These are the entire Terms and Conditions of sale of all goods, merchandise and services (“the goods”) supplied by Australian Door Company (“ADC”) 60 065 978 234, to any person, firm or company placing an order with ADC for the purchase of any goods (“the Customer”). Except as otherwise expressly agreed upon in writing between a duly authorised officer of ADC and the Customer, these Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by any Customer.
1. All orders placed with ADC shall only be accepted subject to these Terms and Conditions. ADC may at any time, and from time to time to the greatest extent permitted by law alter these Terms and Conditions and such altered Terms and Conditions shall apply after notification by ADC to the Customer.
2. If a Customer cancels or alters any order for special goods or standard goods with special materials at any time after ADC has received the order then ADC reserves the right to charge the Customer the costs of any special goods or special materials already acquired for the order together with the cost of any labour and tooling expended to the date of such cancellation or alterations.
3. Goods and Services Tax (“GST”), Sales Tax or any other applicable tax or duty payables shall be paid by or reimbursed by the Customer to ADC on demand and the Customer shall indemnify and keep indemnified ADC in respect of all taxes and duties including GST arising out of any sale of goods or the subsequent use of goods after the sale to the customer.
4. All prices shall be those referred to in ADC’s price lists and/or arrangements current at the date of invoice and prices shall be subject to change without notice.
5. Where quotes state “Primed Doors”, priming applies to the door face only. Where primed skins are used for ADC Routered type doors, the priming is removed during the course of machining the profile and where there are panels. This is not considered a defect. ADC does not supply fully primed doors.
6. ADC will store completed orders for no longer than 60 calendar days. After 60 calendar days, ADC will take ownership of the products and may, at it’s discretion, dispose or resell the products.
Terms of Payment
7. (a) Unless otherwise stated in writing all prices are strictly NETT. The granting of credit to a Customer shall be at the absolute discretion of ADC and unless otherwise demanded by ADC the Customer shall make payment of all amounts payable within thirty (30) days after the end of the month in which the sale has been manufactured in full.
(b) Customer(s) shall not be entitled to withhold payment of any account by reason of any account query, dispute or set off. The Customer agrees to pay ADC Administration and Handling fees in respect of any copies of documents required or other processing involved in the conduct of the account and such fees will be charged to the Customer’s account.
8. If the Customer fails to make payment in accordance with Clause 6, ADC shall be entitled to:
(a) The payment of cash before delivery of any further goods, and any goods relating to specials the payment of cash is required before manufacture;
(b) Charge interest at the rate of one point five percent (1.5%) per month on a cumulative basis on all overdue amounts (including late payment charges determined by ADC and other amounts other than the price charged against the Customer’s account) calculated on a day to day basis on any monies due but unpaid, such interest charge to be computed from the due date for payment up until payment has been received by ADC, AND the parties agree that such interest charge is not a penalty but is a fair measure of the damages incurred by ADC. Payments received from the Customer will be credited by ADC in the following order:
(i) first against any interest charge,
(ii) late payment charges and other administrative charges relating to late payment of the goods,
(iii) the price of the goods. All such fees shall be payable on demand by the Customer;
(c) Claim from the Customer at all costs, expenses and charges incurred on any account whatsoever including but not limited to any action taken by ADC to recover monies or goods due from the Customer including but not limited to any mercantile agent costs and legal costs and disbursements charged on a solicitor-client basis; and
(d) Cease any further deliveries to the Customer and to terminate any agreement in relation to the goods that have not been delivered.
(e) Customers having overdue accounts will be precluded from participating in and special deals, discounts, bonus payments, redemptions, rebates and all other incentive programs until their accounts are no longer overdue.
(f) If the Customer breaches or if the Customer shall be in breach of the Terms and Conditions, all outstanding amounts owing by the Customer as at the date of the breach or anticipatory breach by the Customer to ADC shall immediately become due and payable notwithstanding that the payment period shall not have expired.
