Terms of service

PT Continental Carpets Pty Ltd - Terms of Trade 1 of 5
PT Continental Carpets Pty Ltd -
Terms of Trade (“Terms”)
1 Application of Terms
1.1 These Terms govern our supply of Goods and Services to
you, including supplies on a cash basis.
1.2 If you wish to negotiate these Terms with us then you should
respond to this document, marking up these Terms and
drawing those changes to our attention and obtain our
agreement in writing.
1.3 It is not our practice to otherwise review terms and conditions
on documents that you issue to us.
1.4 Unless we otherwise agree in writing, we do not accept, and
will not be bound by, any terms or conditions included in,
attached to, or referenced in, any other document you give to
us like a purchase order.
2 Quotations
2.1 Each quotation that we issue:
(a) is an estimate only;
(b) is not an offer or obligation to supply any Goods or to
perform any Services;
(c) is exclusive of GST;
(d) does not include:
(i) the costs of delivering Goods;
(ii) floor or wall preparation; and
(iii) the cost of clearing the floor areas where the
Services are to be provided (including, without
limitation, the cleaning, removal, and/or disposal
of existing floor finishes, or the removal of
furniture and/or other goods);
(e) remains valid for acceptance for a period of thirty (30)
days from the date of quotation, unless withdrawn by
us before a contract for supply is formed; and
(f) contains a price on the basis that all Services are
performed, and all Goods delivered, during our usual
business hours,
unless the quotation states otherwise.
2.2 Quotations provided orally are subject to written confirmation.
2.3 A quotation may include additional terms or conditions, which
will supplement these Terms.
2.4 Should you wish to have Services performed or Goods
delivered outside our usual business hours please let us
know as additional charges may apply.
3 Customer variations
3.1 Where you request or direct that any Goods and/or Services
be supplied that are not strictly in accordance with the
quotation or Order, then such Goods and/or Services shall
constitute a variation, unless otherwise agreed between the
parties.
3.2 You understand and agrees that:
(a) all variations must be agreed between the parties in
writing prior to the Goods and/or Services being
supplied; and
(b) all variations shall be, at our discretion, invoiced at the
rate(s) specified in the quotation, as specifically
quoted, or in accordance with our current prevailing
rates (as amended from time to time).
3.3 Notwithstanding clauses 3.1 and 3.2 and subject to any rights
you might have under any relevant legislation, we reserve the
right to vary the quoted price if:
(a) there is any movement in the cost of supplying the
Goods and/or Services specified in the Order
(including, without limitation, any actual increase in
the costs to us in manufacturing, procuring, or
transporting the Goods);
(b) where additional Services are required due to the
discovery of hidden or unforeseen problems
(including, without limitation, issues, faults and/or
problems identified upon further inspection) which
have been discovered following the commencement
of the Services;
(c) the Goods and/or Services specified in the Order are
varied from the Goods and/or Services specified in our
quotation; or
(d) otherwise as provided for in these terms and
conditions.
4 Formation of contract
4.1 We are not obliged to supply any Goods or provide Services
until after a contract for supply is formed.
4.2 A contract for supply is formed, and you have accepted these
Terms, when:
(a) you have placed an Order with us; and
(b) we have received any deposit we have required from
you in respect of the Order before progressing it; and
either we have:
(c) accepted your Order in writing; or
(d) supplied you with any Goods or performed any
Services following receipt of your Order.
4.3 If you revoke an Order:
(a) prior to the formation of a contract for supply then:
(i) we will refund you any deposit you have paid in
respect of that Order; and
(ii) you will not be required to pay any fee for the
cancellation of the Order; or alternatively
(b) after the formation of a contract for supply then unless
we are in breach of the contract for supply:
(i) you must pay all our reasonable costs associated
with fulfilment of your Order; and
(ii) we may apply any deposit you have paid towards
those costs.
5 Price
5.1 The price payable for the Goods or Services will be:
(a) the price agreed in writing; or alternatively
(b) the price by our prevailing price list/rates as when you
place your Order.
