DAMAD (VIC) PTY LTD (ACN 119 360 744) (“Supplier”) trading as: All Storage Systems of 29 Drummond Road, Shepparton, Victoria 3632; and All Sheds of 29 Drummond Road, Shepparton, Victoria 3632; and Seats Plus of 29 Drummond Road, Shepparton, Victoria 3632.
1. TERMS & CONDITIONS OF TRADE
The following Terms and Conditions apply to any and all dealings with the Supplier. These Terms and Conditions are subject to change at any time at the sole discretion of the Supplier. Any changes to these Terms and Conditions will take effect from the date on which they are notified to the Customer and will apply to all Orders occurring after notification.
2.1 In these Terms and Conditions, unless the context otherwise requires:
“ACL” means the Australian Consumer Laws including but not limited to the Competition and Consumer Act 2010 (Cth).
“Collateral” shall have the meaning as defined in the Act.
“Commingled Goods” shall have the meaning as defined in the Act.
“Contract” means a contract between the Customer and the Supplier created in accordance with clause 3.
“Customer” means the person or body corporate designated on the Order to acquire Goods and/or Services from the Supplier, including the Customer’s employees, contractors, agents, officers, heirs, executors, assignees, trustees and where applicable any liquidator, receiver or administrator.
“Delivery Address” means the address notified by the Customer to the Supplier for the delivery of the Goods.
“Financing Change Statement” shall have the meaning as defined in the Act.
“Financing Statement” shall have the meaning as defined in the Act.
“Goods” means the shed and storage products and/or components provided by the Supplier
“GST” means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time.
“Guarantor” means the person(s), or entity, who agrees to be liable for the debts of the Customer.
”Indirect, Special or Consequential Loss or Damage” means: any loss of income profit or business of the Supplier; any loss of good will or reputation of the Supplier; and any loss of value of intellectual property of the Supplier.
”Invoices” means any invoices rendered by the Supplier for Goods supplied and/or Services rendered to the Customer.
“Order” means any request made by the Customer with the Supplier for the provision of Goods and/or Services.
“PMSI” means a purchase money security interest as defined in the Act.
“Premises” means the areas owned by the Customer or the areas of which the Customer is acting as an authorised agent on behalf of the owner.
“Price” means the amounts invoiced for Goods supplied and/or Services provided by the Supplier to the Customer
“Quotation” means any verbal or written estimate given by the Supplier to the Customer in relation to the Price for the supply of Goods or provision of Services.
“Security Agreement” shall have the meaning as defined in the Act.
“Security Interest” shall have the meaning as defined in the Act.
“Services” means the delivery and/or supply of Goods, hire of Goods, installation, erection and repairs done by the Supplier, including any advice or recommendations.
“Supplier” means Damad (VIC) Pty Ltd (ABN 50291732161) trading as:
All Storage Systems of 29 Drummond Road, Shepparton, Victoria 3632; and All Sheds of 29 Drummond Road, Shepparton, Victoria 3632. Seats Plus of 29 Drummond Road, Shepparton, Victoria 3632.
“Supplier’s Credit Application Form” means the form provided to the Customer headed “Supplier Credit Application Form”
“Terms and Conditions” means these terms and conditions as amended from time to time.
“the Act” means the Personal Property Securities Act 2009 (Cth).
3.1 These Terms and Conditions form the entire agreement between the parties.
3.2 Any Order requested by the Customer is deemed to be an Order incorporating these Terms and Conditions.
3.3 The parties agree that in the event of an inconsistency between these Terms and Conditions and an Order, these Terms and Conditions prevail, unless expressly agreed otherwise by the Supplier in writing.
3.4 These Terms and Conditions are binding on the Customer.
3.5 In these Terms and Conditions, the singular shall include the plural, the masculine shall include feminine and neuter and words importing persons shall apply to corporations.
3.6 Where more than one Customer completes this Agreement each shall be liable jointly and severally.
3.7 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 and the offending provision shall be deemed as severed from these Terms and Conditions.