(g) Secure payment of all amounts the Customer owes to ADC on any account from time to time as follows:
(i) the Customer charges in favour of ADC all of its real property from time to time, wherever located, which the Customer has a registerable interest in, whether owned solely or jointly, as a director of a company or in the capacity as trustee . Pursuant to this charge, the Customer confirms ADC’s caveatable interest in such real property and interest in land and consents to ADC lodging a caveat over all the Customer’s interest in real property at any time as described herein;
(ii) Immediately on ADC’s request, the Customer agrees to execute a mortgage in ADC’s favour over any of the real property the Customer has a registerable interest in, whether owned solely or jointly, as a director of a company or in the capacity as trustee. The Customer shall do all such necessary acts to procure such mortgage in favour of ADC over such real property whether or not owned solely, jointly or as trustee.
9. Any date or time quoted for delivery is an estimate only and ADC shall endeavour to effect delivery at the time or times quoted. ADC shall not be liable for any loss or damages directly or indirectly sustained by the Customer as a result of late delivery of that quoted.
10. The Customer shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery or any strike, lockout, unavailability of materials, accidents to machinery, differences with workmen, breakdowns, shortages of supplies or labour, fires, floods, storm or tempest, transport delays, acts of God, restrictions or intervention imposed by any laws, regulations, governments or agencies thereof and any other cause beyond the control of ADC or any other cause whatsoever.
11. ADC’s obligation to deliver shall be discharged on arrival of the goods at the Customer’s nominated delivery address appearing on the invoice. The Customer shall unload the goods upon delivery, provided that if the Customer is unable or unwilling to accept physical delivery of the goods when the goods are ready for delivery, ADC shall be entitled to charge a fee for any delay experienced or arrange for the storage of the goods at the risk and cost of the Customer including all transportation, storage and other consequential costs. ADC may, as its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to these Terms and Conditions of Sale.
12. The Customer shall examine the goods immediately after delivery and ADC shall not be liable for any incorrect delivery, shortage or defect or damage except where:
(i) ADC receives details in writing within seven (7) days of the date of delivery of the goods; and(ii) ADC notifies the Customer and accepts liability for any incorrect delivery, shortage or defect or damage in the goods thereafter.
Property and Risk
13. Notwithstanding delivery of the goods and their installation, property in any given goods shall remain with ADC until the Customer has paid and discharged any and all other indebtedness to ADC on any account whatsoever, including all applicable GST and other taxes, levies and duties. Any payment made by or on behalf of a Customer which is later avoided by the application of any Statutory Provision shall be deemed not to discharge the Customer’s indebtedness and, in such an even the parties are to be restored rights with each respectively would have had if the payment had not been made.
14. The risk in the goods shall pass to the Customer upon delivery to the Customer or his agent or to a transport company nominated by the Customer.
15. The Customer acknowledges that it is in possession of the goods solely as a Bailee for ADC until payment as defined in clause 6 has been made in full to ADC and until such payment: (a) The Customer shall be fully responsible for any loss or damage to the goods whatsoever and howsoever caused following delivery; and (b) The Customer shall store the goods separately from its own goods and those of any other party and in a manner which clearly identifies the goods, whether as separate chattels or as components, as the property of ADC. (c) The Customer shall maintain records of goods owned by ADC identifying them as ADC’ property, of the persons to whom the goods are sold or disposed to and of the payments made by such persons for such goods. The Customer shall allow ADC to inspect these records and the goods themselves on request.
16. The Customer hereby irrevocably grants to ADC, its agents and servants, an unrestricted right and license, without notice to enter premises occupied by the Customer to identify and remove any of the goods the property of ADC in accordance with the Terms and Conditions without in any way being liable to the Customer or any person claiming through the Customer. ADC shall have the right to sell or dispose of any such goods removed or otherwise in its sole discretion and shall not be liable for any loss occasioned thereby.
17. ADC licences the Customer to install the goods. If the goods are affixed to other materials, the totality thereof shall be the sole and exclusive property of ADC until payment as defined in clause 6 has been made in full to ADC unless the other materials or part thereof as or is the property of a party or parties other than the Customer in which case the totality thereof shall be deemed to be owned as tenants in common with such other party or parties in shares corresponding to the respective amounts paid or payable by the Customer in respect of such other party or parties.
