1.1 “Seller” means Davies Knight Pty Ltd T/A QAQ Decorative & Privacy Screens/Panels, its successors and assigns or any person acting on behalf of and with the authority of Davies Knight Pty Ltd T/A QAQ Decorative & Privacy Screens/Panels.
1.2 “Buyer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Buyer is a reference to each Buyer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by the Seller to the Buyer at the Buyer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between the Seller and the Buyer in accordance with clause 4 below.
2.1 The Buyer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Buyer places an order for or accepts delivery of the Goods.
2.2 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 Buyer and the Seller.
2.3 Goods are supplied by the Seller only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Buyer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
2.4 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.
2.5 The Buyer acknowledges and accepts that a lead time may apply to an order, and the Seller shall not be held liable for any costs, losses or damages that may result in any delay by the Seller in providing the Goods.
2.6 The Buyer accepts that unless otherwise stated, all amounts shall be in Australian Dollars.
3. Change in Control
3.1 The Buyer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s name, address, contact phone or fax number/s, or business practice). The Buyer shall be liable for any loss incurred by the Seller as a result of the Buyer’s failure to comply with this clause.
4. Price and Payment
4.1 At the Seller’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Seller to the Buyer; or
(b) the Price as at the date of delivery of the Goods according to the Seller’s current price list; or
(c) the Seller’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 The Seller reserves the right to change the Price if a variation to the Seller’s quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to unforeseen circumstances such as change of design, fluctuations in metal prices, delays in delivery of raw materials or as a result of any increase to the Seller’s in the cost of materials and labour) beyond the Seller’s control will be charged for on the basis of the Seller’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At the Seller’s sole discretion a deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Buyer on the date/s determined by the Seller, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Buyer by the Seller.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card, or by any other method as agreed to between the Buyer and the Seller.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Buyer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Goods. The Buyer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Buyer pays the Price. In addition the Buyer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Buyer or the Buyer’s nominated carrier takes possession of the Goods at the Seller’s address; or
(b) the Seller (or the Seller’s nominated carrier) delivers the Goods to the Buyer’s nominated address even if the Buyer is not present at the address.
5.2 At the Seller’s sole discretion the cost of delivery is in addition to the Price.
5.3 The Buyer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 The Seller may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 Any time or date given by the Seller to the Buyer is an estimate only. The Buyer must still accept delivery of the Goods even if late and the Seller will not be liable for any loss or damage incurred by the Buyer as a result of the delivery being late.
6.1 Risk of damage to or loss of the Goods passes to the Buyer on Delivery and the Buyer must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
6.3 If the Buyer requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Buyer’s sole risk.
6.4 Where the Buyer is to supply the Seller with any design specifications (including, but not limited to CAD drawings) the Buyer shall be responsible for providing accurate data. The Seller shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Buyer.
6.5 The Buyer acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. The Seller will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
6.6 The Buyer acknowledges that where an anodised surface finish has been selected, slight colour variation may occur between the main unit frame and any installation trims used due to the difference in aluminium alloys available and manufacturing standards and tolerances shall not deemed to be a defect in the Goods.
6.7 The Buyer acknowledges that Goods supplied may:
a) fade or change colour over time; and
b) expand, contract or distort as a result of exposure to heat, cold, weather; and
c) mark or stain if exposed to certain substances; and
d) be damaged or disfigured by impact or scratching.
6.8 The Buyer shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
7. Accuracy of Buyer’s Plans and Measurements
7.1 The Seller shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Buyer. The Buyer acknowledges and agrees that in the event that any of this information provided by the Buyer is inaccurate, the Seller accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
7.2 All customary industry tolerances shall apply to the dimensions and measurements of the Goods unless the Seller and the Buyer agree otherwise in writing.
8. Title and related matters
(b) Until the Amount Payable has been reduced to zero, the Customer holds the Goods as bailee for the Supplier and a fiduciary relationship exists between the Customer and the Supplier.
(c) If there is any Amount Payable, until the Goods are sold in accordance with clause 8(f), or become an Accession or Processed Goods, the Customer shall:
i) keep the Goods separate and in good condition as a fiduciary of the Supplier, clearly showing the Supplier’s ownership of the Goods;
ii) keep books recording the Supplier’s ownership of the Goods and the customer’s sales or
iii) otherwise of them in accordance with clause 8(f); and
iv) if required by the Supplier, deliver the Goods up to the Supplier.
(d) The Customer may only install or affix the Goods to other goods (so that they become an Accession to those other goods) or use or permit the Goods to be manufactured, processed, assembled, commingled or otherwise dealt with (so that they become Processed Goods) in the ordinary course of its normal business.
(e) If the Customer is in Default, in addition to the Supplier’s other rights under the Terms and Conditions, the PPSA or any other applicable law, the Supplier may:
i) take possession of the Goods or any Processed Goods, wherever they are located;
ii) remove any Goods which have become an Accession; and/or
iii) enter upon the Customer’s premises for that purpose; and/or
iv) appoint any person to be a receiver of all or any of the Goods, Accessions, Processed Goods or other assets the subject of the security interests created by this document.
