1.1 “Seller” means Attic Ladders Pty Ltd of Unit 2, 12 Frederick Street, St Leonards NSW 2065 and its successors and assigns.
1.2 “Buyer” means the buyer named in the Quote.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer on a principal debtor basis.
1.4 “Goods” means Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” means all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” means the cost of the Goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.
1.7 “Quote” means a quote, order form, proposal or similar offer for purchase of Goods and Services provided by the Seller to the Buyer.
1.8 “ACL” or “Australian Consumer Law” means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
1.9 “Consumer” has the same meaning as under ACL.
1.10 “Tax Invoice” has the meaning given to that term by the GST law.
1.11 “PPSA” means the Personal Properties Securities Act 2009 (Cth).
2.1 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 these terms and conditions.
2.2 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
3.1 Upon the Buyer’s request, the Seller will provide a Quote to the Buyer. Unless previously withdrawn, a Quote is valid for 30 days or such other period as stated in it.
3.2 A Quote is not to be construed as the Seller’s obligation to sell but merely an invitation to treat and no contractual relationship shall arise from it until the Buyer’s order has been accepted in writing by the Seller.
4 Goods and Price
4.1 The Goods and Price are as set out on the Quote accepted by the Buyer, unless otherwise agreed by the parties.
5 Invoice and Payment Term
5.1 At the Seller’s sole discretion, a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable. Upon cancellation prior to shipment any deposit paid by the Buyer shall be forfeited to Seller. The Buyer acknowledges that the deposit is a genuine estimate of damage incurred to the Seller caused by the Buyer’s cancellation of order.
5.2 The Seller will issue a Tax Invoice to the Buyer as required by law.
5.3 Unless the parties agree otherwise, the Buyer must pay the Tax Invoice for Goods and Services supplied to it and the delivery fees within 7 days of the date of the Tax Invoice. Time for payment is of the essence.
5.4 The Seller, at its sole discretion, may extend the payment term or allow payment by instalments.
5.5 Payment may made by cash on delivery, or by cheque, or by bank cheque, or by credit card (a surcharge of up to 3.5% for American Express & Diners Cards and up to 2% for MasterCard & Visa may be applicable), or by direct credit, or by any other method as agreed to between the Buyer and the Seller.
5.6 The Price are inclusive of GST.
6 Delivery of Goods / Services
6.1 Delivery of the Goods shall be made to the Buyer’s nominated address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Buyer at the address determined by the Seller.
6.2 Delivery of the Goods to a carrier, either named by the Buyer or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Buyer, is deemed to be a delivery of the Goods to the Buyer.
6.3 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
6.4 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
6.5 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
6.6 Without limiting its other rights and remedies, the Seller may suspend or cancel delivery of the Goods if payments owing from the Buyer to the Seller remain outstanding.
7.1 All risk of loss of or damage to the Goods passes to the Buyer on the passing of title to the Goods to the Buyer, or delivery of the Goods in accordance with clause 6.
7.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. 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.
8 Defects / Returns
8.1 The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery and 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. If the Buyer shall fail to comply with these provisions, the Goods shall be conclusively presumed
to be in accordance with the terms and conditions and free from any defect or damage.
8.2 For defective 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 or repairing the Goods provided that:
(a) the Buyer has complied with the provisions of clause 8.1;
(b) the Goods are returned at the Buyer’s cost within seven (7) days of the delivery date;
(c) the Seller will not be liable for Goods which have not been stored or used in a proper manner;
(d) the Goods 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.
8.3 The Seller may (in its discretion) accept the Goods for credit but this may incur a handling fee of 15% of the value of the returned Goods plus any freight. This clause 8 does not limit a Consumer’s rights and remedies under ACL and clause 9 of these terms and conditions.
9 Warranties against Defects
9.1 Subject to the conditions of warranty set out in Clause 9.2 the Seller warrants that if any defect in any workmanship of the products or services provided by the Seller becomes apparent and is reported to the Seller within twelve (12) months of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) repair, replace or provide a refund for the Goods.
9.2 The conditions applicable to the warranty given by Clause 9.1 are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) Failure on the part of the Buyer to properly maintain any Goods; or
(ii) Failure on the part of the Buyer to follow any instructions or guidelines provided by the Seller; or
(iii) Misuse or abuse of any Goods, including overloading, dropping or abusive treatment; or
(iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) Repair or other work is carried out on the Goods by the Buyer or another person other than the Seller or a person approved by the Seller; or
(vi) any accident or act of God.
(b) The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent.
(c) In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Buyer’s claim.
9.3 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor responsible for any term, condition, representation or warranty given by the manufacturer of the Goods.
9.4 In order to make a claim the Buyer must contact the Seller on 1300 655 525 in a timely manner. The Buyer must provide the Seller with details of the Goods, satisfactory proof of purchase (e.g. Tax Invoice), a description of the defect and satisfactory proof (e.g. images) and appropriate contact details.
9.5 The Buyer is responsible for the freight cost associated with the return or replacement of the Goods.
9.6 Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods.
9.7 The benefits to the consumer given by the warranty are in addition to other rights and remedies of the consumer under a law in relation to the goods or services to which the warranty relates.
9.8 Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
(a) to cancel your service contract with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
10 Limitation of Liability
10.1 Any provision of these terms and conditions that excludes any terms, conditions or warranties, or limits the liability of a party will apply only to the extent permitted by law and these terms and conditions will be construed subject to such terms, conditions, warranties and limitations.
