1. Definitions
1.1 “Auswest” means Auswest Coatings Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Auswest Coatings Pty Ltd.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by Auswest to the Client at the Client’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 Auswest and the Client in accordance with clause 4 below.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with Auswest’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Auswest.
3. Change in Control
3.1 The Client shall give Auswest not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Auswest as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At Auswest’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Auswest to the Client; or
(b) Auswest’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 Auswest reserves the right to change the Price if a variation to Auswest’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation due to hidden or unidentifiable difficulties not evident prior to the commencement of the Services or as a result of increases to Auswest in the cost of Goods and labour) will be charged for on the basis of Auswest’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 Auswest’s sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Auswest, which may be:
(a) on delivery of the Goods;
(b) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(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 seven (7) days following the date of any invoice given to the Client by Auswest.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking or by any other method as agreed to between the Client and Auswest.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Auswest an amount equal to any GST Auswest must pay for any supply by Auswest under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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 Client or the Client’s nominated carrier takes possession of the Goods at Auswest’s address; or
(b) Auswest (or Auswest’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.2 At Auswest’s sole discretion the cost of delivery is included in the Price.
5.3 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Auswest shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 Auswest 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 Auswest to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Auswest will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6. Access
6.1 The Client shall ensure that Auswest has clear and free access to the work site at all times to enable them to deliver the Goods. Auswest shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Auswest.
7. Underground Locations
7.1 Prior to Auswest commencing any work the Client must advise Auswest of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
7.2 Whilst Auswest will take all care to avoid damage to any underground services the Client agrees to indemnify Auswest in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 7.1.
8. Risk
8.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Auswest is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Auswest is sufficient evidence of Auswest’s rights to receive the insurance proceeds without the need for any person dealing with Auswest to make further enquiries.
8.3 If the Client requests Auswest to leave Goods outside Auswest’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
8.4 The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Auswest 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.
8.5 Where Auswest gives advice, recommendations, information, assistance or service to the Client or the Client’s agent regarding the Goods or Services, then it is given in good faith and Auswest shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Client relying on the same.
9. Title
9.1 Auswest and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Auswest all amounts owing to Auswest; and
(b) the Client has met all of its other obligations to Auswest.
9.2 Receipt by Auswest 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.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Goods and must return the Goods to Auswest on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Auswest and must pay to Auswest the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Auswest and must pay or deliver the proceeds to Auswest on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Auswest and must sell, dispose of or return the resulting product to Auswest as it so directs.
(e) the Client irrevocably authorises Auswest to enter any premises where Auswest believes the Goods are kept and recover possession of the Goods.
(f) Auswest may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Auswest.
(h) Auswest may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Auswest to the Client.
10.3 The Client 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 Auswest may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, Auswest 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 Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Auswest;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Auswest;
(e) immediately advise Auswest of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.4 Auswest and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by Auswest, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client must unconditionally ratify any actions taken by Auswest under clauses 10.3 to 10.5.
10.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
11. Security and Charge
11.1 In consideration of Auswest agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Client indemnifies Auswest from and against all Auswest’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Auswest’s rights under this clause.
11.3 The Client irrevocably appoints Auswest and each director of Auswest as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify Auswest in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Auswest 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 Auswest 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, Auswest makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Auswest’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, Auswest’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If Auswest is required to replace the Goods under this clause or the CCA, but is unable to do so, Auswest may refund any money the Client has paid for the Goods.
12.7 If the Client is not a consumer within the meaning of the CCA, Auswest’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 Client by Auswest at Auswest’s sole discretion;
(b) limited to any warranty to which Auswest is entitled, if Auswest did not manufacture the Goods;
(c) otherwise negated absolutely.
12.8 Subject to this clause 12, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 12.1; and
(b) Auswest has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’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 12.1 to 12.8 but subject to the CCA, Auswest 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 Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client 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 Client failing to follow any instructions or guidelines provided by Auswest;
(e) fair wear and tear, any accident, or act of God.
12.10 Notwithstanding anything contained in this clause if Auswest is required by a law to accept a return then Auswest will only accept a return on the conditions imposed by that law.
13. Default and Consequences of Default
13.1 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 Auswest’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Client owes Auswest any money the Client shall indemnify Auswest from and against all costs and disbursements incurred by Auswest in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Auswest’s collection agency costs, and bank dishonour fees).
13.3 Without prejudice to any other remedies Auswest may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Auswest may suspend or terminate the supply of Goods to the Client. Auswest will not be liable to the Client for any loss or damage the Client suffers because Auswest has exercised its rights under this clause.
13.4 Without prejudice to Auswest’s other remedies at law Auswest shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Auswest shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Auswest becomes overdue, or in Auswest’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client 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 Client or any asset of the Client.
14. Cancellation
14.1 Auswest 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 Client. On giving such notice Auswest shall repay to the Client any money paid by the Client for the Goods. Auswest shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Auswest as a direct result of the cancellation (including, but not limited to, any loss of profits).
14.3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
15. Privacy Act 1988
15.1 The Client agrees for Auswest to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Auswest.
15.2 The Client agrees that Auswest may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
15.3 The Client consents to Auswest being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Auswest for the following purposes (and for other purposes as shall be agreed between the Client and Auswest or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Auswest, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
15.5 Auswest may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Auswest is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Auswest, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by Auswest has been paid or otherwise discharged.
16. Dispute Resolution
16.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
17. Compliance with Laws
17.1 The Client and Auswest shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
17.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
17.3 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
18. Construction Contracts Act 2004
18.1 At Auswest’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Construction Contracts Act 2004 may apply.
18.2 Nothing in this agreement is intended to have the affect of contracting out of any provisions of the Construction Contracts Act 2004 of Western Australia, except to the extent permitted by the Act where applicable.
19. General
19.1 The failure by Auswest to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Auswest’s right to subsequently enforce that provision. 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.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which Auswest has its principal place of business, and are subject to the jurisdiction of the courts in that state.
19.3 Subject to clause 12 Auswest shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Auswest of these terms and conditions (alternatively Auswest’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
19.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Auswest nor to withhold payment of any invoice because part of that invoice is in dispute.
19.5 Auswest may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.6 The Client agrees that Auswest may amend these terms and conditions at any time. If Auswest makes a change to these terms and conditions, then that change will take effect from the date on which Auswest notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Auswest to provide Goods to the Client.
19.7 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.
19.8 The Client 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.
