account terms and conditions.
1. DEFINITIONS
In these Terms:
“ACL” means the Australian Consumer Law Schedule of the Competition and
Consumer Act 2010 (Cth) and its associated Regulations as amended; “Agreement”
means any agreement for the provision of goods or services by the Supplier to
the Customer; “consumer” is as defined in the ACL and in determining if the
Customer is a consumer, the determination is made if Customer is a consumer
under the Agreement; “Customer” means the person, jointly and severally if more
than one, acquiring goods or services from the Supplier; “goods” means goods
supplied by the Supplier to the Customer; “GST” means the Goods and Services tax
as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its
associated Regulations as amended; “PPSA” means the Personal Property
Securities Act 2009 (Cth) and its associated Regulations as amended; “services”
means services supplied by the Supplier to the Customer; “Supplier” means Master
Floor Carpenters PTY LTD; and “Terms” means these Terms and Conditions of
Trade.
2. BASIS OF AGREEMENT
2.1 Unless otherwise agreed by the Supplier in writing, the Terms apply exclusively to
every Agreement and cannot be varied or replaced by any other terms, including the
Customer’s terms and conditions of purchase (if any).
2.2 Any quotation provided by the Supplier to the Customer for the proposed supply
of goods or services is:
(a) valid for 30 days;
(b) an invitation to treat only; and
(c) only valid if in writing.
2.3 The Terms may include additional terms in the Supplier’s quotation, which are
not inconsistent with the Terms.
2.4 An Agreement is accepted by the Supplier when the Supplier accepts, in writing
or electronic means, an o er from the Customer or provides the Customer with the
goods or services.
2.5 The Supplier has absolute discretion to refuse to accept any o er.
2.6 The Customer must provide the Supplier with its specific requirements, if any, in
relation to the goods and services.
2.7 The Supplier may vary or amend these Terms by written notice to the Customer
at any time. Any variations will apply to orders placed after the notice date.
3. PRICING
3.1 Unless stated prices quoted for the supply of goods and services do not include
GST and any other taxes or duties imposed on or in relation to the goods and
services.
3.2 If the Customer requests any variation to the Agreement, the Supplier may
increase the price to account for the variation.
3.3 Where there is any change in the costs incurred by the Supplier in relation to
goods or services, the Supplier may vary its price to take account of any such
change, by notifying the Customer.
4. PAYMENT
4.1 Unless otherwise agreed in writing:
(a) subject to 4.1(b), full payment for the goods or services must be made within the
agreed time in this application following delivery; and
(b) the Supplier reserves the right to require payment in full on delivery of the goods
or completion of the services.
4.2 Payment by cheque is not deemed made until the proceeds of the cheque have
cleared.
4.3 Payment terms may be revoked or amended at the Supplier’s sole discretion
immediately upon giving the Customer written notice.
4.4 The time for payment is of the essence.
5. PAYMENT DEFAULT
5.1 If the Customer defaults in payment by the due date of any amount payable to
the Supplier, then all money which would become payable by the Customer to the
Supplier at a later date on any account, becomes immediately due and payable
without the requirement of any notice to the Customer, and the Supplier may,
without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest on any sum due at the rate of 10% per annum until
the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify the Supplier from,
all costs and expenses (including without limitation all legal costs and expenses on
an indemnity basis) incurred by it resulting from the default or in taking action to
enforce compliance with the Agreement or to recover any goods;
(c) cease or suspend supply of any further goods or services to the Customer;
and/or
(d) by written notice to the Customer, terminate any uncompleted contract with the
Customer.
5.2 Clauses 5.1(c) and 5.1(d) may also be relied upon, at the Supplier’s option:
(a) where the Customer is a natural person and becomes bankrupt or enters into any
scheme of arrangement or any assignment or composition with or for the benefit of
his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation and, it enters into any scheme of
arrangement or any assignment or composition with or for the benefit of its creditors
or any class of its creditors generally, or has a liquidator, administrator, receiver or
manager or similar functionary appointed in respect of its assets, or any action is
taken for, or with the view to, the liquidation (including provisional liquidation),
winding up or dissolution without winding up of the Customer.
6. PASSING OF PROPERTY
6.1 Until the Supplier receives full payment in cleared funds for all goods and services
supplied by it to the Customer, as well as all other amounts owing to the Supplier by
the Customer:
(a) title and property in all goods remain vested in the Supplier and do not pass to
the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for the Supplier;
(c) the Customer must keep the goods separate from its goods and maintain the
Supplier’s labelling and packaging;
(d) the Customer must hold the proceeds of sale of the goods on trust for the
Supplier in a separate account with a bank to whom the Customer has not given
security, however failure to do so will not a ect the Customer’s obligation as trustee;
and
(e) in addition to its rights under the PPSA, the Supplier may without notice, enter
any premises where it suspects the goods are and remove them, notwithstanding that
they may have been attached to other goods not the property of the Supplier, and
for this purpose the Customer irrevocably licenses the Supplier to enter such
premises and indemnifies the Supplier from and against all costs, claims, demands or
actions by any party arising from such action.
