1.1 “ A “ shall mean Armstone Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Armstone Pty Ltd.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by A to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by A to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by A to the Client.
1.5 “Services” shall mean all Services supplied by A to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between A and the Client in accordance with clause 4 of this contract.
The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair TradingActs (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by A from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by A shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of A.
3.4 The Client shall give A not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by A as a result of the Client’s failure to comply with this clause.
3.5 Goods are supplied by A only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
Price and Payment
4.1 At A sole discretion the Price shall be either:(a) as indicated on invoices provided by A to the Client in respect of Goods supplied; or(b) A current price at the date of delivery of the Goods according to A current wholesale Price list; or(c) A quoted Price (subject to clause 4.2) which shall be binding upon Aprovided that the Client shall accept A’ quotation in writing within fourteen (14) days.
4.2 A reserves the right to change the Price in the event of a variation to A quotation. Any variation from the plan of scheduled works or specifications(including, but not limited to, any variation as a result of fluctuation in currency exchange rates) will be charged for on the basis of A’ quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at the time of completion.
4.3 At A sole discretion a non-refundable deposit may be required.
4.4 At A sole discretion:(a) payment shall be due before delivery of the Goods; or(b) payment for approved Clients shall be due thirty (30) days following the end of the month in which Statement is posted to the Client’s address or address for notices.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus Aurcharge of up to two percent (2%) of the Price), or by direct credit, or by any other method as agreed to between the Client and A.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Delivery Of Goods
5.1 At A sole discretion delivery of the Goods shall take place when:(a) the Client takes possession of the Goods at A address; or(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by A or A’ nominated carrier).
5.2 At A sole discretion the costs of delivery are:(a) included in the Price, or(b) in addition to the Price; or(c) for the Client’s account.
5.3 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.4 A may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 The failure of A to deliver shall not entitle either party to treat this contract as repudiated.5.6 A shall not be liable for any loss or damage whatsoever due to failure by A to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of A.
6.1 If A retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, A is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by A is sufficient evidence of A rights to receive the insurance proceeds without the need for any person dealing with A to make further enquiries.
6.3 Where the Client expressly requests A to leave Goods outside A’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
6.4 The Client acknowledges that it is the Client’s responsibility to check quantities, with an on-site measurement before commencing fixing. Measurements taken off plans or the Client’s figures by A are approximate only and no responsibility is taken for their accuracy.
6.5 If the Client orders an insufficient number of tiles, then A will take no responsibility for any variation of colour in further batches supplied to the Client or the inability to supply Goods at all.
6.6 A will accept no responsibility for tiles that have already been affixed.
6.7 The Client acknowledges that variations of colour, shade and grain are inherent in all kiln-fired products and natural stone. While every effort will be taken by A to match the colour, shade or grain of the product, A shall not be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading or grain between batches of product or sale samples and the final product supplied.
6.8 The Client acknowledges that it is the Client’s responsibility to seek independent professional advice for cleaning, sealing
and protecting all-natural stone Goods. A shall not be liable for any loss, damages, or costs however arising resulting from stone deterioration or discolour, due to cleaning and sealing
by the Client or others.
6.9 The Client acknowledges that up to ten per cent (10%) of the PSL Tile range(Porcelain Stone Laminate range) may have any, holes, cracks and/or corners repaired or filled with epoxy grout
and/or a cement-based grout. The Client accepts that this shall not be considered to be a defect. If the Client requests the replacement of such tiles that have slight imperfections, but A does not deem the tiles to be defective then the Client accepts that this shall be a variation to the original quotation and clause 4.2 will apply.
6.10 Goods will be delivered to the kerbside of the delivery site, unless by prior arrangement with A. It is the Client’s responsibility to relocate the Goods from the kerbside to a suitable location on the property. If at the Client’s request, the delivery vehicle leaves the road and enters the delivery site to unload the Client is responsible for providing suitable and safe access for A’ delivery vehicle and agrees to indemnify A and its agents for all damage and injury to any person and to any public or private property which may result, including any costs associated with enabling the delivery vehicle to leave the site.
7.1 A and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid A all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to A in respect of all contracts between A and the Client.
7.2 Receipt by A of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then A’ ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:(a) where practicable the Goods shall be kept separate and identifiable until A shall have received payment and all other obligations of the Client are met; and(b) until such time as ownership of the Goods shall pass from A to the Client AS may give notice in writing to the Client to return the Goods or any of them toA. Upon such notice the rights of the Client to obtain ownership or anyother interest in the Goods shall cease; and(c) A shall have the right of stopping the Goods in transit whether or notdelivery has been made; and(d) if the Client fails to return the Goods to A then A or A’ agent may enterupon and into land and premises owned, occupied or used by the Client, or anypremises as the invitee of the Client, where the Goods are situated and takepossession of the Goods; and(e) the Client is only a bailee of the Goods and until such time as A has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to A for the Goods, on trust for A; and(f) the Client shall not deal with the money of A in any way which may beadverse to A; and(g) the Client shall not charge the Goods in any way nor grant nor otherwise giveany interest in the Goods while they remain the property of A; and(h) A can issue proceedings to recover the Price of the Goods soldnotwithstanding that ownership of the Goods may not have passed to theClient; and(i) until such time that ownership in the Goods passes to the Client, if the Goodsare converted into other products, the parties agree that A will be the ownerof the end products.
Personal Property Securities Act 2009 (“PPSA”)
8.1 In this clause:(a) financing statement has the meaning given to it by the PPSA;(b) financing change statement has the meaning given to it by the PPSA;(c) security agreement means the security agreement under the PPSA created between the Client and A by these terms and conditions, and (d) security interest has the meaning given to it by the PPSA.