3.8 The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent but the Supplier acknowledges that it remains at all times liable to the Customer.
3.9 The failure by the Supplier to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision.
3.10 The Customer acknoweledges that the Supplier may use these Terms and Conditions on its website and that it may provide notice to the Customer of any amendments. In this event, the Terms and Conditions on the Supplier’s website shall apply to any dealings as between the parties and the Customer is deemed to have notice of any such Terms and Conditions and/or amendments.
3.11 These Terms and Conditions must be read in conjunction with the Supplier’s Credit Application Form and / or Quotation (if any)
4. CREATION OF CONTRACT
4.1 Any pricelists or quotations given by the Supplier to the Customer are only an invitation to the Customer to place an Order.
4.2 Any quotation given by the Supplier shall expire thirty (30) days from the date the quotation is provided to the Customer.
4.3 Each Order will constitute an offer by the Customer to acquire Goods and/or Services from the Supplier upon and subject to these Terms and Conditions.
4.4 A Contract will be made between the Supplier and the Customer for the sale and purchase of Goods and/or Services only if an Order has been made and that Order has been accepted by the Supplier.
4.5 An Order may be accepted by the Supplier verbally, in writing or implied.
4.6 The Supplier has absolute discretion to refuse, postpone or cancel any Order made by a Customer.
4.7 Once a Contract has been made, it cannot subsequently be cancelled or varied unless mutually agreed in writing between the parties.
4.8 Any variations to the Order requested by the Customer must be made in writing and within three (3) days of the Order being accepted.
4.9 The Supplier reserves the right in its absolute discretion to increase the price to account for the variation to the Order.
4.10 In the event that an Order is cancelled by the Supplier at the request of the Customer, the Supplier reserves the right, in its absolute discretion, to charge an administration fee to cover its expenses incurred in connection with the Order.
5. PRICE AND/OR RENT
5.1 All prices quoted for the supply of Goods and Services are subject to / Inclusive of GST and based on taxes and statutory charges current at the time of the quotation. Should these vary during the period from the date of the quotation to the date of the invoice, the difference will become the responsibility of the Customer and the Customer will be invoiced for the extra charge by the Supplier.
5.2 Prices for Goods and/or Services are set by the Supplier and are subject to change from time to time.
6. SUPPLY AND DELIVERY OF GOODS AND PROVISION OF SERVICES
6.1 The Customer must nominate a Delivery Address to the Supplier at the time of making the Order.
6.2 The Supplier reserves their right to decline any requests for Goods or Services and cancel or postpone the delivery of Goods and/ or Services at their discretion.
6.3 Delivery of the Goods and/or provision of Services shall be deemed to be complete when the Goods are collected by the Customer or are delivered to the Customer or to the Delivery Address; or the provision of the Services has been completed in accordance with the Order.
6.4 If the Customer fails to make all arrangements necessary to take delivery of the Goods, the Customer shall, at the discretion of the Supplier, be liable for a $33.00 non delivery fee and the Supplier shall be entitled, also at its discretion, to charge a reasonable fee for the redelivery and storage of the Goods.
6.5 Unless specified by the Supplier to the contrary in the Order, the Supplier does not warrant that it will be capable of providing the Goods and/or Services at specific times requested by the Customer.
6.6 In the event that the Goods, namely Colourbond is ordered, and the Colourbond sustains defects, namely
scratches while in transit, the Supplier shall use touch up paint to repair the defects.
7. GOODS ON HIRE
7.1 The Customer must return the Goods to the Supplier within the agreed and/or stipulated rental period in an undamaged condition and, as far as practicable in the same condition in which the Goods were received by the Customer subject only to damage from normal fair wear and tear.
7.2 The Customer acknowledges that all Goods are to remain the property of the Supplier at all times. The Supplier is the owner of the Goods and has provided the Customer the contractual license to use the Goods.
