TERMS AND CONDITIONS OF TRADE
1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “AMS” means Adelaide Marble Specialists Pty Ltd, its successors and assignsor any person acting on behalf of and with the authority of Adelaide Marble Specialists Pty Ltdand Ams Surfaces .
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting AMS to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by AMS 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).
1.5 “SA Standards” means the standard code for granite and marble stonework.
1.6 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.7 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including personal information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Goods via the website.
1.8 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between AMS and the Client in accordance with clause 6below.
1.9 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
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 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges and accepts that
(a) the supply of Goods on credit shall not take effect until the Client has completed a credit application with AMS and it has been approved with a credit limit established for the account; and
(b) in the event that the supply of Goods request exceeds the Clients credit limit and/or the account exceeds the payment terms, AMS reserves the right to refuse Delivery.
(c) the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, AMS reserves the right to vary the Price with alternative Goods as per clause 6.2, subject to prior confirmation and agreement of both parties. AMS also reserves the right to halt all Services until such time as AMS and the Client agree to such changes. AMS shall not be liable to the Client for any loss or damage the Client suffers due to AMS exercising its rights under this clause; and
(d) the Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
2.5 Any advice, recommendation, information, assistance or service provided by AMS in relation to Goods or Services supplied is given in good faith, is based on AMS’ own knowledge and experience and shall be accepted without liability on the part of AMS and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
2.6 .In the event that AMS is required to provide the Services urgently, that may require AMS’ staff to work outside normal business hours (including but not limited to working through lunch breaks, weekends and/or Public Holidays) then AMS reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between AMS and the Client.
2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (New South Wales & South Australia), the Electronic Transactions Act 2001 (Australian Capital Territory), the Electronic Transactions (Victoria) Act 2000, the Electronic Transactions (Northern Territory) Act 2000, Section 14 of the Electronic Transactions (Queensland) Act 2001, Section 7 of the Electronic Transactions Act 2000 (Tasmania), Section 10 of the Electronic Transactions Act 2011 (Western Australia), or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Authorised Representatives
3.1 Unless otherwise limited as per clause 3.2, the Client agrees that should the Client introduce any third party to AMS as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Works, and/or to request any variation thereto, on the Client’s behalf, and such authority to continue until all requested Works have been completed or the Client otherwise notifies AMS in writing that said person is no longer the Client’s duly authorised representative.
3.2 In the event that the Client’s duly authorised representative, as per clause 3.1, is to have only limited authority to act on the Client’s behalf, then the Client must specifically and clearly advise AMS in writing of the parameters of the limited authority granted to their representative.
3.3 The Client specifically acknowledges and accepts that they will be solely liable to AMS for all additional costs incurred by AMS (including AMS’ profit margin) in providing any Works, or variation/s thereto, requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 3.2(if any)).
4. Errors and Omissions
4.1 The Client acknowledges and accepts that AMS shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by AMS in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by AMS in respect of the Services.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of AMS; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
5. Change in Control
5.1 The Clientshall give AMS 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, change of trustees or business practice). The Client shall be liable for any loss incurred by AMS as a result of the Client’s failure to comply with this clause.
6. Price and Payment
6.1 At AMS’ sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by AMS to the Client; or
(b) the Price as at the date of delivery of the Goods according to AMS’ current price list; or
(c) AMS’ quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of six (6) months.
6.2 AMS reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled(including any applicable plans or specifications) is requested; or
(c) if during the course of the Services, the Goods are not or cease to be available from AMS’ third party suppliers, then AMS reserves the right to provide alternative Goods; or
(d) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, obscured building defects and inaccurate plans, etc.) which are only discovered on commencement of the Services; or
(e) in the event of increases to AMS in the cost of labour or Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to AMS in the cost of taxes, levies, freight and insurance charges, or delays in shipment etc.) which are beyond AMS’ control.
6.3 Variations will be charged for on the basis of AMS’ quotation, and will be detailed in writing, and shown as variations on AMS’ invoice. The Client shall be required to respond to any variation submitted by AMS within ten (10) working days. Failure to do so will entitle AMS to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.4 At AMS’ sole discretion, a deposit may be required.