7. PERSONAL PROPERTY SECURITIES ACT
7.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA
applies to these Terms.
7.2 For the purposes of the PPSA:
(a) terms used in clause 7 that are defined in the PPSA have the same meaning as in
the PPSA;
(b) these Terms are a security agreement and the Supplier has a PMSI in all present
and future goods supplied by the Supplier to the Customer and the proceeds of the
goods;
(c) the security interest is a continuing interest irrespective of whether there are
tmimone;ie asn odr obligations owing by the Customer at any particular
(d) the Customer must do whatever is necessary in order to give a valid security
interest over the goods which is able to be registered by the Supplier on the Personal
Property Securities Register.
7.3 The security interest arising under this clause 7 attaches to the goods when the
goods are collected or dispatched from the Supplier’s premises and not at any later
time.
7.4 Where permitted by the PPSA, the Customer waives any rights to receive the
notifications, verifications, disclosures or other documentation specified under
sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
7.5 The Supplier and the Customer agree to contract out of and nothing in the
provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these
Terms.
7.6 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the
Customer or which place obligations on the Supplier will apply only to the extent that
they are mandatory or the Supplier agrees to their application in writing; and
(b) where the Supplier has rights in addition to those in Chapter 4 of the PPSA,
those rights will continue to apply.
7.7 The Customer must immediately upon the Supplier’s request:
(a) do all things and execute all document necessary to give e ect to the security
interest created under this Agreement; and
(b) procure from any person considered by the Supplier to be relevant to its security
position such agreements and waivers (including as equivalent to those above) as the
Supplier may at any time require.
7.8 The Supplier may allocate amounts received from the Customer in any manner
the Supplier determines including in any manner required to preserve any PMSI it has
in goods supplied by the Supplier.
7.9 For the purposes of section 275(6) of the PPSA, the parties agree and undertake
that these Terms and any information pertaining to the sale of goods and details of
the goods shall be kept confidential at all times. Neither party may disclose any
information pertaining to these Terms or the sale of the goods, except as otherwise
required by law or that is already in the public domain.
8. RISK AND INSURANCE
8.1 The risk in the goods and all insurance responsibility for theft, damage or
otherwise will pass to the Customer immediately on the goods being delivered to the
Customer or taken from the Supplier’s premises.
8.2 The goods are sold to the Customer on the basis that the Customer has
obtained all necessary licences or permits under all relevant laws and regulations in
relation to the goods.
8.3 The Customer assumes all risk and liability for loss, damage or injury to persons
or to property of the Customer, or third parties arising out of the use installation or
possession of any of the goods sold by the Supplier, unless recoverable from the
Supplier on the failure of any statutory guarantee under the ACL.
9. PERFORMANCE OF AGREEMENT
9.1 Any period or date for delivery of goods or provision of services stated by the
Supplier is an estimate only and not a contractual commitment.
9.2 The Supplier will use its reasonable endeavours to meet any estimated dates for
delivery of the goods but will not be liable for any loss or damage su ered by the
Customer or any third party for failure to meet any estimated date.
9.3 If the Supplier cannot complete the services by any estimated date, it will
complete the services within a reasonable time.
10. DELIVERY
10.1 Subject to clause 10.4, the Supplier will arrange for the delivery of the goods to
the Customer.
10.2 The Supplier may make part delivery of goods or provision of services and the
Supplier may invoice the Customer for the goods or services provided.
10.3 The Customer indemnifies the Supplier against any loss or damage su ered by
the Supplier, its sub-contractors or employees as a result of delivery, except where
the Customer is a consumer and the Supplier has not used due care and skill.
10.4 If agreed that the Customer will collect the goods:
(a) the Customer must collect the goods with 7 days of being advised they are
ready; and
(b) if the Customer does not collect the goods within this time, the Customer is
deemed to have taken delivery of the goods and is liable for storage charges payable
monthly on demand.
11. LIABILITY
11.1 Except as the Terms specifically state, or as contained in any express warranty
provided in relation to the goods or services, the Agreement does not include by
implication any other term, condition or warranty in respect of the quality,
merchantability, acceptability, fitness for purpose, condition, description, assembly,
manufacture, design or performance of the goods or services or any contractual
remedy for their failure.
11.2 If the Customer is a consumer nothing in these Terms restricts, limits or
modifies the Customer’s rights or remedies against the Supplier for failure of a
statutory guarantee under the ACL.
