Terms and Conditions of Sale — Discount Building Material Pty Ltd (ABN 36 640 767 086), the "Supplier" or "Seller".
1.1 Discount Building Material Pty Ltd (ABN 36 640 767 086) (the “Supplier” or “Seller”) supplies Goods to the “Customer” subject to the following trading Terms and Conditions of Sale (“Terms”).
1.2 These Terms apply whenever Goods are quoted for, sold, supplied or Delivered by the Supplier to the Customer.
1.3 Requesting or accepting a Quotation from, placing an Order with or accepting a supply or Delivery of Goods from the Supplier by a Customer constitutes acceptance by the Customer of these Terms.
1.4 To the extent that these Terms purport to be an acceptance of an Order, or offer, or amount to a counteroffer, they shall be capable of acceptance only on the basis of the Terms and by acceptance or delivery of the Goods.
1.5 These Terms constitute a complete and exclusive statement of the general conditions of sale between the Supplier and the Customer.
1.6 The Supplier reserves the right to stop supply, withdraw credit facilities and/or close the Customer’s account at any time without prior notice. Interest may be charged on overdue accounts.
The following definitions apply to the Terms unless the context otherwise necessarily requires:
3.1 The following rules of interpretation shall apply to the Terms unless the context otherwise necessarily requires.
3.2 References in the Terms to the Supplier or the Customer include references to their respective successors and permitted assigns.
3.3 Words and expressions, including defined terms in singular form, include a reference to cognate words and expressions in plural form and vice versa, and words and expressions importing a particular gender include references to cognate words and expressions importing each other gender.
3.4 Unless otherwise specifically indicated, a reference in the Terms to a clause, sub-clause, paragraph or sub-paragraph is a reference to a clause, sub-clause, paragraph or sub-paragraph of the Terms.
4.1 Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
4.2 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
4.3 Upon acceptance of these terms and conditions by the Buyer, the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions. Changes to these terms and conditions shall be made in writing on the mutual consent of both parties.
4.4 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing, nor is the Seller bound by any such unauthorised statements.
4.5 The Buyer undertakes to give the Seller not less than fourteen (14) days’ prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to changes in the Buyer’s address, facsimile number, or business practice).
5.1 The Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Buyer.
6.1 At the Supplier’s sole discretion, the Price shall be either:
6.2 Invoices will be issued by the Supplier on or after Goods have been delivered to the Customer’s Nominated Address.
6.3 The Buyer’s payment will be due either thirty (30) days:
If the time for payment is not stated, then it will be due thirty (30) days after the EOM in which the goods were delivered.
6.4 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed between the Buyer and the Supplier.
6.5 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
7.1 In the event payment of any amount invoiced pursuant to clause 6.1 is not received by the Supplier within 30 days from the date of the invoice (“the Outstanding Amount”), interest will be payable by the Customer on the Outstanding Amount at the rate of 12% per annum, or any other rate determined by the Supplier from time to time, and shall accrue until the outstanding amount and any applicable interest has been paid in full.
8.1 Provided that an Event of Default is not subsisting, the Supplier shall deliver the Goods to the Nominated Address within 1 month of the Supplier’s receipt of an Order by the Customer or at such other time as agreed between the Customer and the Supplier.
8.2 The Customer acknowledges and agrees that delivery of Goods by the Supplier within a variation of ±10% of the quantity provided in the Order will constitute a good commercial delivery of an Order.
8.3 Where, due to absence of sufficient identification or for any other reason, the Nominated Address cannot be located, or for any other reason beyond the control of the Supplier the Goods cannot be delivered, the Goods shall be returned to the Supplier and the costs and expenses incurred by the Supplier shall be added to the price of the Goods.
8.4 Where the Nominated Address is unattended by the Customer or any of its agents or servants, a certificate signed by the Supplier or any of the Supplier’s agents or servants stating the time, date and place of delivery shall be prima facie evidence of the Goods’ delivery.
9.1 The Buyer shall inspect the goods on delivery and shall, within seven days of delivery, notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way.