7.3 The Supplier accepts that the Goods must not be otherwise sold in whole or in part for commercial gain.
7.4 The Customer will be responsible for the care, security and storage for Goods on hire.
7.5 The Customer acknowledges that it has no property or interest in the Goods or any part thereof and agrees that it will not make any alterations or additions to the Goods without obtaining the written consent of the Supplier. Any additions or alterations made to the Goods whether by replacement, substitution or otherwise shall form part of the Goods and shall be subject to these Terms and Conditions.
7.6 The Customer shall not remove, obscure or deface any identifying mark, label or device on the Goods or any part thereof.
7.7 The Customer shall take all reasonable and proper care of the Goods whilst in his possession and indemnify the Supplier against any loss and damage to the Goods.
7.8 Notwithstanding the provisions above the Supplier shall be entitled to maintain an action against the Customer for the full retail replacement price for Goods which are damaged, altered or stolen whilst in the Customer’s custody, control, care or storage as a liquidated demand.
7.9 The Customer acknowledges that it shall use the Goods hired only for the purpose intended and in accordance with the instructions provided.
7.10 The Customer shall ensure that the Goods are operated in a skilful and proper manner
and by a person who is competent to operate the same.
7.11 The Customer releases and indemnifies the Supplier from any claim, demand, action, loss, damage, injury or loss of life caused or contributed to by the hired Goods as a result of their negligent use or misuse by the Customer.
8.1 The Customer shall, where relevant, ensure that the Supplier has full and safe access to the Delivery Address and any necessary equipment, material and information.
8.2 Additional charges will apply if the Supplier’s work is interfered with or no proper or safe access to the Delivery Address is provided by the Customer.
9. PAYMENT AND CREDIT POLICY
9.1 For credit purposes, the main groups of Customers are All Shed Customers, All Storage Customers and Seats Plus Customers.
9.2 All Storage Customers must make full payment of the price within seven (7) days from the date of the invoice(s)
9.3 All Shed Customers with Orders for the supply and delivery of the Goods only, must make payment to the Supplier in the following two (2) payment instalment orders:
(a) The Customer must pay the first instalment in the form of a ten percent (10%) non-refundable deposit of the Price upon acceptance of the quote by the Supplier and before delivery of the Goods to the Customer;
(b) The Customer must make the second and final instalment upon delivery of the Goods.
9.4 All Shed Customers with Orders for the supply, delivery of the Goods and provision of Services, namely erection of the Goods, must make payment to the Supplier in the following payment instalment orders at the sole discretion of the Supplier:
(a) The Customer must pay the first instalment in the form of a ten percent (10%) non-refundable
deposit of the Price upon acceptance of the Quote by the Supplier and before delivery of the Goods and commencement of Services.
(b) The Customer must pay the second instalment upon delivery of the Goods, namely kit materials to the Customer’s premises.
(c) The Customer must pay the third and/or final instalment upon the erection of the Goods at the Customer’s premises.
(d) If the Customer has requested for additional Services, including concrete floor slabs, the Customer must pay the fourth and final instalment upon completion of the additional Services, including the concrete floor slab.
(e) All Shed Customers with Orders for Goods, namely garden sheds, and/or Services relating to the erection of garden sheds must make full payment to the Supplier within seven (7) days of the invoice and before delivery of the Goods to the Customer.
10.1 Credit will only be granted at the sole discretion of the Supplier and upon submission of a completed Credit Application Form in the form required by the Supplier.
10.2 Any credit granted may be revised by the Supplier at any time and at its discretion.
10.3 The Supplier reserves the right to withdraw any credit facility upon any breach by the Customer of these Terms of Conditions or upon the Customer ceasing to trade and/or being subject to any legal proceedings and/or the Customer committing an act of insolvency
10.4 The Customer agrees that upon such withdrawal, any and all monies owing on the account shall become immediately due and payable.
