Fibonacci Products Pty Ltd Terms & Conditions Of Sale
1.1 Customer means the customer as defined in the order, tax invoice, or Schedule and their associates or related entities.
(a) the products as defined in the order, tax invoice, or Schedule; and
(b) any other product or material supplied by the Seller to the Customer from time to time.
Schedule means the schedule (if any) appearing immediately before these terms and conditions.
Seller means Fibonacci Products Pty Ltd ACN 164 996 043 (Trading as Fibonacci Stone)
SOP Act means the security of payment legislation that applies in the state that the Products are delivered, which shall be:
|State||Act that applies|
|Victoria||Building and Construction
Industry Security of Payment Act 2002 (VIC)
|New South Wales||Building and Construction Industry Security of Payment Act 1999 (NSW)|
|Queensland||Building and Construction Industry Payments Act 2004 (QLD)|
|South Australia||Building and Construction Industry Security Payment Act 2009 (SA)|
|Northern Territory||Construction Contracts (Security of Payments) Act (NT)|
|Western Australia||Construction Contracts Act 2004 (WA)|
|Tasmania||Building and Construction Industry Security of Payment Act 2009 (TAS)|
2.1 These terms and conditions, as amended from time to time by the Seller, apply to all sales of Products by the Seller to the Customer.
3.1 Prices quoted in any order accepted by the Seller apply to that order only and do not apply in any other circumstances.
3.2 All prices for products and services are GST exclusive. The Customer must pay at the time of payment of the Product is due, the GST payable in respect of the supply of the Product upon being given a valid tax invoice for the supply. Expressions used in this clause have the same meaning as in A New Tax System (Products and Services Tax) Act 1999 as amended.
3.3 Unless otherwise agreed to in writing by the parties the cost of freight is not included in the Prices and remains the Customer’s responsibility.
3.4 All prices are subject to change without notice and are not guaranteed unless an order is deemed to accepted.
4.1 The Customer may accept these terms and conditions by:
(a) placing an order for the Products;
(b) affirming an order for the Products made on its behalf;
(c) making a part payment or payment of a deposit to the Seller for the Products;
(d) giving written instructions to the Seller to proceed with an order;
(e) accepting delivery of Products; or
(f) signing these terms and conditions,
after a copy of these terms and conditions have been provided or made known to the Customer on the Seller’s website.
4.2 These terms and conditions may only be amended with the Seller’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Seller.
4.3 The Customer agrees that it:
(a) will cooperate and act in good faith with the Seller;
(b) will act reasonably at all times (including providing reasonable extensions of time); and
(c) it will not unreasonably delay or withhold its instructions, consent or approval or impose unreasonable conditions for its instructions, consent or approval if any consent or approval is sought by the Seller.
4.4 The Customer agrees if a request for consent or approval is made to the Customer by the Seller in writing, and no written response is received from the Customer within seven (7) calendar days of the request, the Customer shall be deemed to have given the consent or approval requested by the Seller and the Seller shall be entitled to rely on this deemed consent or approval without further reference to the Customer.
5.1 All orders must be accompanied by a deposit equal to 30% of the total order value unless the dispatch/delivery date falls within 30 days from the date of order upon which full payment is required at the time of order. All deposits and/or payments to the Seller are non-refundable.
5.2 Unless otherwise agreed in writing by the parties all invoices are payable 14 days prior to the delivery date of the Products.
5.3 The Customer agrees that each invoice is a valid payment claim for the purposes of the SOP Act.
5.4 Failure to pay an invoice when due is a breach of a material obligation by the Customer.
5.5 Time is of the essence for all Customer’s obligations.
5.6 The Seller reserves the right to stop at any time supplies of Products if the Customer is in breach of these terms.
5.7 The Seller accepts payments by Visa, MasterCard and American Express. All Credit Card payments incur a surcharge at the time of payment.
6.1 Credit terms (if any) must be confirmed in writing by the Seller and are non-transferable or re-assignable.
6.2 All accounts become due and fully payable if:
(a) The Customer is a Company and there is a change in its directors or shareholders; or
(b) The Customer is in breach of these terms and conditions.
6.3 The Seller reserves the right at all times to amend or withdraw any Credit (ie payment terms) on 24 hours written notice without liability to the customer or any other party.