18. The Customer shall be at liberty to agree to sell the goods (independently or affixed to other materials) subject to the condition that until payment has been made in accordance with clause 6, the Customer shall sell as an agent and Bailee for ADC and that the entire proceeds from the sale thereof shall be held in a separate account on trust for ADC.
19. The right to on-sell, deal or otherwise dispose of the goods in the normal course of trade may be revoked at any time by ADC and shall automatically cease if a Receiver is appointed over any of the assets on the undertaking of the Customer or if a winding up order is made against the Customer or it the Customer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation) or administration or calls a meeting of, or makes any arrangement or compositor with, creditors or commits any act of bankruptcy or where there Customer is default of any of its obligations to ADC.
20. The Customer shall do all such things and sign all such documents as are necessary and reasonably required to enable ADC to acquire a perfected security, which is continuously perfected, in respect of its interest in all goods supplied, under the Personal Properties Securities Act 2009 (Cth)(“the Act”).
21. The Customer shall provide all such information as is required to enable ADC to be in a position to register a purchase money security interest (“PMSI”).
22. The Customer acknowledges that a purchase money security interest is granted in favour of ADC, in priority to all other creditors in all goods that are supplied from time to time as a security for the Customer’s obligations to ADC.
23. The Customer agrees that it will indemnify ADC for any liability for any costs of registration, maintenance, enforcement or discharge of security and such other costs and expenses as ADC may incur from time to time in the course of protecting its security interest or PMSI in the goods supplied to the Customer where title to the goods have not transferred to the Customer due to the Customer owing money to ADC.
24. The Customer agrees to further grant a security interest in all present and after the acquired goods as security for all the monies now and in the future owing by the Customer.
25. The Customer agrees to waive or exclude such sections of the Act as ADC may require, subject to those sections being capable of exclusion.
26. The Customer agrees that it will not without notice, change its name or initiate any change registered to any registered documentation, or act in any manner which would impact on the registered security interest of ADC.
27. For the purpose of registration under clause 19 and 20 herein the Customer agrees that ADC’s security interest in the goods (or PMSI) is attached immediately upon the: (i) Customer obtaining the right to receive the goods; and(ii) ADC supplying the goods in exchange for registering its security interest or PMSI in the goods.
28. The security interest in the goods shall be discharged upon ADC receiving payment in full relating to such goods.
29. The Customer agrees that it has received full notice and disclosure under the Terms and Conditions that the goods are supplied subject to ADC’s security interest in the goods, which ADC shall be entitled to register in accordance with these Terms and Conditions and the Act.
30. Subject to payment in full being made as defined in clause 6, ADC shall use its best endeavours to pass on to the Customer the benefit of any warranties or guarantees it receives in respect of goods or parts thereof supplied to the Customer.
Limitation of Liability
31. These Terms and Conditions do not exclude, restrict or modify the application of any provisions of any Commonwealth, State or Territorial Law which by law cannot be excluded, restricted or modified. Australian Consumer Law, Clam and Warranty
32. Australian Consumer Law
A. Subject to these Terms and Conditions, ADC guarantees the following in relation to the goods:
1.A.1 A guarantee as title;
1.A.2 A guarantee as to undisturbed possession;
1.A.3 A guarantee that the Customer will acquire the goods free from any security, charge or encumbrance that has not been disclosed to the Customer before purchase of the goods;
1.A.4 A guarantee that the goods are of acceptable quality;
1.A.5 A guarantee that the goods are fit for a purpose either expressly or by implication by the Customer;
1.A.6 A guarantee that the goods supplied by a description, sample or model are the same as described, sampled or modeled;
1.A.7 A guarantee as to express warranties;
1.A.8 Any other guarantee required to be provided by ADC to the Customer in accordance with the Competition and Consumer Act 2010 (Cth) (“CCA”).
B. Any rights the Customer may have under the Australian Consumer Law, under Schedule 2 of the CCA shall apply notwithstanding any inconsistent provisions in these Terms and Conditions.