10.2 Subject to clause 10.1, where any terms, conditions or warranties are implied by law into these terms and conditions which the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent, the liability of the Seller to Buyer under such implied terms, conditions or warranties is limited, at the option of the Seller, to the repair or replacement of goods, or payment of the cost of repairing or replacing the goods.
10.3 Except as expressly provided in these terms and conditions, to the extent permitted by law, the Seller will have no liability to Buyer, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity.
11 Intellectual Property
11.1 Where the Seller has designed or drawn Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Buyer at the Seller’s discretion.
11.2 Where the Buyer gives any designs or instructions to the Seller, the Buyer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the fulfilment of the Buyer’s order.
12 Default & Consequences of Default
12.1 The Seller may charge interest on any overdue monies at the monthly rate of 2.5%, calculated from the due date for payment of the outstanding amount until the date of payment by the Buyer. Any payment made by the Buyer will be credited first against any interest that has accrued.
12.2 The Seller will be entitled to recover from the Buyer all legal and other costs incurred by the Seller arising from the Buyer’s default in payment and the collection of any overdue monies.
12.3 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), 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 rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the Goods or Services an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
12.5 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent or bankrupt, or enters procedures relating to its insolvency or bankruptcy; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer,
then without prejudice to the Seller’s other remedies at law:
(i) the Seller shall be entitled to cancel 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) all amounts owing to the Seller shall, whether or not due for payment, immediately become payable in addition to the interest payable under clause 12.1.
13.1 It is the intention of the seller and agreed by the Buyer that property in the Goods shall not pass until:
(a) The Buyer has paid all amounts owing for the particular Goods, and
(b) The Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer, and that where practicable the Goods shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.
13.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership of rights in respect of the Goods shall continue.
13.3 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
(b) The Seller shall have the right of stopping the Goods in transit whether or not delivery has been made.
(c) If the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods. If the Goods are wholly or partially attached to or incorporated in any other product or structure, the Seller or agent may (when practical) disconnect them in any way necessary to remove the Goods.
(d) The Buyer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller.
(e) The Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller.
(f) The Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
(g) The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
(h) The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
(i) Until such time that ownership in the Goods passes to the Buyer, if the Goods are so converted, the parties agree that the Seller will be the owner of the end products.
14 Person Property Security Interest
14.1 This clause 14 creates a purchase money security interest in the Goods, any goods in which the Goods are used as a component, and all proceeds from their respective resale by Buyer. The security interest is granted to secure Buyer’s proper performance of these terms and conditions and comes into effect when the Buyer takes possession of the Goods.
14.2 For the avoidance of doubt the Buyer acknowledges and agrees that it grants to the Seller a security interest in all goods supplied by the Seller to the Buyer whether now or in the future and in any proceeds from the sale of those goods.
14.3 The parties agree that pursuant to sections 115(1) and 115(7) of the PPSA the following sections of the PPSA will not apply to these Terms and any related Contract (to the extent permitted by law): Sections 95, 96, 117, 118, 121(4) 125, 127 129, 130, 132, 134(2) 135, 136(3), 136(4), 136(5), 137, 142 and 143.
14.4 For the purposes of section 14(6) of the PPSA the parties agree that any payments received by the Seller from the Buyer pursuant to or in any way connected with this Agreement will be applied in such order as the Seller deems fit in its absolute discretion.
14.5 Buyer consents and agrees that:
(a) It must sign all documents and take all steps as the Seller may reasonably require in connection with the registration, perfection and enforcement of this purchase money security interest; and
(b) The security interest created by this agreement or any other document relating to the subject of this agreement may be registered with the relevant authority or public register; and
(c) the Seller is not obliged to give any notice or documents under the PPSA unless the relevant obligation cannot be excluded. Buyer waives its right to be provided with verification statements pursuant to section 157 of the PPSA.
15.1 The Seller may cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellation. If the cancellation of delivery of Goods is through no fault of the Buyer, the Seller will refund any Price or deposit paid by the Buyer for the Goods.
16.1 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.
16.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information about 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 following purposes:
(a) To assess an application by Buyer;
(b) To notify other credit providers of a default by the Buyer;
(c) To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and
(d) To assess the credit worthiness of Buyer and/or Guarantor/s.
16.3 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).
16.4 The Buyer agrees that personal information provided 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:
(a) provision of Services & Goods;
(b) marketing of Services and/or Goods by the Seller, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and
(e) enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Services and Goods.
16.5 The Seller may give information about the Buyer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Buyer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
17 Unpaid Seller’s Rights
17.1 Where the Buyer has left any item with Seller for repair, modification, exchange or for the Seller to perform any other Service in relation to the item and Seller has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Seller shall have:
(a) a lien on the item;
(b) the right to retain the item and withhold delivery for the Price while the Seller is in possession of them;
(c) a right of resale,
(d) the foregoing right of disposal,
provided that the lien of the Seller shall continue despite the commencement of proceedings or judgement for the Price having been obtained.
18.1 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.
18.2 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.
18.3 The Seller shall be under no liability whatever to the Buyer for any indirect 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.
18.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
18.5 The Buyer shall not set off against the Price amounts due from the Seller.
18.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
18.7 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 such terms and conditions, that change will take effect from the date on which the seller notifies the Buyer of such change.
18.8 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.
19 Building and Construction Industry Security of Payments Act 1999
19.1 At the Sellers sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
19.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.