7.1 Once placed orders may not be withdrawn by the Customer. The Seller reserves the right to refuse any order based on a quotation within 14 days after receiving the order. If the order is not refused it is deemed to have been accepted by the Seller.
7.2 If the Customer defaults under these terms and conditions, the Seller may cancel, suspend or vary the terms and conditions of any incomplete order that has been accepted by the Seller without notice to the Customer and without being liable to the Customer.
7.3 The Seller is not responsible to the Customer for a breach of its obligation to supply the Product pursuant to an order the Seller has accepted or for any delay in delivery, if the failure to supply or the delay in the delivery is caused by matters beyond the reasonable control of the Seller (including, without limitation, acts of God, acts of government, war or other hostility, national or international disaster, fire, explosion, power failure, equipment failure, strike or lockout, inability to obtain necessary supplies and any other force majeure occurrence).
7.4 Under no circumstance is the Seller liable for any consequential loss or damage or loss of profit resulting from any breach of contract or warranty, including breach of an essential term, and the Seller’s liability is maximum limited is limited to the order price of the Product.
7.5 The Customer accepts the risk of delay and acknowledges that any delivery times notified to the Customer are estimates only and the Seller is not liable for late delivery.
7.6 The Customer agrees that the Seller will be entitled to and the Customer will accept reasonable extensions of time on request by the Seller. In accepting these extensions of time, the Customer must not impose any unreasonable conditions, require the Seller to pay any cost or set off any part of the purchase price of the Products.
7.7 If the Customer requests the Seller to postpone delivery of the Product beyond the delivery date or dates specified in the order, the Seller may at its option, agree to do so if the Customer pays an additional fee of $100.00 for such postponement and for daily storage charges of $1.50 per/crate.
7.8 The Customer accepts Orders will be held in storage for a maximum of 14 days beyond the agreed delivery date upon which daily storage charges of $1.50 per/crate commence.
7.9 If the Customer requests that the Seller vary the order, the Seller may but is not obliged to do so unless the Customer:
(a) pays the Seller the amount required by the Seller upfront on making the variation order; and
(b) provides a reasonable extension of time to the Seller to account for the varied order.
- CONTRACTS AND QUOTATIONS
8.1 Any quotation given by the Seller to the Customer (subject to the Sellers right to withdraw the same) and any order given by the Customer to the Seller (which is accepted in writing by the Seller) shall incorporate these terms by reference. If there is any discrepancy between such quote and/or order and these terms, the said quote and/or order shall prevail to such an extent to resolve such a dispute, but otherwise the terms will continue to apply.
- DELIVERY OF PRODUCTS
9.1 Delivery of the Products shall take place when:
(a) the Customer takes possession of the Products at the Seller’s address ;or
(b) the Customer takes possession of the Products at the Customer’s nominated address
9.2 Where the site to which the Products are to be delivered is being controlled by a builder or contractor who is not the Customer under this agreement, the Customer irrevocably authorises and directs the Seller to take instructions from the builder or contractor as to when the Products are due for delivery on site so as not to impede the workflow or coordination of the programmed works on site.
9.3 The Customer will not only be responsible for Storage Charges but must make payment for the Products ready for delivery in full. Thereafter, the Seller shall charge the Customer and the Customer shall pay the applicable storage charges. In the event the Seller is unwilling or unable to store or continue to store the Products, the Customer will enter and authorises the Seller to enter on its behalf a storage contract at market rates, directly with a suitable independent storage facility and the Customer will be responsible for the costs thereof directly.
9.4 The Customer shall make all arrangements necessary to take delivery of the Products whenever they are tendered for delivery. In the event that the Customer is unable to take delivery the Seller shall be entitled to charge a re-booking fee of $150.00 in addition to the applicable charge for redelivery.
9.5 The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the Products (or any of them) promptly or at all, where due to circumstances beyond the control of the Seller.
9.6 Proof of delivery will not be provided unless requested within 7 days of delivery.
- RISK IN THE PRODUCT
10.1 If the Seller retains ownership of the Products (refer to Paragraph regarding “Title” below) nonetheless, all risk for the Products passes to the Customer on delivery.