6.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by AMS, which may be:
(a) on delivery of the Goods;
(b) five (5) days following completion of the Services;
(c) by way of instalments/progress payments in accordance with AMS’ payment schedule;
(d) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(e) either twenty-one (21) or thirty (30) days following the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by AMS.
6.6 AMS may in its discretion allocate any payment received from the Client towards any invoice that AMS determines and may do so at the time of receipt or at any time afterwards. On any default by the Client AMS may re-allocate any payments previously received and allocated. In the absence of any payment allocation by AMS, payment will be deemed to be allocated in such manner as preserves the maximum value of AMS’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.7 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and AMS.
6.8 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 AMS nor to withhold payment of any invoice because part of that invoice is in dispute.
6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to AMS an amount equal to any GST AMS must pay for any supply by AMS under this or any other contract 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.
7. Delivery of Goods
7.1 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 AMS’ address; or
(b) AMS (or AMS’ nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
7.2 Subject to clause 7.3it is AMS’ responsibility to ensure that the Services begin as soon as it is reasonably possible.
7.3 The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that AMS claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond AMS’ control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify AMS that the site is ready.
7.4 At AMS’ sole discretion, the cost of delivery is in addition to the Price.
7.5 AMS 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.
7.6 Any time specified by AMS for delivery of the Goods is an estimate only and AMS will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that AMS is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then AMS shall be entitled to charge a reasonable fee for redelivery and/or storage.
8. Testing and Reporting
8.1 Where the Client requires the Goods to be subjected to testing, the Client shall be responsible for all costs associated with the testing.
8.2 The Client shall notify AMS in writing of any inspectors and other persons required to enter AMS’ premises.
8.3 The Client will provide AMS with copies of all test results, measurements and reports prepared for the Client on AMS’ Goods.
9.1 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.
9.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, AMS is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by AMS is sufficient evidence of AMS’ rights to receive the insurance proceeds without the need for any person dealing with AMS to make further enquiries.
9.3 If the Client requests AMS to leave Goods outside AMS’ premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
9.4 Where AMS is required to install the Goods the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and AMS shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
9.5 AMS shall be entitled to rely on the accuracy of any plans, specifications (including, but not limited to, CAD drawings) and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, AMS accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
9.6 Where the Client has supplied materials for AMS to complete the Services that theyaccept responsibility for the suitability of purpose, quality and any faults inherent in the materials. AMS shall not be responsible for any defects in the Services, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Client; and
9.7 AMS is only responsible for Goods that are replaced by AMS, and in the event that other components subsequently fail, the Client agrees to indemnify AMS against any loss or damage to the Services, or caused by the components, or any partthereof howsoever arising.
9.8 AMS will not be liable for any loss, damages, costs or claims for any damage to the Goods (including, but not limited to, scratches, marks and cracks) after delivery of the Goods unless due to the negligence of AMS or AMS’ employees.
9.9 All descriptive specifications, illustrations, dimensions and weights stated in AMS’ or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by AMS.
9.10 The Client acknowledges and accepts that:
(a) Goods may be damaged as a result of systemic activity or exposure to extreme temperatures. AMS shall not be liable for any loss, damages, or costs howsoever resulting from the systemic activity or exposing the Goods to extreme temperatures; and
(b) AMS shall provide all Goods/Services to a reasonable quality and standard in accordance with the Standard Code for Granite and Marble Stonework. However, granite, marble, and engineered stone are based on natural products and have natural defects, variations in colour, shade, thickness, grain, purity and bowing and may have detached crystals and chipping that are inherent in all natural stone products. While every effort will be taken by AMS to match colour, shading or grain of product, AMS shall not be liable for any loss, damages or costs howsoever arising resulting from any natural defect or any variation in colour, shading or grain between batches of product or sale samples and the final product supplied; and
