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Terms & Conditions

Durabuilt Products Pty Ltd

Terms and Conditions of Sale

  1. Interpretation

In these conditions:

Buyer means the purchaser of the Goods for any person acting on behalf of and with the express authority of the Buyer.

Goods means the products and, if any, services specified overleaf.

Price means the sale price of the Goods agreed between the Seller and the Buyer subject to clause 4.

Seller means Durabuilt Products Pty Ltd, which is the seller of the Goods.

Services means all services supplies by the Seller to the Buyer including any advice or recommendations.

Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.

  1. General

These conditions (which shall only be waived in writing signed by the Seller) shall prevail over all conditions of the Buyer's order to the extent of any inconsistency.

  1. Terms of sale

(a)          The Goods and all other products sold by Seller are sold on these terms and conditions.

(b)          Any instructions received by the Seller from the Buyer for the supply of Goods or Services shall constitute acceptance of these terms and conditions.

(c)           Such acceptance cannot be revoked without the written consent of the Seller and may include a charge to the Buyer of cancellation or authorisation fee for all expenses incurred by the Seller for labour, materials, Services, freight, overhead expenses, duties, taxes and loss of profit or loss of opportunity.

(d)          None of the Seller’s agents or representatives are authorised to make any representation, statements, conditions or agreements unless contained in writing by the Seller.

  1. Seller's quotations

Unless previously withdrawn, Seller's quotations are open for acceptance within the period stated in them or, when no period is so stated, within seven (7) days only after its date. The Seller reserves the right to refuse any order based on this quotation within 7 days after the receipt of the order.

  1. Packing

The cost of any special packing and packing materials used in relation to the Goods are at the Buyer's expense notwithstanding that such cost may have been omitted from any quotation.

  1. Shortage

The Buyer waives any claim for shortage of any Goods delivered if a claim in respect for short delivery has not been lodged with the Seller within 7 days from the date of receipt of Goods by the Buyer.

  1. Drawings, etc

(a)          All specifications, drawings, and particulars of weights and dimensions submitted to the Seller are approximate only and any deviation from any of these things does not vitiate any contract with the Seller or form grounds for any claim against the Seller.

(b)          The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods.

(c)           Where specifications, drawings or other particulars are supplied by the Buyer for the purposes of the Goods order, the Seller's price will be calculated on the basis of estimates of quantities required to provide the Goods as specified, drawn or otherwise particularised by the Buyer. If there are any adjustments in quantities above or below the quantities estimated by Seller as set out in a quotation, then any such increase or decrease will be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.

  1. Performance

(a)          Any performance figures given by the Seller are estimates only. The Seller is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.

(b)          The Seller may compute an estimate of dimensions and quantities of the Goods based on plans or other information given by or on behalf of the Buyer. The Seller shall have no liability as to the correct computation of any such estimate and the estimate is provided to the Buyer as indicative only and the Seller is not responsible for any mistakes in the estimate. The Buyer undertakes to check any such estimate and in any event accepts full responsibility for the dimensions and quantities of the Goods ordered as independently computed by the Buyer without relying on the estimate.

(c)           The Buyer warrants to the Seller that it will not rely on representations made and/or advice given by the Seller or its employees in connection with the design, dimensions, installation or use of the Goods and agrees that the Seller shall not be liable for the consequences of any mistakes in such representation or advice even if made or given negligently.

(d)          Any description or specification given by the Seller or in printed literature of the Seller is for general indicative purposes only and does not render the Seller responsible in any way except to the extent that the Goods shall comply with the standards set out in such description or specification and that such description or specification shall not be taken as implying or giving any undertaking as to fitness for any particular purpose.

(e)          If the Goods are required for a particular purpose the Buyer must clearly specify that purpose in writing in the order placed with the Seller and obtain written assurance from the Seller that the Goods when supplied will meet that requirement. If the Buyer does not specify the particular purpose and the Seller does not expressly undertake in writing that the Goods will be fit for the specified purpose, the customer agrees that it did not rely on the skill or judgment of the Seller in relation to the suitability of the Goods for a particular purpose and acknowledges that the Seller has not made any representation regarding the suitability of the Goods for any particular purpose whatsoever.

(f)           The Buyer acknowledges that the Goods require assembly by the Buyer on a “do it yourself basis” (“DIY”). The Buyer shall be responsible for thoroughly reading and understanding the instructions for assembly before commencing assembly of the Goods. The buyer will strictly comply with the assembly instructions and all safety guidelines. In the event that assembly instructions or safety guidelines are not contained with the Goods the Buyer will not commence assembly or use of the Goods until obtaining such instructions and guidelines from the Seller. The Seller shall not be liable for any damage, injury, or loss occasioned by the Buyer failing to comply with this clause or the assembly instructions and safety guidelines.

  1. Delivery

(a)          The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.

