1.1 “AFD” shall mean All Flex Ducting Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of All Flex Ducting Pty Ltd.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by AFD to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by AFD to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by AFD to the Customer.
1.5 “Services” shall mean all Services supplied by AFD to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between AFD and the Customer in accordance with clause 4 of this contract.
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by AFD from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by AFD shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of AFD.
3.4 The Customer shall give AFD not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by AFD as a result of the Customer’s failure to comply with this clause.
3.5 Goods are supplied by AFD only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4.1 At AFD’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by AFD to the Customer in respect of Goods supplied; or
(b) AFD’s current Price at the date of delivery of the Goods according to AFD’s current Price list; or
(c) AFDs quoted Price (subject to clause 4.2) which shall be binding upon AFD provided that the Customer shall accept AFD’s quotation in writing within thirty (30) days.
4.2 AFD reserves the right to change the Price in the event of a variation to AFD’s quotation. Any variation from the specifications of the Goods (including, but not limited to, any variation as a result of increases to AFD in the cost of materials and labour or fluctuations in currency exchange rates) will be charged for on the basis of AFD’s quotation and will be shown as variations on the invoice.
4.3 At AFD’s sole discretion a deposit may be required.
4.4 At AFD’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Customers shall be made by instalments in accordance with AFD’s payment schedule.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days following the end of the month in which the invoice is dated.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, only Visa and Mastercard (plus a surcharge of up to three percent (3.0%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and AFD.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5.1 At AFD’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at AFD’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by AFD or AFD’s nominated carrier); or
(c) the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
5.2 At AFD’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Customer’s account.
5.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then AFD shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.5 AFD may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6 The failure of AFD to deliver shall not entitle either party to treat this contract as repudiated.
5.7 AFD shall not be liable for any loss or damage whatsoever due to failure by AFD to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of AFD.
6.1 AFD and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid AFD all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to AFD in respect of all contracts between AFD and the Customer.
6.2 Receipt by AFD 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 AFD’s ownership or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until AFD shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from AFD to the Customer AFD may give notice in writing to the Customer to return the Goods or any of them to AFD. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) AFD shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to AFD then AFD or AFD’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as AFD has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to AFD for the Goods, on trust for AFD; and
(f) the Customer shall not deal with the money of AFD in any way which may be adverse to AFD; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of AFD; and
(h) AFD can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that AFD will be the owner of the end products, unless they have become fixtures.
7.1 If AFD retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
7.2 Where the Customer expressly requests AFD to leave Goods outside AFD’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all.
7.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, AFD is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by AFD is sufficient evidence of AFD’s rights to receive the insurance proceeds without the need for any person dealing with AFD to make further enquiries.
8.1 The Customer shall inspect the Goods on delivery and shall within twenty-four (24) hours of delivery (time being of the essence) notify AFD of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford AFD an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. For Goods damaged by local freight (excluding containers), the Customer must provide AFD with a photograph of any damaged Goods prior to the pallet being unpacked. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which AFD has agreed in writing that the Customer is entitled to reject, AFD’s liability is limited to either (at AFD’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 8.1; and
(b) AFD has agreed in writing (“Returned Goods Authorisation”) to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within thirty (30) days from the issue date of the “Returned Goods Authorisation”; and
(d) the Goods must have the “Returned Goods Authorisation” prominently displayed on the largest package and the “Returned Goods Authorisation” number must be marked on any additional packages; and
(e) AFD will not be liable for Goods which have not been stored or used in a proper manner; and
(f) 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. AFD reserves the right to inspect all returned Goods and issue final determination as to the condition of the Goods prior to final credit being issued. Credit will not be issued for that portion of the Goods that is not considered resalable.
9.2 AFD may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return unless sent to the Customer as the result of an error at the factory.
10.1 To the extent permitted by statute, no warranty is given by AFD as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. AFD shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
11.1 Where AFD has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in AFD, and shall only be used by the Customer at AFD’s discretion.
11.2 The Customer warrants that all designs or instructions to AFD will not cause AFD to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify AFD against any action taken by a third party against AFD in respect of any such infringement.
11.3 Where AFD has designed or drawn Goods for the Customer then the Customer undertakes to acknowledge AFDs design or drawings in the event that images of the Goods are utilised in advertising or marketing material by the Customer.
11.4 The Customer hereby authorises AFD to utilise images of the Goods designed or drawn by AFD in advertising, marketing, or competition material by AFD.
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of one and one half percent (1.5%) per calendar month (and at AFD’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by AFD.
12.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify AFD from and against all costs and disbursements incurred by AFD in pursuing the debt including legal costs on a solicitor and own client basis and AFD’s collection agency costs.
12.4 Without prejudice to any other remedies AFD may have, if at any time the Customer is in breach of any obligation (including those relating to payment) AFD may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. AFD will not be liable to the Customer for any loss or damage the Customer suffers because AFD has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred and fifty dollars ($250.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.6 Without prejudice to AFD’s other remedies at law AFD shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to AFD shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to AFD becomes overdue, or in AFD’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer 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 Customer or any asset of the Customer.
13.1 Despite anything to the contrary contained herein or any other rights which AFD may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to AFD or AFD’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that AFD (or AFD’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should AFD elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify AFD from and against all AFD’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint AFD or AFD’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14.1 AFD 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 Customer. On giving such notice AFD shall repay to the Customer any sums paid in respect of the Price. AFD shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by AFD (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
15.1 The Customer and/or the Guarantor/s agree for AFD to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by AFD.
15.2 The Customer and/or the Guarantor/s agree that AFD may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.
15.3 The Customer consents to AFD being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Customer agrees that personal credit information provided may be used and retained by AFD for the following purposes and for other purposes as shall be agreed between the Customer and AFD or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by AFD, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
15.5 AFD may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
16.1 At AFD’s 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.
16.2 Nothing in this agreement is intended to have the affect 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.
17.1 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.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 AFD shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by AFD of these terms and conditions.
17.4 In the event of any breach of this contract by AFD the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by AFD nor to withhold payment of any invoice because part of that invoice is in dispute.
17.6 AFD may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
17.7 The Customer agrees that AFD may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which AFD notifies the Customer of such change.
17.8 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.
17.9 The failure by AFD to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect AFD’s right to subsequently enforce that provision.