delay is due to a Force Majeure Event.
17.2 If a Force Majeure Event under clause 17.1 exceeds 20 Business Days, either party may immediately terminate the Agreement by written notice to the other party.
18 Termination
18.1 Without limiting the Company’s other rights under these Terms, and to the extent permitted by law, the Company may terminate any and all Agreements and any account facility under an Account Application with immediate effect by written notice to the Customer if:
(a) the Customer fails to make any payment under the Agreement to the Company by the due date for that payment and the Customer has not remedied the failure to make payment within 7 days of receiving notice of the failure to make payment;
(b) the Customer is the subject of an Insolvency Event;
(c) the Customer has materially breached the relevant Agreement (including these Terms) and the breach is not capable of remedy; or
(d) the Customer has breached any term of the relevant Agreement (including these Terms) which is capable of remedy and has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied; or
(e) in accordance with clause 17.2.
18.2 Without limiting the Customer’s other rights under these Terms, and to the extent permitted by law, the Customer may terminate any and all Agreements and any account facility under an Account Application with immediate effect by written notice to the Company if:
(a) the Company is the subject of an Insolvency Event;
(b) the Company has materially breached the relevant Agreement (including these Terms) and the breach is not capable of remedy; or
(c) the Company has breached a term of the relevant Agreement (including these Terms) which is capable of remedy and has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied.
18.3 On termination of an Agreement:
(a) the Customer must not sell or part with possession (other than as required under clause 18.3(b)) any Goods the subject of the Agreement (other than any Goods which have been paid for);
(b) the Customer must, at its cost immediately return to the Company all Goods the subject of the Agreement (other than any Goods which have been paid for) and any displays and other promotional and advertising materials in relation to the Goods;
(c) the Company may enter the premises of the Customer or any third party to repossess any Goods not returned under clause 18.3(b) and the Customer expressly authorises and grants the Company and its agents an express, irrevocable licence to enter the premises of the Customer or relevant third party to remove or arrange for the removal of such Goods; and
(d) all monies owed by the Customer to the Company shall become immediately due and payable.
18.4 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
19 Cancellation
The Company may cancel or suspend any Agreement effective immediately upon providing the Customer with written notice of cancellation or suspension where the Company is unable to supply the relevant Goods or provide the Services to the Customer because of reasons beyond the reasonable control of the Company, provided that if the Company cancels an Agreement under this clause 19 it will refund to the Customer any amounts already paid by the Customer for the Goods or Services subject to the cancellation and which are not provided to the Customer (including the amount of any Deposit).
20 Acknowledgements and representations
20.1 By making an Offer, the Customer warrants and represents to the Company that it has read and understood these Terms prior to making the Offer, and agrees to be bound by them in full.
20.2 Any price list, goods lists or other similar documents or catalogues (Documents) issued by or on behalf of the Company do not constitute an offer by the Company to supply Goods appearing in those Documents or an offer by the Company to supply Goods at the prices set out in those Documents and for the avoidance of doubt those Documents do not form part of an Agreement except to the extent that they are expressly referred to in any Offer. The Company’s Documents may be changed by the Company at any time without notice.
21 Inconsistency
21.1 Unless otherwise specified in these Terms, in the event of an inconsistency between any of the documents listed in clause 3.3, the following order of precedence shall apply to the extent of the inconsistency:
(a) the prices and quantity of Goods and/or Services set out in a Quote (if any);
(b) these Terms;
(c) the Account Application;
(d) any other terms of the Quote (if applicable); and
(e) without limiting clause 21.2, any terms in the Order which are accepted by the Company in writing.
21.2 These Terms shall prevail over any Customer terms and conditions, except to the extent specifically agreed by the Company in writing and any terms or conditions included in an Order or other document provided or issued by the Customer will only be binding on the Company if expressly agreed by the Company in writing.
22 Miscellaneous
22.1 In these Terms:
(a) the singular includes the plural and vice versa;
(b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;
(c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;
(d) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;
(e) headings are inserted for convenience and do not affect the interpretation of these Terms;
(f) no provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Terms or the inclusion of the provision in the Terms; and
(g) unless otherwise provided, all monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.
22.2 The Customer must maintain and keep current and complete records of the Goods which the Company has supplied to the Customer (in sufficient detail so as to be readily identified as goods supplied by the Company), including any Goods which are sold by the Customer to a third party and must, immediately upon written request from the Company, provide the Company with access to, or copies of, those records.
22.3 Neither party may assign or novate any of its rights or obligations under these Terms without the other party’s prior written consent (which will not be unreasonably withheld or delayed).
22.4 The Company may, to the extent permitted by law, vary these Terms from time to time with the variation becoming effective as soon as the Company provides the Customer notice of the variation(Variation Date). Any variation to these Terms will only apply to, and in respect of, any Offer made after the Variation Date and the parties acknowledge that nothing in these Terms requires the Customer to make any further Offers after the Variation Date. The Customer may, by written notice to the Company, terminate these Terms at any time within 30 days of receiving notice of a variation of the Terms but any such termination by the Customer will not have the effect of terminating any Agreement existing prior to the notice of termination.
22.5 A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any rights under these Terms must be in writing and is only effective to the extent set out in that written waiver.
22.6 If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.
22.7 These Terms are governed by the laws in force in Victoria, and the Customer and the Company submit to the non-exclusive jurisdiction of the courts of Victoria.
22.8 The termination or expiry of these Terms or any Agreement does not operate to terminate any rights or obligations under an Agreement that by their nature are intended to survive termination or expiration, and those rights or obligations remain in full force and binding on the party concerned including without limitation the rights and obligations under clauses 1, 7, 8, 9, 10, 11, 12, 14, 15, 18, 21 and 22.
22.9 Each party must:
(a) do all acts necessary or desirable to give full effect to an Agreement; and
(b) refrain from doing anything which might prevent full effect being given to an Agreement.
22.10 The relationship between the parties is and will remain that of independent contractors, and nothing in these Terms or an Agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.
22.11 Notices by a party must be delivered by hand, prepaid post or email and sent to the address of the receiving party specified in the Account Application or, if none are specified, in any other part of the Agreement. Notices shall be deemed to have been received by hand upon delivery, by post within two (2) Business Days of sending and by email one hour after the email (unless the sender knows that email has failed to send).