10.2 If any of the Products are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Products.
10.3 The Customer acknowledges that variations of colour, shade and grain are inherent in all terrazzo tile products. While every effort will be taken by the Seller to match colour, shade or grain of product, the Seller 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.
10.4 The Customer acknowledges that the Products supplied may expand, contract or distort as a result of exposure to heat, cold weather, moisture and water.
10.5 The Customer acknowledges that the Products supplied may mark or stain if exposed to certain substances and be damaged by impact or scratching.
10.6 Before or when the Customer places an order for Products, the Seller may provide (including by making them available on the Seller’s website) the Customer with a product specification sheet (Specification) and/or technical product data sheet (Data Sheet) outlining technical details in relation to that type of Products. The Customer acknowledges and agrees that technical details in Specifications and Data Sheets are indicative only, and relate only to Products of such size and dimensions specified in the relevant Specification or Data Sheet and to the specific sample of Products tested. Due to natural variations, the technical details of the particular Products ordered by the Customer may differ from those outlined in the Specification and/or Data Sheet.
10.7 The Products if they are tested, are generally tested to AS 4586:2013 slip resistance classification of new pedestrian surface materials, however test results may vary between batches and the test results provided are to be interpreted as an indicative guideline only rather than a warranty or representation that all the Products will conform to the test results.
10.8 The Customer acknowledges and agrees that all information, Specifications, Data sheets and samples provided by the Seller in relation to the Products are approximations only and, subject to any guarantees under the Australian Consumer Law, deviations or variations from them which do not substantially or irreparably affect the Customer’s use of the Products will not entitle the Customer to reject the Products or to make any claim in respect of them.
10.9 Products are not guaranteed against cracking, chipping or scratching following installation.
10.10 The Customer acknowledges that it is the Customer’s responsibility to check quantities, with an on-site measurement before commencing fixing. Measurements taken off plans or the Customer’s figures by the Seller are approximate only and no responsibility is taken for their accuracy.
10.11 If the Customer orders an insufficient number of Products, then the Seller will take no responsibility for any variation of colour in further batches supplied to the Customer or the inability to supply Products at all.
10.12 The Seller will accept no responsibility for Products that have already been affixed. The Customer acknowledges and agrees that no claims can be made to the Seller once the Products are fixed, and it is the Customer’s responsibility to check all quantities and qualities of all the Products prior to installing them.
10.13 The Seller strongly recommends that Products should only be laid by qualified and experienced installation contractor in accordance with industry practices and industry standards. Inexperience with these materials can result in poor performance of the floor system and appearance of the installed Products. The Seller shall not be liable to any loss incurred by the Customer as a result of poor installation and/or damages or breakages caused by the installer.
- INSTALLATION, USE AND PURPOSE OF PRODUCTS
11.1 The Seller publishes information about the Products on its website www.fibonaccistone.com.au, and provides installation tips and guides in relation to the Products and information in relation to the recommended use, purpose and application of the Products. (Guides)
11.2 As stated in the Guides, installation tips provided by the Seller are guides only and do not replace the services of professional builders, contractors and/or consultants. Any statements or representations in the Guides about the use, purpose or application of the Products are of general nature only and do not take into account individual circumstances. The Customer must comply with the relevant Guides when installing and using the Products.
11.3 The Customer is solely responsible for the installation and use of the Products. The Seller will not be liable in relation to any installation or use of the Products by the Customer or third party which does not comply with the relevant Guides or is otherwise not in accordance with industry practice or industry standards (if any).
11.4 Apart from the Guides, the Seller may from time to time provide the Customer with additional information in relation to the use, purpose or application of the Products (Additional Information). Additional Information is based on the facts disclosed to the Seller at the time the information is provided to the Customer. If any relevant facts have not been disclosed to the Seller, or if circumstances change, the Additional Information may not be accurate. To the extent permitted by law, the Seller will not be liable in relation to any use of the Products by the Customer or third party which:
(a) Is not in accordance with the Additional Information; or
(b) Is not in accordance with Additional Information provided by the Seller at a time when the Seller was not in possession of all relevant facts pertaining to the Customer’s circumstances or where those circumstances have changed without the Seller’s knowledge.