(c) stones are marketed as granite, marble, quartz, slate, limestone and/or other names. AMS does not imply Goods are one hundred percent (100%) of a particular said products but are all marketed under the commonly used name used within the stone industry globally; and
(d) whilst reconstituted quartz and engineered stone slabs are manmade products, these products will have similarities to natural stone as they consist of mainly of natual stone; and
(e) marble and granite are porous products, and therefore, Goods are not pre-sealed for protection. However, oil and other acidic substances are prone to causing discolouration and staining if left on surfaces for some time. Sealant will be provided to the Client on payment in full. The Client agrees to indemnify AMS against any damage occurring after delivery, installation of the Goods and application of the sealant; and
(f) the only polished surfaces shall only be all visible edges and one face. Where the Client requires additional polished surfaces, this shall be charged for as a variation; and
(g) any appliance (including, but not limited to basins, sinks and hotplates, etc.) using clips provided by the appliances manufacturers to affix to the Goods shall not be used. AMS will not be liable for any loss, costs or claims for defects where the Client goes against the advice of AMS; and
(h) laminated tops shall have thickness of either forty millimetres (40mm) or sixty millimetres (60mm) unless otherwise specified; and
(i) whilst AMS will take all due care to avoid contamination of the finished surface, AMS accepts no responsibility for contamination by natural contaminates such as dust or hair which may be present at the work site; and
(j) AMS will only inspect or view a tiled floor from a standing position, as this is generally how you will be living on it. Minor marks or slight imperfections in the floor finish that can only be viewed from a crouching or kneeling position will not be considered defects; and
(k) Goods supplied by AMS may:
(i) expand, contract or distort as a result of exposure to heat, cold, weather;
(ii) mark or stain if exposed to certain substances; and
(iii) be damaged or disfigured by impact or scratching.
9.11 AMS gives no guarantee (expressed or implied) against crazing, cracking, chipping or scratchingthat may occur that is beyond AMS’ control due to the nature of the product at the time of installation.
10. Benchtop Joints
10.1 The Client acknowledges and accepts that
(a) joints are placed at the discretion of AMS, taking into consideration the structural strength, size, weight and appearance of the Goods and site access. If the Client should go against the advice of AMS, AMS shall not be liable for any damage, loss, costs or claims as a result of such placements of the joints; and
(b) where the Client does not nominate specific joint placements, this shall be deemed acceptance of the Goods and the joint placements that are at the discretion of AMS; and
(c) joints may not match perfectly due to the nature of the Goods and gaps of between one and two-point-five millimetres (1-2.5mm) shall be deemed completed at an acceptable standard; and
(d) where the Client requests specific placement of joints this shall be confirmed in writing by the Client on completion of the templates and on inspection of the Goods at the manufacturer’s factory.
11.1 The Client shall be responsible for the installation of the Goods unless otherwise agreed in writing between the Client and AMS.
11.2 The Client acknowledges and accets that AMS will only install Goods manufactured AMS
11.3 Where the Client requires AMS to install the Goods and AMS is unable to, AMS shall endeavour to find a suitable installer of the Goods.
11.4 AMS will not be responsible for appliances attached to the Goods (including, but not limited to, sinks, hotplates, basins etc).
11.5 It is the intention of AMS, and agreed by the Client, that it is the responsibility of the Client to:
(a) be on site to approve checks and measurements and ensure all appliances are on site at time of installation. AMS will not be liable for any delays in installation or for any changes in dimension of the Goods once installation is completed due to the Client’s failure to comply with this clause; and
(b) where appliances and other fixtures are too low or uneven, such defects are required to be rectified before commencement of the installation; and
(c) seal the room, provide adequate dustsheets and/or remove any furniture, furnishings or personal goods from the vicinity of the Services as cutting of the Goods will be necessary on site. Cutting of manmade and engineered stones produce silica dust whish may be harmful with repeat exposure. AMS shall not be liable for any damage caused to those items or injury to persons through the Client’s failure to comply with this clause;
(d) be wholly responsible for the removal of rubbish from or clean-up of the worksite; and
(e) provide AMS with facilities, as specified by AMS, (including, but not limited to, a suitable free power source) for the duration of the Services.
11.6 The Client acknowledges and accepts that cutting of manmade and engineered stone will produce
11.7 AMS is not insured to remove furniture or fittings and will not do so, nor is AMS licensed to move gas or electrical appliances.
12.1 The Client shall ensure that AMS has clear and free access to the work site at all times to enable them to undertake the Services. AMS 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 AMS.
13. Hidden Locations
13.1 Prior to AMS commencing the Services the Client must advise AMS of the precise location of all services on the site and clearly mark the same. The mains and 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 the site.