5.2 We may vary our price or rates by notice to you if you request:
(a) the Goods or Services be rendered outside our usual
business hours;
(b) different Goods or Services to be supplied to the
contract for supply; or
(c) that we delay provision of the Goods or Services for
sixty (60) days or more.
5.3 Where we vary the price or rates payable for the Goods or
Services pursuant to clause 5.2, we will notify you of the new
price/rates. Thereafter you may reject the new price/rates
within seven (7) days and terminate the contract for supply
without any cost or penalty to you, otherwise you agree that
the price/rates will apply to the contract.
6 Delivery and risk
6.1 Unless otherwise agreed, you are responsible and liable for
all reasonable charges and costs associated with delivery,
shipping, freight or other transport costs.
6.2 We will use reasonable endeavours to deliver the Goods at
the time and place agreed for delivery. You will make
arrangements necessary to take delivery of the Goods.
6.3 You acknowledge and agree that:
(a) unless the contract for supply expressly states
otherwise, time in respect of delivery is not of the
essence; and
(b) any timeframe or date for delivery is an estimate only
and is not a contractual commitment.
6.4 Risk of loss, damage, or deterioration to the Goods passes
to you, and delivery is deemed to occur, at the time:
(a) you or any third party on your behalf collect the Goods
from us;
(b) we or our nominated carrier deliver the Goods to the
delivery location stated in your Order (or to such other
location as agreed in writing); or
(c) your nominated carrier takes possession of the
Goods.
6.5 It is your responsibility to provide suitable, practical, and safe
means of access and egress to the place agreed for delivery.
If the site is deemed unsuitable or unsafe (at the delivery
driver’s sole discretion), then the delivery driver may:
(a) refuse to deliver the Goods and return the Goods to
the point of despatch (in which case an additional
delivery fee will apply to any subsequent delivery
attempt); or
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(b) deliver the Goods to the location nearest to the agreed
place for delivery where delivery can be safely
effected.
6.6 You agree to sign our delivery docket or consignment note or
that of our nominated carrier as confirmation that you have
received the Goods, and if appropriate, certify that you have
received the Goods in apparent good order and condition in
the quantity or volume you have ordered.
6.7 If you authorise us to deliver the Goods to an unattended
location or to leave them outside the agreed place for
delivery, we may deliver the Goods as requested at your risk.
6.8 If delivery or collection of the Goods is deferred:
(a) at your request; or
(b) due to you being unable or unwilling to accept delivery
of the Goods (other than as a result of the Goods
delivered not being in accordance with the contract for
supply);
in circumstances where:
(c) we are ready to deliver the Goods and a delivery date
has not been agreed; or
(d) the Goods are due to be delivered or collected on an
agreed delivery date,
then you will pay to us:
(e) reasonable daily storage charges (which will continue
to accrue until such time as the Goods are delivered
or collected); and
(f) any costs associated with us or our nominated carrier
attempting to re-deliver the Goods (where we or our
nominated carrier has previously attempted to deliver
the Goods).
6.9 You acknowledge and agree that we may deliver the Goods
in one or more lots and may invoice you for pro rata progress
in respect thereof.
7 Performance of Services
7.1 Where we have been engaged to perform Services, you must
ensure that Site amenities required by our Personnel,
including, but not limited to, water, electricity, and sanitary
accommodation (i.e. serviced toilet facilities) are provided for
our Personnel’s use (at no cost to us or our Personnel). If you
fail to make such amenities available to our Personnel, we
will be entitled to invoice you any additional costs incurred by
us in procuring or providing such amenities.
7.2 You must, prior to us commencing the Services:
(a) obtain, at your expense, all relevant Approvals;
(b) engage a licensed service locator to clearly mark the
location of all services above and below ground,
including drains, pipes, sewers, mains, and
telecommunications and electricity cables;
(c) restrict any animals and non-Personnel from
accessing the Site;
(d) provide us with such information and documentation
that we reasonably require to perform the
Services; and
(e) inform us of any special requirements pertaining to the
installation (such as Site-specific policies or safety
requirements).