11. DISHONOUR OF CHEQUE
11.1 If any cheque issued by the Customer or by any third party in payment of the Price is dishonoured:
(a) The Supplier may refuse to supply any further Goods until satisfactory payment is received in full, including bank fees and charges;
(b) The Supplier is entitled to treat the dishonour of the Customer’s cheque as a repudiation of these Terms and Conditions and to elect between terminating the Contract and affirming the Order and in each case claiming and recovering compensation for loss or damage suffered from the Customer.
(c) The Customer may be liable for a dishonoured cheque fee of $40.00 at the absolute discretion of the Supplier.
12.1 Invoices issued by the Supplier shall be due and payable upon the provision of the Goods and/or completion of Service for non-account customers, within seven (7) days from the date on the invoices (“Default Date”). Without prejudice to any other rights of the Supplier, the Customer may be charged an account keeping fee of $25.00 monthly on any payment in arrears.
12.2 If the Supplier does not receive payment in full for the Goods or Services on or before the Default Date, the Supplier may, without prejudice to any other remedy it may have, cease its services to the Customer and / or forward the Customer’s outstanding account to a debt collection agency for further action. The Customer acknowledges and agrees that:
(a) After the Default Date, the outstanding balance shall include, but not limited to, all applicable fees and charges under these Terms and Conditions;
(b) The Supplier may, in its discretion, calculate interest at the rate of two percent (2%) higher than the rate being fixed from time to time under Section 2 of the Penalty Interest Rates Act 1983 (Vic) for all monies due by the Customer to the Supplier.
(c) In the event of the Customer being in default of the obligation to pay and the overdue account is then referred to a debt collection and/or law firm for collection and the agency charges commission on a contingency basis the Customer
shall be liable to pay as a liquidated debt, the commission payable by the Supplier to the agency, fixed at the rate charged by the agency from time to time as if the agency has achieved one hundred per cent recovery and the following formula shall apply:
Added Commission = Original Debt x 100 [100 – Commission % charged by the agency (including GST)]
(d) In the event the agency is Prushka Fast Debt Recovery the applicable commission rate for the amount unpaid is as detailed on www.prushka.com.au.
(e) In the event where the Supplier or the Supplier’s agency refers the overdue account to a lawyer the Customer shall also pay as a liquidated debt the charges reasonably made or claimed by the lawyer on an indemnity basis.
13.1 If the Customer shall be or include a company, the Customer will forthwith upon execution of these Terms and Conditions procure the execution by each of its directors of a guarantee in the form of the guarantee annexed hereto.
14. RISK AND LIABILITY
14.1 The Supplier takes no responsibility for any specifications provided by the Customer. If such specifications are wrong or inaccurate the Customer will be liable for the expenses incurred by the Supplier for any work required to rectify the Order.
14.2 The Customer is responsible for ensuring that the Supplier is made aware of any special requirements pertaining to the Order and that the Supplier relies upon the integrity of the information supplied to it.
14.3 The Supplier takes no responsibility and will not be liable for any damages or costs resulting in the Goods being faulty as a consequence of insufficient information provided by the Customer.
14.4 The Supplier takes no responsibility and will not be liable for any deterioration or discolouration of the Goods as a consequence of the Customer failing and/or neglecting to keep the Goods safe from extreme weather conditions.
14.5 The Customer acknowledges that the Supplier shall not be liable for and the Customer releases the Supplier from;
(a) Any claims in respect of faulty or defective design of any Goods supplied.
(b) Physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of supply, layout, assembly, installation or operation of the Goods.
14.6 Except as provided in these Terms and Conditions and unless prohibited by the ACL all express and implied warranties, guarantees and conditions under statute or general law as to merchantable quality, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded.
14.7 The Supplier does not represent that it will provide and / or deliver any Goods unless it is included in the Quote.
15.1 The Supplier warrants that the rights and remedies to the Customer in these Terms and Conditions for warranty against defects are in addition to other rights and remedies of the Customer under any applicable Law in relation to the Goods and Services to which the warranty relates.