12.1 The Seller and the Customer agree that ownership of the Products shall not pass until:
(a) the Customer has paid (payment constituted by cleared or honoured funds) the Seller all amounts owing for the particular Pro ducts; and)
(b) the Customer has met all other obligations due by the Customer to the Seller in respect of all contracts between the Seller and the Customer.
12.2 It is further agreed that:
(a where practicable the Products shall be kept separate and identifiable until the Seller shall have received payment and all other obligations of the Customer are met; and
(b until such time as ownership of the Products shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return the Products or any of them to the Seller and
(c) if the Customer fails to return the Products to the Seller the Seller (or its agent or servant) may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Products are situated and take possession of the Products; and
(d) the Customer is only a Bailee of the Products and until such time as the Seller has received payment in full for the Products then the Customer shall hold any proceeds from the sale or disposal of the Products, up to and including the amount the Customer owes to The Seller for the Products, on trust for the Seller; and
(e) the Customer shall not deal with the money of the Seller in any way which may be adverse to the Seller; and
(f) the Customer shall not charge the Products in any way nor grant nor otherwise give any interest in the Products while they remain the property of the Seller; and
(g) The Seller can issue proceedings to recover the purchase price of the Products sold (as quoted) notwithstanding that ownership of the Products may not have passed to the Customer; and
(h) until such time that ownership in the Products passes to the Customer, if the Products are converted into other products, the parties agree that the Seller will be the owner of the end products.
- PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)
13.1 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 Customer and the Seller by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
13.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
- all Products previously supplied by the Seller to the Customer (if any);
- all Products that will be supplied in the future by the Seller to the Customer.
13.3 The Customer 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 the Seller may reasonably require to:
- register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
- register any other document required to be registered by the PPSA; or
iii. correct a defect in a statement referred to in clauses 13.3 (a) i or 13.3 (a) ii;
(b) Indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Products charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products in favour of a third party without the prior written consent of the Seller; and
(e) Immediately advise the Seller of any material change in its business practices of selling the Products which would result in a change in the nature of proceeds derived from such sales.
13.4 The Customer acknowledges and agrees that the Seller will register a PPSR security interest on the PPSA on the Customer against all Products supplied by the Seller to the Customer. This security interest will only be discharged upon full payment of the purchase price for all Products.
13.5 The Seller and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
13.6 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3) (d) and 132(4) of the PPSA.
13.7 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.8 Unless otherwise agreed to in writing by the Seller, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
13.9 The Customer shall unconditionally ratify any actions taken by the Seller under clauses 6.3-6.5
14.1 The Customer shall inspect the Products on delivery and shall within fourteen (14) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Products within a reasonable time following delivery if the Customer believes the Products are defective in any way. If the Customer shall fail to comply with these provisions the Products shall be deemed to be free from any defect or damage. For defective Products, which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability shall be limited to replacing the defective Product.
14.2 The Customer accepts that up to 15% of the total order quantity will be used for off-cuts during installation and any damaged Products supplied up to 15% of the total quantity supplied that may have been damaged during handling, transit or storage or products with imperfections will be used for off-cuts and excluded from any claim. This also includes products with high degrees of tonal or colour variation which are to be removed from the batch and are not to be installed.
- Returns will only be accepted if:
(a) the Customer has complied with the provisions of clause 14.1; and
(b) The Seller has agreed in writing to accept the return of the Products; and
(c) the Products are returned at the Customer’s cost within fourteen (14) days of the delivery date; and
(d) The Seller will not be liable for Products which have not been stored or used in a proper manner; and
(e) the Products are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
15.2 The Seller may (at their sole discretion) accept the return of Products for credit but this will incur a handling fee of thirty percent (30%) of the list value at the time of the returned Products plus any freight costs.
15.3 Custom Products are under no circumstances acceptable for credit or return. In this clause, Custom Products includes any product which:
(a) has a custom colour requested by the Customer;
(b) the Seller does not, at the time of the order have in stock or in inventory, or which the Seller does not have sufficient stock or inventory to satisfy the order; or
(c) was made to order by third party manufacturers at the request of the Seller for the Customer.
15.4 Products made to the Customer’s specifications are under no circumstances acceptable for credit or return.
- DEFAULT AND CONSEQUENCES OF DEFAULT
16.1 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 a half percent (2.5%) per calendar month.
16.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all reasonable costs and disbursements incurred by the Seller in pursuing the debt.