7.3 You acknowledge and agree that:
(a) any estimate for performance or completion of the
Services provided by us is an estimate only and is not
a contractual commitment;
(b) unless specified by us in writing, we make no warranty
or representation that we will be capable of performing
or completing the Services within any timeframe
specified by you;
(c) you are not relieved from any obligation arising under
any contract of which these Terms form part by reason
of any delay in the performance or completion of the
Services; and
(d) we may suspend or cease performance of the
Services at any time by written notice to you if, in the
reasonable opinion of us or our Personnel, it would be
unsafe for any person to perform (or continue to
perform) the Services.
7.4 You must at all reasonable times during the performance of
the Services permit our Personnel to have free, clear, and
unrestricted access to the Site to enable us to fulfil our
obligations without unreasonable interruption, impediment,
delay, or obstruction.
7.5 If you make available access to the Site, you warrant that the
Site is safe and that it complies with all relevant work health
and safety laws and standards.
7.6 If free, clear, and unrestricted access to the Site is not
available to our Personnel in accordance with clause 7.5, or
if we determine the Site to be unsafe, we reserve the right to
suspend or cease the performance of the Services upon the
provision of notice to you.
7.7 You must notify us of any damage caused to the Site (or any
neighbouring real or personal property) by us or our
Personnel within seven (7) days of becoming aware of the
damage. To the extent permitted by law, we accept no liability
for any damage when we have not been notified within this
timeframe.
7.8 If we determine that our Personnel have caused any damage
to the Site, we will make every effort to repair the damage, in
which case we will:
(a) engage a third party to repair the damage;
(b) manage the insurance claim process through our
insurer (if applicable);
(c) manage the repair process; and
(d) assume the costs of the repairs.
7.9 You acknowledge and agree that you undertake to not
engage any third party to repair the damage (or any part of
the damage) without our prior written consent.
7.10 Should asbestos or any other contaminants be discovered at
the Site which pose (or may pose) a health risk to any person,
then we will be entitled to suspend performance of the
Services until such time as licensed contractors
commissioned by you have cleared all such contaminants
from the Site.
8 Payment terms
8.1 Unless you have a Credit Facility with us which is not in
default:
(a) deposits we have requested must be paid before we
commence providing Goods and Services;
(b) you must pay for all Goods before they are
despatched (in cash or cleared funds); and
(c) you must pay for all Services on a progressive hourly
basis as performed.
8.2 Payment may be made by cash, cheque, electronic funds
transfer, Visa, or Mastercard credit cards. We reserve the
right to change the payment methods that we accept at any
time.
8.3 We may charge a payment surcharge for applicable payment
transactions equal to our reasonable cost of acceptance.
8.4 You agree to pay GST on all taxable supplies upon us issuing
you a tax invoice relating to the taxable supply.
8.5 You agree to pay sums due to us free of any set off or
counterclaim and without deduction or withholding.
9 Claims
9.1 Clauses 9.2 to 9.4 only apply if the contract for supply is not
a Consumer Contract and not a Small Business Contract.
9.2 You must, within seven (7) days of the date of delivery:
(a) give us notice in writing, with particulars, of any Claim
that the Goods delivered are not in accordance with
the contract for supply (including any Claim for
shortfall, incorrect supply, or damage to
the Goods); and
(b) at our request, provide us with photographic evidence
(to our satisfaction) of any alleged damage to the
Goods.
9.3 You must notify us in writing of any Claim for non-delivery
within seven (7) days of the date of the invoice which relates
to the Goods the subject of your Claim.
9.4 If you fail to notify us in accordance with clause 9.2 and 9.3,
then, to the extent permitted by law, the Goods are deemed
to have been delivered in good condition and in accordance
with the contract for supply.
10 Returns
10.1 We will accept the return of any Goods if:
(a) the Goods supplied do not conform with the contract
for supply;
(b) the Goods are defective; or
(c) we are required by law to accept the return of the
Goods.
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10.2 At our discretion, we may accept the return of Goods if you
change your mind if:
(a) you agree to:
(i) pay a handling and administration charge of 10%
of the purchase price of the returned Goods; and
(ii) reimburse us for all costs we incur in connection
with the return of those Goods (except for Goods
we have incorrectly supplied or we agree are
defective);
(b) the Goods are in substantially the same condition to
the condition in which they were delivered; and
(c) the Goods were not specifically produced or procured
at your request.