11.3 If the Customer on-supplies the goods to a consumer and:
(a) the goods or services are not of a kind ordinarily acquired for personal, domestic
or household use or consumption, then the amount specified in section 276A(1) of
the ACL is the absolute limit of the Supplier’s liability to the Customer; or
(b) the goods or services are of a kind ordinarily acquired for personal, domestic or
household use or consumption, payment of any amount required under section 274
of the ACL is the absolute limit of the Supplier’s liability to the Customer; howsoever
arising under or in connection with the sale, installation, use of, storage or any other
dealings with the goods or services by the Customer or any third party.
11.4 If clause 11.2 or 11.3 do not apply, then other than as stated in the Terms or any
written warranty statement, the Supplier is not liable to the Customer in any way
arising under or in connection with the sale, installation, use of, storage or any other
dealings with the goods or services by the Customer or any third party.
11.5 The Supplier is not liable for any indirect or consequential losses or expenses
su ered by the Customer or any third party, howsoever caused, including but not
limited to loss of turnover, profits, business or goodwill or any liability to any other
party, except to the extent of any liability imposed by the ACL.
11.6 The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice,
recommendation, information or assistance provided by the Supplier in relation to
the goods or services or their use or application; and
(b) it has not made known, either expressly or by implication, to the Supplier any
purpose for which it requires the goods or services and it has the sole responsibility
of satisfying itself that the goods or services are suitable for use of the Customer.
11.7 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or
having the e ect of excluding, restricting or modifying the application of any State
or Federal legislation applicable to the sale of goods or supply of services which
cannot be excluded, restricted or modified.
12. CANCELLATION
12.1 If the Supplier is unable to deliver or provide the goods or services, then it may
cancel the Customer’s order (even if it has been accepted) by written notice to the
Customer.
12.2 No purported cancellation or suspension of an order or any part of it by the
Customer is binding on the Supplier once the order has been accepted.
13. SHORTAGES AND EXCHANGES
13.1 Subject to clause 13.2 and 13.4, the Supplier will not be liable for any shortages,
damage or non-compliance with the specifications in the Agreement unless the
Customer notifies the Supplier with full details and description within 10 days of
delivery otherwise the Customer is deemed to have accepted the goods.
13.2 When any shortages, claim for damaged goods or noncompliance with the
Agreement specifications is accepted by the Supplier, the Supplier may, at its option,
replace the goods, or refund the price of the goods.
13.3 Subject to clause 13.4, the Supplier will not under any circumstances accept
goods for return that:
(a) have been altered in any way;
(b) have been used; or
(c) are not in their original condition and packaging.
13.4 If the Customer is a consumer, nothing in this clause 13 limits any remedy
available for a failure of the guarantees in sections 56 and 57 of the ACL.
14. FORCE MAJEURE
14.1 The Supplier is not liable in any way howsoever arising under the Agreement to
the extent that it is prevented from acting by events beyond its reasonable control
including, without limitation, industrial disputes, strikes, lockouts, accident,
breakdown, import or export restrictions, acts of God, acts or threats of terrorism or
war. If an event of force majeure occurs, the Supplier may suspend or terminate the
Agreement by written notice to the Customer.
15. CHARGE
15.1 In consideration of the Supplier entering into the Agreement, the Customer
agrees to charge in favour of the Supplier all their estate and interest in any land and
in any other assets, whether tangible or intangible, in which they now have any legal
or beneficial interest or in which they later acquire any such interest. The Customer
consents to the lodgement by the Supplier of a caveat or caveats which note their
interest in that real property.
16. CHANGE IN COMPANY STRUCTURE
16.1 The Agreement is made in respect of the owners and/or directors of the
Customer as at the date of Credit Application. The Customer agrees to notify the
Supplier in writing within seven (7) days of any change whatsoever in ownership
structure and further indemnify the Supplier against any loss or damage that may
result from the Customer’s failure to notify the Suppler of any such change.
16.2 If there is a change in the Customer’s ownership of which the Supplier in its
discretion deems to be material, the Supplier may suspend or withdraw all credit
facilities and require the Customer to submit a new Credit Application.
17. MISCELLANEOUS
17.1 The law of NSW from time to time governs the Terms. The parties agree to the
exclusive jurisdiction of the courts of NSW, the Federal Court of Australia, and of
courts entitled to hear appeals from those Courts
17.2 The Supplier’s failure to enforce any of these Terms shall not be construed as a
waiver of any of the Supplier’s rights.
17.3 If a clause is unenforceable it must be read down to be enforceable or, if it
cannot be read down, the term must be severed from the Terms, without a ecting
the enforceability of the remaining terms.
17.4 A notice must be in writing and handed personally or sent by email, facsimile or
prepaid mail to the last known address of the addressee. Notices sent by pre-paid
post are deemed to be received upon posting. Notices sent by facsimile or email are
deemed received on confirmation of successful transmission.
17.5 The Customer must comply with the Australian Privacy Principles in connection
with any personal information supplied to it in connection with this Agreement.