8.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions:(a) constitute an Aecurity agreement for the purposes of the PPSA; and(b) create Aecurity interest in:(i) all Goods previously supplied by A to the Client (if any);(ii) all Goods that will be supplied in the future by A to the Client.
8.3 The Client undertakes to:(a) promptly sign any further documents and/or provide any further information(such information to be complete, accurate and up-to-date in all respects)which A may reasonably require to:(i) register a financing statement or financing change statement in relation toAecurity interest on the Personal Property Securities Register;(ii) register any other document required to be registered by the PPSA; or(iii) correct a defect in Atatement referred to in clause 8.3(a)(i) or 8.3(a)(ii);(b) indemnify, and upon demand reimburse, A for all expenses incurred inregistering a financing statement or financing change statement on thePersonal Property Securities Register established by the PPSA or releasing anyGoods charged thereby;(c) not register a financing change statement in respect of Aecurity interestwithout the prior written consent of A;(d) not register, or permit to be registered, a financing statement or a financingchange statement in relation to the Goods in favour of a third party without theprior written consent of A; and(e) immediately advise A of any material change in its business practices ofselling the Goods which would result in a change in the nature of proceedsderived from such sales.
8.4 A and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.5 The Client hereby waives its rights to receive notices under sections 95, 118,121(4), 130, 132(3)(d) and 132(4) of the PPSA.
8.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by A, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Client shall unconditionally ratify any actions taken by A under clauses 8.3 to 8.5.
9.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify A of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford A an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which A has agreed in writing that the Client is entitled to reject, A liability is limited to either (at A’discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
10.1 Returns will only be accepted provided that:(a) the Client has complied with the provisions of clause 9.1; and(b) A has agreed in writing to accept the return of the Goods; and(c) the Goods are returned at the Client’s cost within fourteen (14) days of the delivery date; and(d) A will not be liable for Goods which have not been stored or used in a proper manner; and(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition is reasonably possible in the circumstances.
10.2 A may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to thirty per cent (30%) of the value of the returned Goods plus any freight costs.
11.1 To the extent permitted by statute, no warranty is given by A as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. A shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
12.1 Where A has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in A, and shall only be used by the Client at A discretion.
12.2 The Client warrants that all designs or instructions to A will not cause A to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify A against any action taken by a third party against A in respect of any such infringement.
12.3 The Client hereby authorises A to utilise images of the Goods designed or drawn by A in advertising, marketing, or competition material by A.
Default & Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one-half per cent (2.5%) per calendar month (and at A’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by A.
13.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify A from and against all costs and disbursements incurred by A in pursuing the debt including legal costs on Solicitor and own client basis and A collection agency costs.
13.4 Without prejudice to any other remedies A may have, if at any time the Client is in breach of any obligation (including those relating to payment) A may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. A will not be liable to the Client for any loss or damage the Client suffers because A has exercised its rights under this clause.
13.5 If any account remains overdue after forty-five (45) days then an amount of the greater of twenty dollars ($20.00) or ten per cent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
13.6 Without prejudice to A other remedies at law A shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to A shall, whether or not due for payment, become immediately payable in the event that:(a) any money payable to A becomes overdue, or in A’ opinion the Client will be unable to meet its payments as they fall due; or(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which A may have howsoever:(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to A or A nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that A(or A nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. (b) should A elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify A from and against all A costs and disbursements including legal costs on a solicitor and own client basis.(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint A or A nominee as the Client’s and/or Guarantor’strue and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15.1 A may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice A shall repay to the Client any sums paid in respect of the Price. A shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by A (including, but not limited to, any loss of profits) up to the time of cancellation.
15.3 Cancellation of orders for Goods made to the Client’s specifications or nonstocklist items will definitely not be accepted once production has commenced.
Privacy Act 1988
16.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for A to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by A.
16.2 The Client agrees that A may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:(a) to assess an application by the Client; and/or(b) to notify other credit providers of a default by the Client; and/or(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or(d) to assess the creditworthiness of the Client. The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
16.3 The Client consents to A being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Client agrees that personal credit information provided may be used and retained by A for the following purposes (and for other purposes as shall be agreed between the Client and A or required by law from time to time):(a) the provision of Goods; and/or(b) the marketing of Goods by A, its agents or distributors; and/or(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
16.5 A may give information about the Client to a credit reporting agency for the following purposes:(a) to obtain a consumer credit report about the Client;(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16.6 The information given to the credit reporting agency may include:(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;(b) details concerning the Client’s application for credit or commercial credit andthe amount requested;(c) advice that A is a current credit provider to the Client;(d) advice of any overdue accounts, loan repayments, and/or any outstandingmonies owing which are overdue by more than sixty (60) days, and for whichdebt collection action has been started;(e) that the Client’s overdue accounts, loan repayments and/or any outstandingmonies are no longer overdue in respect of any default that has been listed;(f) information that, in the opinion of A, the Client has committed Aeriouscredit infringement (that is, fraudulently or shown an intention not to complywith the Clients credit obligations);(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;(h) that credit provided to the Client by A has been paid or otherwisedischarged.
Building and Construction Industry Security of Payments Act 1999
17.1 At A’ sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
17.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
18.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSAhall prevail to the extent of that inconsistency.
18.3 These terms and conditions and any contract to which they apply shall be governed by the laws of the State in which the sale is made and are subject to the jurisdiction of the courts of that State.
18.4 A shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by A of these terms and conditions.
18.5 In the event of any breach of this contract by A the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
18.6 The Client shall not be entitled to set off against or deduct from the Price, any sums owed or claimed to be owed to the Client by A nor to withhold payment of any invoice because part of that invoice is in dispute.
18.7 A may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.8 The Client agrees that A may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which A notifies the Client of such change.
18.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.10 The failure by A to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect A right to subsequently enforce that provision.