C. ADC provides the following Australian Consumer Law notice to the Customer:
The goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonable foreseeable loss or damage. The Customer is entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and failure does not amount to a major failure. The benefits provided by this warranty are in addition to other rights and remedies available to the Customer under law. If applicable and in the event that the goods are capable of retaining user generated data, ADC provides notice that the repair of the goods covered under the warranty may result in loss of such data. Products presented for repair may be replaced by refurbished products or the same type rather than being repaired, and refurbished parts may be used to repair the goods.
33. Except for those conditions and warranties of the CCA which may not be excluded, the Customer agrees that:i) It has not relied on any inducement, representation or statement made by or on behalf of ADC in purchasing the goods and there are no implied conditions or warranties herein and no collateral contracts in connection herewith (except such as may be in writing and signed by a duly authorised representative of ADC); and ii) This clause sets out the entire liability of ADC in respect of its liability under the CCA or otherwise in respect of liabilities to a consumer for a breach of condition or warranty with respect to the sale of goods or goods. In no circumstances will ADC incur any liability in respect of or arising out of or in connection with any special, consequential, direct or indirect loss or damage, harm or injury suffered or incurred by the Customer.
34. ADC shall not be liable for any failure or delay in supply or deliver the goods where such failure or delay is wholly or partially due to any cause or circumstance whatsoever outside the reasonable control of ADC including, but not limited to, war, strikes, lockouts, industrial disputes or unrest, government restrictions or interventions, transport delays, fires, acts of God, breakdown of plant, shortage of suppliers or labour, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind.
35. ADC shall have the right to terminate its contractual relationship with the Customer in the following circumstances:
(i) by giving seven (7) days written notice if the Customer fails to comply with any of these Terms and Conditions; or
(ii) by giving immediate written notice if the Customer being a natural person or persons commits any act of bankruptcy, or being a corporation passes a resolution for winding up or a liquidation (other than that for purposes of reorganisation or reconstruction) or administration or enters into any composition or arrangement with creditors or if any petition is presented for its winding up, or if a liquidator or provisional liquidator or administrator is appointed. ADC may, in addition to exercising all or any of its rights against the Customer, suspend any further deliveries and immediately recover possession of any goods not paid for in accordance with these Terms and Conditions.
36. Other than in respect of ADC’ obligations pursuant to these Terms and Conditions, ADC shall not be liable to accept any returned goods but may in its absolute discretion accept the return of goods, provided that such goods shall only be accepted for return with the prior written approval of a duty authorised representative of ADC. Goods returned for credit pursuant to this clause will be subject to handling and administration charges equivalent of 25% of the invoiced value of the returned goods. Return freight and other expenses will be paid for by the Customer and no returns of special goods will be accepted. Any returned goods must be accompanied with the relevant invoice numbers and/or a Goods Return Authority.
37. The Customer agrees that these Terms and Conditions shall be construed according to the laws of the State or Territory as ADC may in its sole discretion determine. Failing such determination the Customer consents to any proceedings being instituted and heard by any appropriate Court sitting in the State of Victoria applying the laws of the State of Victoria.
Servicing of Documents
38. The Customer agrees that service of any written notices may be effected by forwarding same by pre-paid post, facsimile or email to the last known address, facsimile number or email of the Customer.
Statement of Debt
39. A certificate signed by a Director, Secretary, Financial Controller or Credit Manager of ADC shall be a prima facie evidence of the amount of indebtedness of the Customer to ADC at that time.
40. ADC’ policy on the handling of personal information is to comply with the National Privacy Principles for the fair handling of personal information, as set out in the Privacy Act 1988 (Cth).
41. Any part of these Terms and conditions shall be capable of severance without affecting any other part of these Terms and Conditions between ADC and the Customer.
Guarantee and Indemnity
42. The Customer accepts that its directors, officers or other persons required by ADC shall execute a Guarantee and Indemnity in favour of ADC upon receiving such Guarantee and Indemnity document.
43. A failure of a party at any time to require full or partial performance of any obligation under these Terms and Conditions will not affect in any way the rights of that party to require that performance subsequently. Any waiver of a breach of these Terms and Conditions must be in writing signed by the party granting the waiver, and will be effective only to the extent specifically set out in that waiver.