9.2 For Goods which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods, repairing the Goods or issuing a credit or refund, provided that:
10.1 Where the Seller has not received or been tendered the whole of the price, or the payment has been dishonoured, the Seller shall have:
11.1 It is the intention of the Seller and agreed by the Buyer that property in the Goods shall not pass until:
11.2 It is further agreed that:
12.1 Responsibility, risk of damage or loss of the Goods shall pass to the Customer immediately upon delivery to the Nominated Address.
12.2 Notwithstanding the passing of risk, property in the Goods shall not pass to the Customer until the price of the Goods has been paid.
12.3 Clause 12.2 applies notwithstanding any extension of credit by the Supplier to the Customer.
13.1 The Supplier may in its discretion determine the credit limit whereby the Customer shall make payments when required to ensure the amount outstanding from time to time remains within the limit determined.
13.2 The Supplier may at any time without notice terminate any extension of credit to the Customer and require immediate payment of all or other amounts owing by the Customer to the Supplier.
13.3 The Customer shall not be entitled to retain any amount owing to the Supplier at any time, notwithstanding any default or alleged default of the Supplier under the Terms.
14.1 The Supplier 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 Customer. On giving such notice the Supplier shall repay to the Customer any money paid by the Customer for the Goods.
14.2 The Customer 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 Supplier. On giving such notice the Supplier shall repay to the Customer any money paid by the Customer for the Goods.
14.3 Cancellation or variation of special item orders will not be accepted once production has commenced.
14.4 Neither party shall be liable to the other party for any loss or damage whatsoever arising from such cancellation.
15.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever, if the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer 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 the Seller or the Seller’s nominee to secure amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge, where appropriate, a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
15.2 Should the Seller elect to proceed in any manner in accordance with clause 15.1, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements, including legal costs on a solicitor and own client basis.
16.1 The following events are an “Event of Default”:
16.2 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its right under this clause.
16.3 In the event that:
the Seller shall be entitled to (i) all or any part of any order of the Buyer which remains unperformed, in addition to and without prejudice to any other remedies; and (ii) require that all amounts owing to the Seller, whether or not otherwise due for payment, immediately become payable, in addition to the interest payable under clause 16.1.
The Supplier will not be liable to the Customer for damages for any delay in the delivery of the Goods, and neither party shall be liable in damages to the other for any interruption in the supply or acceptance of Goods, or for any other act or omission which but for this clause might constitute a breach of the Terms, if such delay, failure to deliver or accept delivery, act or omission is caused by force majeure or any cause beyond the control of the party which, but for this clause, would be in breach of the Terms.
18.1 The Customer acknowledges and agrees that these Terms and any Invoice issued under these Terms:
18.2 The Customer undertakes to:
The Customer further agrees that where the Supplier has rights in addition to those under Part 4 of the PPSA, those rights will continue to apply, and hereby consents to the execution, registration and perfection of each and every security interest and agrees that any security interest created will have priority in respect of the secured property.
18.3 To the extent section 115(1) allows this, sections 95, 125, 130, 132(3)(d), 132(4), 142 and 143 of the PPSA will not apply to any Security Interest created under these Terms and any Invoices issued under these Terms.
18.4 To the extent section 115(7) allows this, sections 127, 129(2), 132, 134(2), 135, 136(3), (4) and (5) and 137 of the PPSA will not apply to any Security Interest created under these Terms and any Invoices issued under these Terms.
18.5 To the extent the law allows, the Customer and each of the Guarantors waives its rights to receive any notice that is required by:
18.6 If a law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period that the law allows to be agreed (whichever is longer). However, nothing in this clause prohibits the Supplier or any receiver from serving a notice under the PPSA or pursuant to any other law.
18.7 The Customer waives any right to receive any notice required to be provided under the PPSA (including under sections 144 and 157) in respect of any Security Interest, unless the requirement to give the notice cannot be waived or excluded.
18.8 The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 18.1 to 18.8 of these Terms.
18.9 Subject to any express provisions to the contrary, nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
18.10 The Customer acknowledges that the Supplier has the right to register the Goods on the PPSR.
18.11 The Customer agrees to provide all relevant information to enable the Supplier to register the Goods on the PPSR and generally to maintain, obtain, register and enforce the security interests created pursuant to these terms and conditions.
18.12 The Customer hereby consents to the execution, registration and perfection of each and every security interest, and agrees that any security interest created will have priority in respect of the secured property.