(b)          The Buyer is not relieved from any obligation to accept and pay for the Goods by reason of any delay in or in the instalment delivery of the Goods.

(c)           The Seller will not be liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery or late installation of the Goods and, without limitation in no event shall the Seller be responsible for any loss of profits, penalties, disruption, expenditure, fees or damage incurred or sustained by the Buyer due directly and indirectly because of a delay in the delivery of the Goods regardless of the cause of the late or non-delivery or late installation.

(d)          The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement overleaf to the effect that the Buyer will not take delivery by instalments.

(e)          If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:

(i)            this does not constitute a repudiation of the contract of sale formed by these conditions; and

(ii)           the defective instalment is a severable breach that gives rise only to a claim for compensation.

(f)           If the Goods are delivered by the Seller to the Buyer in a damaged state or there is short delivery or incorrect or faulty Goods supplied, the Buyer must request the company in writing for any rectification or replacement within eight (8) hours of the delivery of the alleged damage, short supply, incorrect or faulty Goods and the Buyer must at the time of the delivery specify in the delivery docket the nature and extent of the alleged damage, short supply or incorrectness of the Goods.

(g)          Any Goods returned by the Buyer will be held and/or disposed of by the Seller on behalf of the Buyer unless the return of Goods is proceeded by the complaint and claim in writing as specified in the preceding paragraph. The Buyer must facilitate the inspection of the Goods by the Seller’s representative prior to return. Acceptance of any returned Goods shall not imply any acceptance by the Seller of the Buyer’s claim.

(h)          All components, including their quality and quantities must be checked by the Buyer in accordance with the supply component checklist within five (5) working days of receipt of the Goods. All Goods shall be deemed to be inspected and accepted by the Buyer unless notification to the contrary in writing is received by the Seller within five (5) business days after delivery. Thereafter the Buyer releases the Seller from all liability in respect to the quality and quantity of components.

(i)            The Seller is not liable for additional costs or expenses, charges, or any damages caused by missing, incorrect or damaged components, whether reported to the Seller either before or after the period referred to in clause 9(h).

  1. Loss or damage in transit

(a)          The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind or by any person (whether or not the Seller is legally responsible for the actions of that person).

(b)          The Buyer indemnifies the Seller from any claim whatsoever resulting from the Buyer, their employees or agents loading Goods supplied by the Seller on any vehicle or unloading Goods supplied by the company from any vehicle.

(c)           Any visible product or packaging damage must be reported in writing to the Seller no later than 5 working days from receipt of the Goods.  Where a freight carrier or agent has taken receipt of the Goods on behalf of the Buyer the date of receipt shall be deemed to be when the Goods have been received by the freight carrier or agent.

(d)          Where delivery has been made direct to the Buyer, the freight carrier Proof of Delivery (“PoD”) must be marked with a quantity, description, date, time and place of delivery as shown on the Seller’s invoice or delivery docket which shall be conclusive evidence of quantity, description, date, time and place of delivery of such Goods.

 

(e)          If visible freight or packaging damage is not reported at the time of delivery, the Buyer assumes all responsibility for any product damage reported thereafter.

(f)           The Seller shall not liable for any additional costs, loss, damage, loss of profit or any claim whatsoever due to freight damage.

(g)          Where Goods are delivered to a particular site the Goods will be entirely at the Buyer’s risk.

 

(h)          If the cartage contractor or a driver is not satisfied that access to the delivery site is safe the Goods will be unloaded at a curb site adjacent to the delivery address.

(i)            The Seller or its agents or carrier are not required to enter a property, carry or assist in moving Goods.  Delivery is considered complete once at curb side.

(j)           The Seller must provide the Buyer with such assistance as may be reasonably necessary to institute claims against a carrier for damages to Goods in transit so long as the Buyer has notified the Seller and the carrier in writing immediately after loss or damage is discovered on receipt of Goods.

  1. Returns and Cancellation

(a)          Except for any provisions to the contrary contained in this agreement, the Seller is not under any duty to accept Goods returned by the Buyer and will do so only on terms to be agreed in writing in each individual case.

(b)          If the Seller agrees to accept returned Goods from the Buyer under para (a) of this clause, the Buyer must return the Goods to the Seller at the Seller's place of business referred to at the head of these conditions.

(c)           New, unopened items may be returned within 30 days of delivery. 

(d)          The amount of any refund will be in the absolute discretion of the Seller and in any case limited to the amount originally invoiced for the Goods less a minimum of 30% of the original order value and return freight charges to cover inspection, documenting, restocking, repacking and any other charges that may be applied.

(e)          No order may be cancelled by the Buyer except with the written consent of the Seller. In the event of a cancellation of the order by the Buyer, the Seller has the right to claim indemnity against all losses suffered by the Seller as a result of such cancellation.