16. WARRANTY FOR SERVICES
16.1 The Supplier warrants that if any defect in any Service provided by the Supplier becomes apparent and is reported to the Supplier within seven (7) days of the provision of the Services (time being of the essence) then the Supplier will (at the Supplier’s sole discretion) remedy the defective Service.
16.2 If any Services provided by the Supplier are repaired, altered or overhauled by the Customer or caused to be repaired, altered or overhauled by the Customer without the Supplier’s consent, the warranty shall cease and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty.
16.3 In respect of all claims the Supplier shall not be liable to compensate the Customer for any delay in remedying the defective Services or in properly assessing the Customer’s claim. The Supplier will use its best endeavours to assist the Customer with its claim.
16.4 To the extent permitted by law, damages for breaches of warranties for Services are limited to the supply of the Service or the repayment of costs for having the Services rectified and or refund of price paid by the Customer.
17. WARRANTY FOR GOODS
17.1 The Supplier warrants that if any defect in any Goods provided by the Supplier becomes apparent and is reported to the Supplier within seven (7) days of the supply of the Goods (time being of the essence) then the Supplier will (at the Supplier’s sole discretion) remedy the defective Goods.
17.2 The warranty for Goods supplied shall be the current warranty provided by the manufacturer of the Goods. The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods. The Supplier will use its best endeavours to assist the Customer with any claim with respect to the Goods.
17.3 The Customer acknowledges that additional costs incurred, such as labour and/or freight, must be borne by the Customer.
18. CLAIMS MADE UNDER WARRANTY
18.1 Subject to clause 16.1and 17.1of these Terms and Conditions claims for warranty should be made as follows:
(a) The Customer must send the claim in writing together with proof of purchase to the Supplier’.
(b) The Customer must contact the Supplier on 03 5822 2133.
(c) Goods where a claim is made are to be returned to the Supplier or are to be left in the state and conditions in which they were delivered until such time as the Supplier has inspected the Goods. Such inspection is to be carried out within a reasonable time after notification.
19. RETENTION OF TITLE
19.1 While the risk in Goods shall pass on delivery and/or supply (including all risks associated with unloading), legal and equitable title in the Goods shall remain with the Supplier until full payment of all Goods supplied by the Supplier to the Customer is made. Pending such payment the Customer:
(a) Shall hold the Goods as Bailee for the Supplier and shall return the Goods to the Supplier if so requested.
(b) Agrees to hold the Goods at the Customer’s own risk and is liable to compensate the Supplier for all loss or damage sustained to the Good whilst they are in the Customer’s possession.
(c) The Customer should store the Goods separately and in such a manner that it is clearly identified as the property of the Supplier and keep the Goods insured to full replacement value.
(d) The Customer must not allow any person to have or acquire a Security Interest in the Goods whilst the Goods are in the Customer’s possession or control.
(e) If the Goods are sold by the Customer before all monies are paid to the Supplier, the Customer shall hold the proceeds of sale in a separate identifiable account on trust for the Supplier and promptly account the Supplier for those proceeds in payment of the Price for the Goods.
19.2 The Supplier is authorised to enter Premises or the premises where the Customer stores the Goods without liability for trespass or any resulting damage in retaking possession of the Goods until the accounts owed to the Supplier by the Customer are fully paid.
19.3 Notwithstanding the above, the Supplier shall be entitled to issue legal proceedings to recover the Price of the Goods.
20. TERMINATION AND CANCELLATION
Cancellation by Supplier
20.1 The Supplier may cancel any Order to which these Terms and Conditions apply or cancel delivery of Goods at any time before the Goods are delivered provided by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any sums paid in respect of the Price. The Supplier shall not be liable for any loss or damage or consequential loss or damage whatsoever arising from such cancellation.
20.2 Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:
(a) Any money payable to the Supplier becomes overdue; or
(b) The Customer becomes insolvent, convenes a meeting with its creditors or porposes to 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, or any judgement is taken out against the Customer remains unpaid for more than seven (7) days.