10.3 You indemnify and release us from any damage that occurs
to any Goods in return transit. You should ensure that any
returned Goods are insured against such damage.
11 Retention of title
11.1 Until such time as you have made payment in full (in cash or
cleared funds) for any Goods we have supplied:
(a) title in the Goods does not pass to you and we retain
the legal and equitable title in the Goods;
(b) you will hold the Goods as fiduciary and bailee for us
and agree to store the Goods in such a manner as to
enable them to be readily identifiable as our property;
(c) you undertake to not mix the Goods with similar
goods;
(d) unless and until we notify you to the contrary, you will
be entitled to sell the Goods in the ordinary course of
your business (provided any such sale is at arm’s
length and on market terms) and will sell the Goods
as our agent and bailee; and
(e) you undertake to hold any proceeds derived from the
sale of the Goods on trust for us absolutely.
11.2 While title in the Goods remains with us, you permit us to
enter upon any premises you occupy (or any premises any
receiver, receiver and manager, administrator, liquidator, or
trustee in bankruptcy of yours occupies) as your invitee to
inspect the Goods and, when you are in default of payment
of any invoice, to repossess any Goods in your possession,
custody, or control.
11.3 Where we exercise our right of entry pursuant to clause 11.2,
you agree that us doing so will not give rise to any Claim for
trespass or similar action against us or our officers,
employees, and agents.
11.4 Where we have retaken Goods into our possession, we have
the right to sell or deal with those Goods, and, if necessary,
sell any Goods bearing your name or trade mark, and you
hereby grant us an irrevocable licence to do all things
necessary to sell those Goods.
11.5 For the removal of doubt, our interest under this clause 11
constitutes a purchase money security interest for the
purposes of the PPS Act.
12 Security interest
12.1 You must reimburse us for any costs we incur in registering
our interests on the Personal Property Securities Register
(including registration fees).
12.2 Unless you have obtained our prior written and fully informed
consent, you undertake not to:
(a) register a financing change statement in respect of a
security interest in our favour; or
(b) create, or purport to create, any security interest in the
Goods (or any proceeds derived from the sale of such
Goods), nor register, nor permit to be registered, a
financing statement or financing change statement in
relation to the Goods in favour of any third party.
12.3 You:
(a) waive your right to receive a copy of any verification
statement in accordance with section 157 of the PPS
Act; and
(b) agree that, to the extent permitted by the PPS Act:
(i) sections 95, 96, 117, 118, 120, 121(4), 123, 125,
126, 128, 129, 130, 132, 134, 135, 142, and 143
of the PPS Act do not apply and are hereby
contracted out of; and
(ii) you waive your right to receive notices under
sections 95, 118, 121(4), 127, 130, 132(3)(d), and
132(4) of the PPS Act.
12.4 We need not disclose information of the kind detailed in
section 275(1) of the PPS Act, unless required by law.
12.5 Where we have rights in addition to those under Part 4 of the
PPS Act, those rights continue to apply.
13 Particular Purpose
If you require any Goods for a particular purpose, you must
advise us of that purpose prior to placing your Order and
must obtain a written assurance from us that the Goods will
meet your requirements. If you do not advise us of your
requirements and we do not expressly warrant in writing that
the Goods will be fit for your particular purpose, then you
agree that you did not rely upon our skill or judgment in
relation to the suitability of the Goods for that purpose.
14 Default
14.1 Clauses 14.2 to 14.4 apply if you fail to pay sums to us when
they fall due.
14.2 We may charge you interest on the outstanding debt
(including any judgment debt) at the rate of 10% per annum.
14.3 We may suspend or cease the supply of any further Goods
or Services to you.
14.4 We may require pre-payment in full for any Goods or
Services which have not yet been supplied.