16.3 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Seller may suspend or terminate the supply of Products to the Customer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because The Seller has exercised its rights under this clause.
16.4 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to suspend the performance of, or cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Seller becomes overdue, or in The Seller’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer 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 Customer or any asset of the Customer.
17.1 The Seller may terminate this agreement or cancel delivery of Products at any time before the Products are delivered by giving written notice to the Customer if the Products or any part of the Products become unavailable. If the Seller terminates the agreement or cancels delivery of the Products pursuant to this clause, the Seller will refund a reasonable proportion of any monies paid to the Seller having regard to the Products already ordered by the Seller or delivered by the Seller to the Customer. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation
17.2 The Customer agrees that it may only terminate this agreement and/or cancel delivery of the Product if:
(a) a reasonable time (which shall be not less than 3 months) has passed since the agreed delivery dates and none of the Products have been delivered; and
(b) the Seller has not provided a reasonable explanation to the Customer for the delay.
17.3 For the avoidance of doubt, any delay that is less than 3 months will not entitle the Customer to terminate this agreement or cancel delivery of the Product. The Customer agrees that this is fair and reasonable as during the period of delay, the Customer can carry out other works which will not require the Product. The Customer is not entitled to claim or set-off any loss, expense or liquidated damages for the delay.
17.4 In the event that the Customer terminates this agreement or cancels delivery of Products, the Customer irrevocably agrees that:
(a) the Seller shall be entitled to keep all monies paid to the Seller to date by the Customer;
(b) the Customer must pay to the Seller any shortfall between the amount constituting 50% of the purchase price of the Products and the monies paid to the Seller to date such that the Seller will be paid 50% of the purchase price of the Products, and the parties acknowledge and agree that this is a genuine pre-estimate of the loss that the Seller will suffer in terms of pre-commitment and obligations to and purchases of raw material from its suppliers and manufacturers.
17.5 For the avoidance of doubt, clause 17.4 applies without prejudice to the Seller’s rights including to claim against the Customer for the full purchase price of the Products.
- TIME BAR, CLAIMS AND LIABILITIES
18.1 Any claim by the Customer as to incorrect performance or breach of these terms and conditions must be made to the Seller in writing within 14 days of delivery, for which time is of the essence.
18.2 The Customer agrees that having regard to the nature of the Products, 14 days after delivery is a fair and reasonable amount of time for the Customer to inspect the Product and satisfy itself that these terms and conditions have been satisfactorily performed and complied with.
18.3 If the Customer does not make any claim against the Supplier within 14 days of delivery, the Customer agrees that to the fullest extent permitted by law, it shall be deemed to have irrevocably waived all rights against the Seller and released the Seller from all claims, actions, suits, demands, loss, or damage in connection with this agreement or the Product. The Seller may plead this clause as a bar to proceedings and an absolute defence to all claims.
18.4 The total liability to the Seller, its employees, servants and agents for breach of any warranty statutory or otherwise limited to one or more of the following at the option of the Seller:
(a) Replacement of the Product supplied or supply of equivalent Product;
(b) The cost of replacement or resupply of the Product;
(c) The repair of the Products;
(d) Payment of the cost of having the Product repaired; and does not extend to consequential loss or damage;
18.5 Subject to clause 14.2, no claims will be recognised by the Seller as being damaged in transit unless goods which are subject of the claim are duly noted on the carrier’s consignment note (which must be forwarded to the Seller together with any claim made by the Customer)
- EXCLUSION OF PRODUCT WARRANTIES
19.1 Except to the extent that a separate written warranty is given to the Customer by the Seller, the Customer agrees that:
(a) no warranties are provided by the Seller in regard to defects in the Product workmanship and material as the Product is not manufactured by the Seller; and
(b) any warranties or guarantees imposed under any statute or common law in relation to the Products are excluded to the maximum extent permitted by law.