(f)           In the event that the Seller agrees to a cancellation of an order after acceptance it shall be entitled to be paid a cancellation charge in an amount determined by the Seller which shall not be less than 20% of the original order value of the goods. 

  1. Guarantee

(a)          The Seller's liability for Goods manufactured by it is limited to making good any defects by repairing the defects or at the Seller's option by replacement, within a period not exceeding 12 calendar months after the Goods have been dispatched so long as:

(i)            the defects have arisen solely from faulty materials or workmanship;

(ii)           the Goods have not received maltreatment, inattention or interference;

(iii)          accessories of any kind used by the Buyer are manufactured by or approved by Seller; and

(iv)         the defective parts are promptly returned free of cost to the Seller.

(b)          If the Goods are not manufactured by the Seller the guarantee of the manufacturer of those Goods is accepted by the Buyer and is the only guarantee given to the Buyer in respect of the Goods. The Seller agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to the Goods that the manufacturer has granted to the Seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.

(c)           The Seller is not liable for and the Buyer releases the Seller from any claims in respect of faulty or defective design of any Goods supplied unless such design has been wholly prepared by the Seller and the responsibility for any claim has been specifically accepted by the Seller in writing. In any event the Seller's liability under this paragraph is limited strictly to the replacement of defective parts in accordance with paragraph (a) of these conditions.

(d)          Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, 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. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Seller's negligence or in any way.2

  1. Consumer guarantees

(a)          Incorporated into these Terms and Conditions of Sale are the EasyBuilt 20 year Garden Shed Warranty Terms, a copy of which can be obtained from the Seller by request.

(b)          Apart from the Warranty Terms referred to in clause 13 (a), to the fullest extent permitted by law, all terms, conditions, guarantees, indemnities and warranties statutory or otherwise not expressly provided in these terms and conditions of sale are excluded. To the extent that any such obligation cannot be excluded the Seller's liability for a breach of a condition or warranty implied by Pt 3-2 Div 1 of the Australian Consumer Law is limited to:

 (i)           in the case of Goods, any one or more of the following:

(1)          the replacement of the Goods or the supply of equivalent goods;

(2)          the repair of the Goods;

(3)          the payment of the cost of replacing the Goods or of acquiring equivalent goods;

(4)          the payment of the cost of having the Goods repaired; or

(ii)           in the case of services:

(1)          the supplying of the services again; or

(2)          the payment of the cost of having the services supplied again.

 

  1. Indemnification of suppliers by manufacturers

The Seller's liability under s 274 of the Australian Consumer Law is expressly limited to a liability to pay to the purchaser an amount equal to:

(a)          the cost of replacing the Goods;

(b)          the cost of obtaining equivalent goods; or

(c)           the cost of having the Goods repaired,

whichever is the lowest amount.

 

  1. Prices

(a)          The Price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods.

(b)          Unless otherwise stated all prices quoted by vendor are net, exclusive of Goods and Services Tax (GST).

(c)           Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production ruling on the date is made.

(d)          If the Seller makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Buyer's account.

(e)          At the Sellers sole discretion:

(i)            The Price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or

(ii)           The Price of the Goods shall be the Seller's quoted Price which shall be binding upon the Seller provided that the Buyer shall accept in writing the Seller's quotation within thirty (30) days.

  1. Payment

(a)          Unless otherwise negotiated, payment for Goods and/or Services is to be received in full by the Seller prior to dispatch.

(b)          The Seller reserves the right to charge the buyer interest at the rate fixed by rule 36.7 of the Uniform Civil Procedure Rules 2005 calculated on daily balances on the amount of the Price outstanding after one (1) month to be calculated from the date of the invoice until paid in full.

(c)           The Buyer shall be liable for the costs incurred by the Seller in using services of a solicitor, collection agent or other agent in recovering from the Buyer any amount of the Price and interest outstanding from time to time.

(d)          Nothing in this provision is to be construed as the Seller consenting to late payments of the Price.

  1. Rights in relation to Goods

The Seller reserves the following rights in relation to the Goods until all accounts owed by the Buyer to the Seller are fully paid:

(a)          Prior to title in the Goods passing to the Buyer under the terms of this agreement, the Buyer agrees that:

(i)            the Buyer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation the Seller owes to the Buyer;

(ii)           the Buyer cannot claim any lien over the Goods;

(iii)          the Buyer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by the Seller; and

(iv)         where the Buyer is in actual or constructive possession of the Goods:

(1)          the Buyer will not deliver them or any document of title to the Goods to any person except as directed by the Seller; and

(2)          it is in possession of the Goods as a bailee of those Goods and owes the Seller the duties and liabilities of a bailee.