(f) Despite clause 8(a), the Customer may sell the Goods, any Accession or any Processed Goods to a third party in the normal course of the Customer’s business provided that the Customer holds the proceeds of sale on trust for the Supplier to the extent of the Amount Payable. The Customer must keep those proceeds separate on trust for the Supplier and not mix those proceeds with any other monies.
(g) Unless otherwise expressly agreed in writing, the Supplier will allocate and apply amounts received from the Customer in the following order:
i) in or towards payment of any part of the Amount Payable which is not part of the purchase price of any Goods, in the order in which those amounts were incurred; and
ii) secondly, in or towards payment of the purchase price of Goods in the order in which those Goods were invoiced.
This order of allocation and application will apply notwithstanding any instruction, request or appropriation of the Customer as to the way in which a payment made by it should be applied by the Supplier, or any condition attached by the Customer to any payment made by it.
9. Security interest, Charge and Mortgage
(a) The Customer grants to the Supplier a security interest in the Goods to secure payment of the Amount Payable. The security interest:
i) extends to and continues in all proceeds, Accessions and Processed Goods; and
ii) is a purchase money security interest to the extent to which it secures payment of that part of the Amount Payable which comprises the aggregate unpaid purchase price of Goods.
(b) The Customer must not do or permit anything to be done that may result in the purchase money security interest granted to the Supplier ranking in priority behind any other security interest.
(c) The Customer charges and mortgages in favour of the Supplier, all of the Customer’s interest and rights in all present and future real property of the Customer to secure the performance of the Customer’s obligations under each Contract, including payment of the Amount Payable. The Customer acknowledges that the Supplier has a caveatable interest in any real property of the Customer under this clause and may lodge a caveat over that property. Upon demand by the Supplier, the Customer agrees to immediately execute a mortgage in favour of the Supplier on terms satisfactory to the Supplier to more particularly describe the mortgage conferred by this clause. Should the Customer fail within a reasonable time of such demand to execute that mortgage, then the Customer irrevocably appoints the Supplier as its attorney with authority to do on its behalf anything that it may lawfully authorise an attorney to do including, without limitation, to make, sign, execute, seal and deliver any document and to take possession of, use, sell or otherwise dispose of any real property of the Customer. For the purposes of this clause 9(c) the Supplier will be the relevant company that issues the Order Acknowledgment or appropriates or supplies the Goods in connection with an Order Acknowledgement.
10. Contracting out of the PPSA
(a) The Customer:
i) waives the right under section 157 of the PPSA to receive a copy of the verification statement verifying registration of a financing statement or a financing change statement relating to any security interest created under the Contract; and
ii) contracts out of its rights to receive any other notice or statement under any other provision of the PPSA (including for the avoidance of doubt, any of the provisions specified in paragraph (b)).
(b) To the fullest extent permitted by the PPSA, the parties agree to contract out of sections 95, 117, 118, 120, 121(4), 125, the second sentence of section 126(2), sections 129(2), 129(3), 130, 132(3)(d), 132(4), 142 and 143, which sections (or parts of sections) shall not apply.
(a) A party will be in Default if:
i) it breaches a material term of any Contract and such breach is not remedied within 14 days of receiving notice from the other party requiring it to do so, unless such breach arises out of the supply of defective Goods, in which case the Supplier shall remedy the breach within such time as is reasonable in the circumstances;
ii) in the case of the Customer being a body corporate, it becomes an externally- administered body corporate or has an application for winding up filed against it;
iii) in the case of the Customer being an individual, it commits an act of bankruptcy or becomes an insolvent under administration;
iv) in the case of the Customer, payment for the Goods has not been received by the Supplier by the due date for payment; or
v) in the case of the Customer, any representation or warranty made by it in or in connection with a Contract, or any information provided by it to the Supplier in or in connection with a credit application, is incorrect, misleading or deceptive (whether by omission or otherwise) in any material respect; or
vi) in the case of the Customer, the Supplier forms the opinion in its absolute discretion that the Customer's creditworthiness or credit standing alters from that indicated in its credit application.
i) treat an Order Acknowledgement or the whole of the Contract as repudiated and sue for breach of contract; and/or
ii) being the Supplier, refuse to supply any Goods to the Customer on credit or at all; and/or
iii) being the Supplier, claim the return of any Goods in the Customer's possession where title has not passed to the Customer or exercise any other right or remedy available to it under the Contract, the PPSA or any other applicable law, including to enforce the security interests created by the Contract; and/or
iv) being the Supplier, by notice to the Customer declare all monies owing by the Customer to the Supplier on any account immediately due and payable (including the Amount Payable).
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Buyer must inspect the Goods on delivery and must within forty-eight (48) hours of delivery notify the Seller in writing of any evident defect/damage, shortage in quantity, correct size, tolerance and quality, or failure to comply with the description or quote. The Buyer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Buyer must allow the Seller to inspect the Goods.