13.2 Whilst AMS will take all care to avoid damage to any hidden services, the Client agrees to indemnify AMS 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 13.1.
14. Compliance with Laws
14.1 The Client and AMS 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.
14.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
14.3 The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation including regulations governing exposure to toxic dust.
15.1 AMS and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid AMS all amounts owing to AMS; and
(b) the Client has met all of its other obligations to AMS.
15.2 Receipt by AMS 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.
15.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 15.1:
(a) the Client is only a bailee of the Goods and must return the Goods to AMS on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for AMS and must pay to AMS 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 AMS and must pay or deliver the proceeds to AMS 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 AMS and must sell, dispose of or return the resulting product to AMS as it so directs;
(e) the Client irrevocably authorises AMS to enter any premises where AMS believes the Goods are kept and recover possession of the Goods;
(f) AMS 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 AMS;
(h) AMS may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
16. Personal Property Securities Act 2009 (“PPSA”)
16.1 In this clausefinancing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
16.2 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 and/or collateral (account) – being a monetary obligation of the Client to AMS for Services – that have previously been supplied and that will be supplied in the future by AMS to the Client.
16.3 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 AMS 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 16.3(a)(i)or 16.3(a)(ii);
(b) indemnify, and upon demand reimburse, AMS 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 AMS;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of AMS;
(e) immediately advise AMS 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.
16.4 AMS 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.
16.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
16.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
16.7 Unless otherwise agreed to in writing by AMS, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
16.8 The Client must unconditionally ratify any actions taken by AMS under clauses 16.3to 16.5.
16.9 Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
17. Security and Charge
17.1 In consideration of AMS 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).
17.2 The Client indemnifies AMS from and against all AMS’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising AMS’ rights under this clause.
17.3 The Client irrevocably appoints AMS and each director of AMS as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17including, but not limited to, signing any document on the Client’s behalf.
18. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
18.1 The Client must inspect the Goods immediately on delivery and must within twenty-four (24) hours following an unattended delivery or forty-eight (48) hours of attended delivery and installation notify AMS 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 AMS to inspect the Goods.
18.2 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).
18.3 AMS acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
18.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, AMS makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. AMS’ liability in respect of these warranties is limited to the fullest extent permitted by law.
18.5 If the Client is a consumer within the meaning of the CCA, AMS’ liability is limited to the extent permitted by section 64A of Schedule 2.
18.6 If AMS is required to replace the Goods under this clause or the CCA, but is unable to do so, AMS may refund any money the Client has paid for the Goods.
18.7 If the Client is not a consumer within the meaning of the CCA, AMS’ 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 AMS at AMS’ sole discretion;
(b) limited to any warranty to which AMS is entitled, if AMS did not manufacture the Goods;
(c) otherwise negated absolutely.
18.8 Subject to this clause 18, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 18.1; and
(b) AMS 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.
18.9 Notwithstanding clauses 18.1to 18.8but subject to the CCA, AMS 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 AMS;
(e) fair wear and tear, any accident, or act of God.
18.10 AMS may in its absolute discretion accept non-defective Goods for return in which caseAMS may require the Client topay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs. AMS may also charge a reasonable administration fee.
18.11 Notwithstanding anything contained in this clause if AMS is required by a law to accept a return then AMS will only accept a return on the conditions imposed by that law.
18.12 Subject to clause 18.1, customised, or non-stocklist items or Incidental Items made or ordered to the Client’s specifications are not acceptable for credit or return.
19. Intellectual Property and Confidentiality
19.1 At any time AMS discloses confidential information (including, but not limited to product, materials, procedures, equipment etc.) to the Client or the Client becomes aware of such confidential information, the Client will not use this information unless expressed in writing by AMS.
19.2 Where AMS has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of AMS. Under no circumstances may such designs, drawings and documents be used without the express written approval of AMS.
19.3 The Client warrants that all designs, specifications or instructions given to AMS will not cause AMS to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify AMS against any action taken by a third party against AMS in respect of any such infringement.
19.4 The Client agrees that AMS may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which AMS has created for the Client.
20. Default and Consequences of Default
20.1 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 AMS’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2 If the Client owes AMS any money the Client shall indemnify AMS from and against all costs and disbursements incurred by AMS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, AMS’ contract default fee, and bank dishonour fees).