15 Indemnity
15.1 If you default in the performance or observance of your
obligations under any contract of which these Terms form
part, then:
(a) we will take steps to mitigate our loss and act
reasonably in relation to any default by you; and
(b) we will give you notice requesting payment for loss
and damage occasioned in respect of those events
and requesting that you remedy any breach within a
reasonable time; and
(c) if that demand is not met then you indemnify us in
respect of loss, damage, costs (including collection
costs, bank dishonour fees, and legal costs on an
indemnity basis) that we have suffered arising
therefrom.
15.2 Your liability to indemnify us will be reduced proportionally to
the extent that any fraud, negligence, or wilful misconduct by
us or a breach of our obligations under contract has
contributed to the Claim, loss, damage, or cost which is the
subject of the indemnity.
15.3 Your liability to indemnify us is a continuing obligation
separate and independent from your other obligations and
survives the termination or performance of any contract of
which these Terms form part.
16 Limitation of liability
16.1 No party is liable to the other party for any Consequential
Loss, including under clause 15, however caused arising out
of or in connection with any contract for supply of which these
Terms form part.
16.2 While we will take reasonable endeavours to meet any
estimated delivery date or estimated time for Goods and
Services, you acknowledge and agree that we are not liable
for any delay associated with meeting those estimated
timeframes.
16.3 If the contract for supply is not a Consumer Contract or a
Small Business Contract then, to the extent permitted by law,
our liability is limited to:
(a) (in the case of a supply of Goods):
(i) us repairing or replacing the Goods; or
(ii) us paying you the cost of having the Goods
repaired or replaced.
(b) (in the case of a supply of Services):
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(i) us supplying the Services again; or
(ii) us paying you the cost of having equivalent
Services supplied.
17 Termination
A party may, with immediate effect, terminate any contract for
supply of which these Terms form part by notice in writing, if
the other party:
(a) commits a material or persistent breach of these
Terms and does not remedy that breach (if capable of
remedy) within seven (7) days of the receipt of a notice
(or such longer time as specified in the notice)
identifying the breach and requiring its remedy; or
(b) has failed to pay sums due to the party within seven
(7) days; or
(c) has indicated that it is, or may become, insolvent; or
(d) ceases to carry on business; or
(e) comprises an entity which is the subject of the
appointment of receivers or managers; or
(f) comprises a natural person who:
(i) has committed an act of bankruptcy; or
(ii) has been made bankrupt;
(g) comprises a corporation which:
(i) enters into voluntary administration;
(ii) is subject to a deed of company arrangement; or
(iii) is subject to the appointment of liquidators or
provisional liquidators.
18 Trustees
18.1 If you are the trustee of a trust (whether disclosed to us or
not), you warrant to us that:
(a) you enter into the contract for supply in both your
capacity as trustee and in your personal capacity;
(b) you have the right to be reasonably indemnified out of
trust assets;
(c) you have the power under the trust deed to enter into
the contract for supply; and
(d) you will not retire as trustee of the trust nor appoint
any new or additional trustee without first notifying us
in writing and having the new or additional trustee sign
an agreement on terms substantially the same as
those governing your Credit Facility (where
applicable).
18.2 You must give us a true and complete copy of the trust deed
upon request.
19 Variation
We may amend these Terms in the future by notifying you in
writing. The amended Terms will thereafter apply to each
Order you place unless you earlier give us written notice in
advance of placing a further Order.
20 Assignment
A party may only assign its rights under the contract for
supply with the written consent of the other party.
21 Subcontracting
21.1 You acknowledge that we may subcontract:
(a) the manufacturing and supply of any part of the Goods
to be supplied; and
(b) the Services we are to provide (or any part of those
Services),
however, doing so will not relieve us of any of our obligations
to you under any contract of which these Terms form part.
22 Conflicts and Inconsistencies
If there is any conflict or inconsistency between any of the
documents which together govern the relationship between
the parties, it is agreed the order of precedence will be
(highest to lowest):
(a) any additional terms or conditions contained in our
quotation applicable to the supply of Goods or
Services;
(b) any terms governing your Credit Facility; and
(c) these Terms.