12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
12.3 The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Seller makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Buyer is a consumer within the meaning of the CCA, the Seller’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If the Seller is required to replace the Goods under this clause or the CCA, but is unable to do so, the Seller may refund any money the Buyer has paid for the Goods.
12.7 If the Buyer is not a consumer within the meaning of the CCA, the Seller’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Buyer by the Seller at the Seller’s sole discretion;
(b) limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Goods;
(c) otherwise negated absolutely.
12.8 Subject to this clause 11, returns will only be accepted provided that:
(a) the Buyer has complied with the provisions of clause 11.1; and
(b) the Seller has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Buyer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
12.9 Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, the Seller shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Buyer failing to properly maintain or store any Goods;
(b) the Buyer using the Goods for any purpose other than that for which they were designed;
(c) the Buyer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Buyer failing to follow any instructions or guidelines provided by the Seller;
(e) fair wear and tear, any accident, or act of God.
12.10 In the case of second hand Goods, unless the Buyer is a consumer under the CCA, the Buyer acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Buyer acknowledges and agrees that the Seller has agreed to provide the Buyer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 11.10.
12.11 The Seller may in its absolute discretion accept non-defective Goods for return in which case the Seller may require the Buyer to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
12.12 Notwithstanding anything contained in this clause if the Seller is required by a law to accept a return then the Seller will only accept a return on the conditions imposed by that law.
13. Intellectual Property
13.1 Where the Seller has designed, drawn or developed Goods for the Buyer, then the copyright in any designs and drawings and documents shall remain the property of the Seller.
13.2 The Buyer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Buyer’s order and the Buyer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
13.3 Where the Seller has designed or drawn Goods for the Buyer then the Buyer undertakes to acknowledge the Seller’s design or drawings in the event that images of the Goods are utilised in advertising or marketing material by the Buyer.
13.4 The Buyer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Seller has created for the Buyer.
14.1 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party's written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
15. Default and Consequences of Default
15.1 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 (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Buyer owes the Seller any money the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s contract default fee, and bank dishonour fees).
15.3 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) under these terms and conditions the Seller may suspend or terminate the supply of Goods to the Buyer. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller has exercised its rights under this clause.
15.4 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to make a payment when it falls due;
(b) the Buyer 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
QAQ Decorative & Privacy Screens/Panels – Terms & Conditions of Trade
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
16.1 The Seller 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 Buyer. On giving such notice the Seller shall repay to the Buyer any money paid by the Buyer for the Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.3 Cancellation of orders for Goods made to the Buyer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
(b) The Supplier may collect, use and disclose that personal information for purposes relating to a Contract and to the Customer’s credit application and account. This includes assessing the Customer’s application, monitoring the value of and enforcing the security interests created by a Contract, reviewing credit arrangements on a periodic basis or in connection with changes (e.g. credit limit) as though assessing a new application, order fulfilment and delivery, market research, planning, business development, debt collection and customer relationship management. The Supplier may also conduct lawful and relevant credit and reference checks (including consumer credit checks on the Customer where the Customer is an individual), and deal with personal information in connection with any acquisition or potential acquisition of any part of the Supplier’s business. Without the personal information sought, the Supplier may not be able to do these things, including fulfill orders and process credit applications.
(c) The Supplier may provide marketing communications to the Customer by email and other means on an ongoing basis, unless the Customer opts out by contacting the Supplier or legal restrictions apply.
(d) The Supplier may exchange personal information with the Customer’s guarantors and prospective guarantors (e.g. for the purpose of them deciding whether to act as guarantor), the Customer’s representatives and the Supplier’s service providers. The Supplier may also exchange that information with other credit providers for purposes including to: assess a credit or guarantor application; determine credit/default status; and assess or comment on credit worthiness. Some of these third parties may be located in other countries. While these parties outside Australia will often be subject to privacy and confidentiality obligations, Customer acknowledges and agrees for itself and as agent for each of its officers, employees, agents, contractors, guarantors and representatives that: (a) privacy obligations overseas may not always apply or may differ from Australian privacy laws; (b) the Supplier may not be accountable for the third party under the Privacy Act or for the overseas recipient’s storage, use or disclosure of the information; (c) individuals may not be able to seek redress under the Privacy Act for that disclosure or for the acts or omissions of the overseas recipient of the information; and (d) the third party may be subject to foreign laws which might compel further disclosures of personal information (e.g. to government authorities).
18.1 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. If any provision of these
QAQ Decorative & Privacy Screens/Panels – Terms & Conditions of Trade terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which the Seller has its principal place of business, and are subject to the jurisdiction of the courts in Victoria.
18.3 Subject to clause 11, the Seller shall be under no liability whatsoever to the Buyer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
18.4 The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
18.5 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
18.6 The Buyer agrees that the Seller may amend these terms and conditions at any time. If the Seller makes a change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Buyer of such change. The Buyer will be taken to have accepted such changes if the Buyer makes a further request for the Seller to provide Goods to the Buyer.
18.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.8 The Buyer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.