Cancellation by Customer
20.3 Any Order cannot be cancelled by the Customer unless expressly agreed to by the Supplier in writing.
20.4 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Supplier (including, but not limited to, any loss of profits) up to the time of cancellation.
20.5 If the Customer places an Order with the Supplier and the Supplier places an Order with a third party Supplier to meet the Customer’s request, the Customer shall be liable for the Price of the Goods ordered if the Customer cancels the Order and the Goods have already been dispatched.
Limitation of damage
20.6 The Customer acknowledges that in the event of any breach of this Agreement / Order by the Supplier including indirect, special or consequential loss, the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price.
21. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH)(“PPSA”)
21.1 The Customer acknowledges that these Terms and Conditions will constitute a Security Agreement which creates a Security Interest in favour of the Supplier over all present and after acquired property of the Customer secure the payment of the Price or any other amount owing under these Terms and Conditions from time to time including future advances.
21.2 The Customer acknowledges that the Security Interest created by this clause shall be a PMSI
21.3 The Supplier may register its Security Interest as a PMSI on the Personal Property Securities Register (“PPSR”) pursuant to the Act without providing further notice to the Customer.
21.4 The Customer agrees and undertakes:
(a) to sign any documents and/or provide further information reasonably required by the Supplier to register a Financing Statement or Financing Change Statement on the PPSR;
(b) to indemnify the Supplier for all expenses and/or costs incurred by the Supplier in registering a Financing Statement or Financing Change Statement on PPSR including the cost of amending, maintaining, releasing and enforcing any security interests in the Goods;
(c) not to register and/or make a demand to alter a Financing Statement without prior written consent of the Supplier;
(d) to provide the Supplier with 7 days written notice of any change or proposed change to the Customer’s business name, address, contact details or other changes in the Customer’s details registered on the PPSR;
(e) to waive any rights of enforcement under section 115 of the PPSA for Collateral not used predominantly for personal, domestic or household purposes;
(f) to waive any rights to receive a Verification Statement in respect of any Financial Statement or Financing Change Statement under section 157 of the Act.
22.1 The Customer shall have no right of set-off in any suit, claim or proceeding brought by the Supplier against the Customer for default in payment.
22.2 The Customer acknowledges that the Supplier can produce this clause in bar of any proceeding for set-off.
23.1 The Supplier is not liable to provide any insurance cover for the provision of the Goods and Services. The Customer must insure the Goods for full replacement value and note the interest of the Supplier on the policy.
24. AGREED USE
24.1 The Customer acknowledges that the Customer may forfeit any rights if any, he may have against the Supplier if the Goods are applied for any other use to which the Goods are not intended for and/or not in accordance with any applicable instructions.
24.2 The Customer further acknowledges sole responsibility for any damage or injury to property or person caused by using the Goods in any way, which the Customer may forfeit their rights against the Supplier.
24.3 The Customer acknowledges that they have not relied on any representation or warranty from the Supplier with respect to the merchantable quality, description, quality, suitability or fitness of the Goods.
25.1 The law of Victoria governs these Terms and Conditions and the parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia and of courts entitled to hear appeals from those courts.
26. PRIVACY ACT 1988
26.1 The Customer and/or the Guarantor/s agrees:
(a) For the Supplier 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 the Supplier.
(b) That the Supplier 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.
(c) The Customer consent to the Supplier being given a consumer credit report to collect overdue
payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
27. ENTIRE AGREEMENT
27.1 The Terms and Conditions set out in this Agreement constitute the whole Agreement made between the Customer and the Supplier.
27.2 This Agreement can only be amended in writing signed by each of the parties.
27.3 All prior discussions and negotiations are merged within this document and the Supplier expressly waives all prior representations made by him or on his behalf that are in conflict with any clauses in this document in any way.
27.4 Nothing in these Terms and Conditions is intended to have the effect of contravening any applicable provisions of the Competition and Consumer Act 2010 or the Fair Trading Acts in each of the States and Territories of Australia.