(b)          In connection with the Goods, the Seller states to the Buyer that:

(i)            the Seller has the right to supply the Goods to the Buyer;

(ii)           the activities of the Buyer in supplying the Goods do not infringe the rights of the owner of the Goods (where the Seller is not the owner of the Goods); and

(iii)          if the Goods are not owned by the Seller, that the Seller is authorised to supply the Goods to the Buyer.

(c)           The Seller and the Buyer agree that:

(i)            the property of the Seller in the Goods remains with the Seller until the Seller has been paid in full for the Goods under all individual contracts for the supply of the Goods between the Seller and the Buyer;

(ii)           the Buyer is a bailee of the Goods until such time as property in them passes to the Buyer and that this bailment continues in relation to each of the Goods until the price of the Goods has been paid in full; and

(iii)          pending payment in full for the Goods, the Buyer:

(1)          must not supply any of the Goods to any person outside of its ordinary or usual course of business;

(2)          must insure the Goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Buyer carries on business;

(3)          must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods.

(d)          If the Buyer supplies any of the Goods to any person before all moneys payable by the Buyer have been paid to the Seller, the Buyer agrees that:

(i)        it holds the proceeds of re-supply of the Goods on trust for and as agent for the Seller immediately when they are receivable or are received;

(ii)       it must either pay the amount of the proceeds of re-supply to the Seller immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the Seller;

(iii)      any accessory or item which accedes to any of the Goods by an act of the Buyer or of any person at the direction or request of the Buyer becomes and remains the property of the Seller until the Seller is paid in accordance with paragraph (c)(i) when the property in the Goods (including the accessory) passes to the Buyer; and

(iv)     if the Buyer fails to pay for the Goods within the period of credit (if any) extended by the Seller to the Buyer, subject to, and in accordance with, the Personal Property Securities Act 2009, the Seller may recover possession of the Goods at any site owned, possessed or controlled by the Buyer and the Buyer agrees that the Seller has an irrevocable licence to do so.

  1. Buyer's property

Any property of the Buyer under the Seller's possession, custody or control is completely at the Buyer's risk as regards loss or damage caused to the property or by it.

  1. Storage

The Seller reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Buyer within fourteen days of a request by the Seller for such instructions. The parties agree that the Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.

  1. Goods sold

All Goods to be supplied by the Seller to the Buyer are as described on the purchase order agreed by the Seller and the Buyer and the description on such purchase order as so agreed prevails over all other descriptions of the Goods including any specification or enquiry of the Buyer.

  1. Personal Property Securities Act 2009 (PPSA) [insert if retention of title clause is contained in the agreement]

(a)          This agreement is a security agreement.

(b)          The interest of the Seller in the Goods and all proceeds from the sale of the Goods by the Buyer to a third party is a security interest.

(c)           The Buyer consents to the Seller registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonable required by the Seller to facilitate registration.

(d)          Until such time as title in the Goods has passed to the Buyer as contemplated by clause 16 of this agreement, the Buyer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create, a security interest over, the Goods in favour of the Buyer or any third party, The parties agree that this clause will not prohibit the Buyer from selling the Goods in the ordinary course of business..

(e)          The Buyer waives its rights to receive any notice under PPSA (including notice of verification statement) unless the notice is required by that Act and cannot be excluded.

(f)           The Seller and Buyer agree that this agreement and all related information and document(s) are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. The Seller and Buyer agree that the Seller will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.

(g)          Unless the Goods are used predominantly for personal, domestic or household purposes, the Seller and the Buyer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of the Seller’s security interest in the Goods or of this agreement:

(i)            any requirement for the seller to give the Buyer a notice of removal of accession;

(ii)           any requirement for the Seller to give the Buyer a notice of the Seller’s proposed disposal of the goods;

(iii)          any requirement for the Seller to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;

(iv)         any requirement for the Seller to give the Buyer a statement of account if the Seller does not dispose of the Goods;

(v)          any right the Buyer has to redeem the Goods before the Seller exercises a right of disposal; and

(vi)         any right the Buyer has to reinstate this agreement before the Seller exercises a right of disposal of the Goods.

(h)          Expressions defined in the PPSA have the same meaning when used in this agreement.

  1. Termination

(a)          In the absence of any breach of this agreement, either party may terminate this agreement in its absolute discretion with a minimum of 60 days written notice to the other party.

(b)          This agreement will automatically terminate if a party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction).

(c)           Either party may terminate this agreement if the other party is in material breach of any of its obligations under this agreement and if the breach is capable of remedy fails to remedy the breach for a period of 30 days after receipt of a written notice by the other party requiring rectification of the breach.

(d)          Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this agreement.

(e)          The obligations of the parties that by their nature could reasonably construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.

  1. Place of contract

The contract for sale of the Goods is made in New South Wales, Australia. The parties submit all disputes arising between them to the courts of New South Wales and any court competent to hear appeals from those courts of first instance.

 

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