- CORPORATE WARRANTIES
20.1 The Customer and the Seller warrant for the benefit of each other that:
(a) if it is not an individual, it has been incorporated or formed in accordance with the laws of its place of incorporation or formation, is validly existing under those laws and has power and authority to own its assets and carry on its business as it is now conducted;
(b) it has the power to enter into this agreement, to comply with its obligations under this agreement and exercise its rights under this agreement;
(c) the entry by it into, and its compliance with its obligations and exercise of its rights under this agreement does not and will not conflict with its constituent documents or cause a limitation on its powers or powers of its directions to be exceeded or any law binding on or applicable to it and its assets;
(d) it has in full force and effect each authorisation necessary for it to enter into this agreement, to comply with its obligations and allow this agreement to be enforced;
(e) its obligations under this agreement are valid and binding and are enforceable against it in accordance with its terms; and
(f) it is not insolvent.
- ADDITIONAL PROVISIONS APPLY
21.1 Any additional provisions set out in the Schedule bind the parties and if inconsistent with the other provisions of this document, override them to the extent of the inconsistency.
- INTELLECTUAL PROPERTY
22.1 The Customer agrees that all intellectual property or the like used to fulfil any order or provide any service remains the property of the Seller despite any contribution by the customer.
23.1 No waiver by the Seller of any breech of these terms and conditions operates as a waiver of any other breach, and the doing and/or omission of any act, matter or thing whatsoever by the Seller, its employees or agents (which but for this clause ought or might amount to a waiver of the Seller’s rights in respect of any such breach or default) does not operate as a waiver in any way of the Seller’s rights and powers in respect of such breach or default.
24.1 Any notice required under this agreement must be in writing and given by post, facsimile, email or hand to the Seller or the Customer at the address set out in the schedule or at such other address, facsimile or email as is notified by one party to the other.
- GOVERNING LAW
25.1 This contract is governed by the laws of Victoria, Australia, notwithstanding the place in which the Product or any of them are to be delivered. The Customer and the Seller irrevocably submit to the exclusive jurisdiction of the Courts of that State.
- Application of Act
Each party agrees that the SOP Act will apply to this agreement.
- WHOLE AGREEMENT
27.1 This terms and conditions and any warranties implied by law which are not capable of being excluded or modified embody the whole agreement between the parties and, subject to the express terms contained in any written order and written acceptance thereof (which will only apply to that particular order), all previous negotiations, representations, warranties, arrangements and statements (if any), whether expressed or implied, including any collateral agreement or warranty, regarding the subject matter or the intentions of either of the parties are merged in these terms and conditions and otherwise are hereby excluded and cancelled. The Customer acknowledges that it has not been induced to enter into this agreement by any representation, advice or information given or made by or on behalf of the Seller.
- PRIVACY AUTHORITY
28.1 For the purposes of assessing the credit-worthiness of the Customer from time to time and the collection of payments, the Customer authorises the Seller, its employees and agents to make such enquires as they deem necessary including, without limitation, making enquires of and obtaining reports (as may be allowed by law) from persons nominated by the Customer as trade referees, the Customer’s creditors, bankers and financiers, credit providers, mortgage and trade insurers and credit reporting agencies (“the information sources”). The Customer consents to the information sources providing to the Seller such information as is requested by the Seller and permitted to be given by law. The Customer also consents to the Seller disclosing personal information or the contents of any credit report to a credit reporting agency for the purpose of that credit reporting agency creating or adding to any credit information file in relation to the Customer.
29.1 The Customer must not assign its order nor any of its rights or obligations, there under, without the prior written consent of the Seller.
30.1 The Customer hereby indemnifies and shall keep the Seller indemnified against all actions, claims, demands, summons, suits, proceedings, judgements, orders or decrees made against the Seller resulting from the use by the Seller of the Customer’s special tools, dies, machinery and other equipment and without limiting the generality hereof in particular any matter arising from an allegation or infringement of rights in any registered design patent or copyright.
31.1 Complaints in respect of alleged faulty Products shall not entitle the Customer to withhold payment of any sum which has become payable to the Company and shall not give rise to any right of set-off unless and until any amount to be allowed by the Seller has been admitted and ascertained.
32.1 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.
32.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
32.3 The right and remedies of the Seller set out in this agreement apply in addition to any other rights and remedies available to the Seller under statute, at common law or at equity.
32.4 The Seller shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by The Seller of these terms and conditions.
32.5 In the event of any breach of this agreement by the Seller the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the purchase price of the Products.
32.6 The Customer shall not be entitled to set off against or deduct from the purchase price of the Product, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
32.7 The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
32.8 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.