23 Severance
If any part or term of our agreement with you (including any
Credit Facility) is illegal, invalid, or unenforceable, it will be
read down so far as necessary to give it a valid and
enforceable operation or, if that is not possible, it will be
severed from the contract and the remaining provisions will
not be affected, prejudiced, or impaired by such severance.
24 Governing law and jurisdiction
24.1 Our relationship is governed by and must be construed
according to the law applying in the State of Queensland.
24.2 The parties irrevocably submit to the non-exclusive
jurisdiction of the courts of the State of Queensland with
respect to any proceedings that may be brought at any time
relating to our relationship.
25 Definitions
In these Terms, unless the context otherwise requires, the following
definitions apply.
25.1 Approval means any authorisation, assessment,
accreditation, determination, registration, clearance, permit,
licence, consent, certificate, or other approval obtained or
required or applying in connection with any contract of which
these Terms form part.
25.2 Australian Consumer Law means Schedule 2 to the
Competition and Consumer Act 2010 (Cth), as amended.
25.3 Claim includes a claim, notice, demand, action, proceeding,
litigation, investigation, judgment, or award howsoever
arising, whether present, unascertained, immediate, future,
or contingent, whether based in contract, tort, pursuant to
statute or otherwise and whether involving a third party or a
party to a contract for supply.
25.4 Consequential Loss includes any:
(a) consequential loss;
(b) loss of anticipated or actual profits or revenue;
(c) loss of production or use;
(d) financial or holding costs;
(e) loss or failure to realise any anticipated savings;
(f) loss or denial of business or commercial opportunity;
(g) loss of or damage to goodwill, business reputation,
future reputation, or publicity;
(h) loss or corruption of data;
(i) downtime costs or wasted overheads; or
(j) special, punitive, or exemplary damages.
25.5 Consumer Contract has the meaning given to this term in
section 23(3) of the Australian Consumer Law.
25.6 Credit Facility means an account we have opened for you
on which we may, from time to time, extend you with
additional time to pay for our Goods and Services and
associated charges.
25.7 Customer, you means the person or other entity who has
placed an Order with us for the supply of Goods or Services
(or the person on whose behalf an Order is placed).
25.8 Goods means all goods supplied by us, as described on our
quotation, invoice, or any other form issued by us.
25.9 Order means a written or oral order placed by you requesting
that we provide Goods or Services.
25.10 Personnel means officers, employees, and agents engaged
by each party (but does not include the other party) and, in
the case of the Supplier, includes its subcontractors (and any
employee of those subcontractors).
25.11 PPS Act means the Personal Property Securities Act 2009
(Cth), as amended.
25.12 Services means all services performed by us, as described
on our quotation, invoice, or any other form issued by us (and
where the context so permits includes any supply or
installation of Goods).
25.13 Site means the location where the Services are to be
performed.
25.14 Small Business Contract has the meaning given to this
term in section 23(4) of the Australian Consumer Law.
25.15 Supplier, we, us means PT Continental Carpets Pty Ltd ACN
609 782 827 as trustee for the PT Continental Carpets Trust
ABN 67 278 826 232.
26 Interpretation
In these Terms, unless the context otherwise requires:
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26.1 A time is a reference to the time zone of Brisbane, Australia
unless otherwise specified.
26.2 $, dollar, or AUD is a reference to the lawful currency of
Australia.
26.3 A party includes a reference to that person’s executors,
administrators, successors, substitutes (including a person
who becomes a party by novation), assigns, and in the case
of a trustee, includes any substituted or additional trustee.
26.4 A right includes a benefit, remedy, authority, discretion, or
power.
26.5 The singular includes the plural and vice versa, and a gender
includes other genders.
26.6 “In writing” or “written” means any expression of information
in words, numbers, or other symbols, which can be read,
reproduced, and later communicated, and includes
electronically transmitted and stored information.
26.7 If a word or phrase is given a defined meaning, its other
grammatical forms have a corresponding meaning.
26.8 Words such as “includes”, “including”, and “for example” are
not words of limitation and are to be construed as though
followed by the words “without limitation”.
26.9 A term of an agreement in favour of two or more persons is
for the benefit of them jointly and each of them separately.