18.13 Unless otherwise agreed and to the extent permitted by the PPSA, the parties agree not to disclose any information of a kind referred to in section 275(1) of the PPSA to an interested person or any other person. The Customer waives any right it has to authorise disclosure of the above information.
18.14 In addition to any rights the Supplier may have under Chapter 4 of the PPSA, the Supplier may, at any time, demand the return of the Goods and shall be entitled, without notice to the Customer and without liability to the Customer, to enter any premises where it suspects the Goods may be located in order to search for and remove the Goods without committing a trespass, even though they may be attached or annexed to other goods or land not the property of the Customer. For this purpose the Customer irrevocably licenses the Supplier to enter such premises, undertakes that it will procure any necessary authority to enter from any relevant person, and indemnifies the Supplier from and against all loss suffered or incurred as a result of the Supplier exercising its rights under this clause. If there is any inconsistency between the Supplier’s rights under this clause and its rights under Chapter 4 of the PPSA, this clause prevails.
18.15 All costs and expenses arising as a result of actions taken by either party pursuant to this clause 18 will be for the account of the Customer. Within 7 days of a written request, the Customer must pay to the Supplier any costs or expenses incurred or to be incurred in connection with this clause 18.
18.16 Pursuant to section 125(3) of the PPSA, the Supplier may delay disposing of, or taking action to retain, the whole or part of the collateral that it seizes under section 123 of the PPSA, for as long as it sees fit in its absolute discretion.
19.1 The Customer must, whenever requested by the Supplier and at the cost of the Customer, do or cause to be done anything requested by the Supplier:
20.1 The Seller has the right to dispose of Goods in the event that:
21.1 The Customer agrees to indemnify the Supplier against any claim, loss, liability or damage, costs, charges and expenses (including the Supplier’s legal costs on a solicitor/own client basis) suffered or incurred by the Supplier which arises directly or indirectly in relation to:
21.2 The Customer agrees to pay such expenses to the Supplier immediately on demand.
22.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
23.1 The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.
23.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information about the Buyer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency, for the purpose of:
23.3 The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (section 18K(1)(h) Privacy Act 1988).
23.4 The Buyer agrees that Personal Data may be used and retained by the Seller for the following purposes, and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time:
23.5 The Seller may give information about the Buyer to a credit reporting agency for the following purposes:
24.1 The Customer shall give the Supplier not less than fourteen (14) days’ prior written notice of any proposed change of control or ownership or office holding of the Customer and/or any other change in the Customer’s details (including but not limited to changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.
24.2 In the event of a change pursuant to clause 24.1, the Supplier may require that the Customer enter into a new Credit Account Application and may, at its sole discretion, require the Customer or any other reasonable person to sign a Guarantee and Indemnity.
25.1 If a dispute or difference between the parties arises in connection with the subject matter of this Contract, either party shall, by post or by hand, provide written notice of the nature and details of the dispute.
25.2 Within 14 days of receipt of a notice in accordance with clause 25.1, senior management representatives of each party, with full authority to agree such resolution or resolution methods, shall confer to resolve the dispute or agree methods for resolving it. All aspects of the conference, except for the fact of its occurrence, shall be privileged.
25.3 Nothing in this clause 25 prevents a party seeking urgent interlocutory relief from a Court, or requires that party to participate in informal resolution processes for longer than thirty (30) days after the dispute has arisen.
26.1 The Supplier and the Customer agree that a Contract and any other information furnished by one party to the other pursuant to the Contract is and remains confidential between the parties, and the parties must not disclose the same, or permit or cause the same to be disclosed, either directly or indirectly, to any third party unless:
26.2 The expression “any third party” does not include the financial or legal advisors of a party or a related body corporate of a party.
27.1 If any of these terms and conditions is invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
27.2 All Goods supplied by the Seller are subject to the laws of New South Wales, and the Seller takes no responsibility for changes in the law which affect the Goods supplied.
27.3 The Buyer shall not set off against the Price amounts due from the Seller.
27.4 The Seller may license or sub-contract all or any part of its rights and obligations with the Buyer’s consent.
27.5 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in these terms and conditions, that change will take effect from the date on which the Seller notifies the Buyer of the change.
27.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.