20.3 Further to any other rights or remedies AMS may have under this contract, if a Client has made payment to AMS, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by AMS under this clause 20where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
20.4 Without prejudice to AMS’ other remedies at law AMS shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to AMS shall, whether or not due for payment, become immediately payable if:
(a) any money payable to AMS becomes overdue, or in AMS’ opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by AMS;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
21.1 Without prejudice to any other remedies AMS may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions AMS may suspend or terminate the supply of Goods to the Client. AMS will not be liable to the Client for any loss or damage the Client suffers because AMS has exercised its rights under this clause.
21.2 AMS 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 AMS shall repay to the Client any money paid by the Client for the Goods. AMS shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.3 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 AMS as a direct result of the cancellation (including, but not limited to, any loss of profits).
21.4 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.
22.1 Allemails, documents, images or other recorded information held or used by AMS is Personal Information, as defined and referred to in clause 22.3, and therefore considered Confidential Information. AMS acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). AMS acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by AMS that may result in serious harm to the Client, AMS will notify the Client in accordance with the Act and/or the GDPR. Any release of such personal information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
22.2 Notwithstanding clause 22.1, privacy limitations will extend to AMS in respect of Cookies where transactions for purchases/orders transpiredirectly from AMS’s website. AMS agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reportsare available to AMS when AMS sends an email to the Client, so AMS may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via AMS’s website.
22.3 The Client agrees for AMS to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by AMS.
22.4 The Client agrees that AMS may exchange information about the Client with those credit providers and with related body corporates 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 including the Client’s repayment history in the preceding two (2) years.
22.5 The Client consents to AMS being given a consumer credit report to collect overdue payment on commercial credit.
22.6 The Client agrees that personal credit information provided may be used and retained by AMS for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
22.7 AMS may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
22.8 The information given to the CRB may include:
(a) Personal Information as outlined in 22.3above;
(b) name of the credit provider and that AMS is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and AMS has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of AMS, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
22.9 The Client shall have the right to request (by e-mail) from AMS:
(a) a copy of the Personal Information about the Client retained by AMS and the right to request that AMS correct any incorrect Personal Information; and
(b) that AMS does not disclose any Personal Information about the Client for the purpose of direct marketing.
22.10 AMSwill destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
22.11 The Client can make a privacy complaint by contacting AMS via e-mail. AMS will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
23. Dispute Resolution
23.1 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.
24. Other Applicable Legislation
24.1 At AMS’ 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 Payment Act 2002 (Victoria), Building and Construction Industry Security of Payments Act 1999 (New South Wales), Construction Contracts Act 2004 (Western Australia), Building Industry Fairness (Security of Payment) Act 2017 (Queensland), Construction Contracts (Security of Payments) Act (Northern Territory of Australia), Building and Construction Industry Security of Payments Act 2009 (Tasmania), Building and Construction Industry Security of Payments Act 2009 (South Australia) and Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.
24.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 24.1(each as applicable), except to the extent permitted by the Act where applicable.
25. Service of Notices
25.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
25.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
26.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not AMS may have notice of the Trust, the Client covenants with AMS as follows:
(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of AMS (AMS will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trusteeof the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
27.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’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.
27.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which the Goods and/or Services were provided by AMS to the Client however, in the event of a dispute that deems necessary for the matter to be referred to a Magistrates or higher Court then jurisdiction will be subject to the courts in the state of South Australia in which AMS has its principal place of business.
27.3 Subject to clause 18,AMS 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 AMS of these terms and conditions (alternatively AMS’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
27.4 AMS may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
27.5 The Client cannot licence or assign without the written approval of AMS.
27.6 AMS may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of AMS’ sub-contractors without the authority of AMS.
27.7 The Client agrees that AMS may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed totake effect from the date on which the Client acceptssuch changes, or otherwise at such time as the Clientmakes a further request for AMS to provide Goods to the Client.
27.8 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.
27.9 Both partieswarrant that theyhavethe power to enter into this contract and have obtained all necessary authorisations to allow themto do so, they arenot insolvent and that this contract creates binding and valid legal obligations on them.