small australian projects Pty Ltd

1. DEFINITIONS
   • 1.1In the Contract, unless the context otherwise requires:
     ‘Buyer’ means the person specified in the Contract Details;
     ‘Contract’ means the contract for the supply of Goods by the Seller to the Buyer in accordance with these Terms and Conditions, and includes the Contract Details and the Warranty;
     ‘Contract Details’ means the contract details cover sheet attached to the front of these Terms and Conditions.
     ‘Delivery Date’ means the date for delivery in the Contract Details;
     ‘Goods’ means the goods ordered by the Buyer as described in the Contract Details, and any parts comprising the Goods;
     ‘GST’ has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended;
     ‘Price’ means the total price for the Goods ordered by the Buyer, as set out in the Contract Details, as may be adjusted by the Seller in accordance with clause 4;
     ‘Seller’ Small Australian Projects Pty Ltd ACN 129 525 935 and its assigns;
     ‘Seller’s Premises’ means the place from which the Goods are made available for collection by the Buyer;
     ‘Terms and Conditions’ means these terms and conditions;
     ‘Variation of Contract’ means any variation whatsoever to the Contract including without limitation variation to an order for supply of Goods or loading requirements, delivery times and delivery sites;
     ‘Warranty’ means the warranties given by the Seller in clause 9 of the Terms and Conditions;
   • 1.2Words importing the singular include the plural and vice versa unless the context otherwise requires.
   • 1.3Clause headings are for convenience of reference only and shall not affect the construction of the Terms and Conditions.
   • 1.4These Terms and Conditions and the Contract Details constitute the entire agreement between the Buyer and the Seller.
   • 1.5No course of prior dealings between the parties and no usage of trade are to be relevant to supplement or explain any term used in this Agreement.
2. ACCEPTANCE
   • 2.1 A Contract will be deemed to have been created between the parties on these Terms and Conditions upon this Contract being signed by both the Seller and the Buyer.
3. PURCHASE OF GOODS
   • 3.1The Buyer agrees to purchase the Goods from the Seller.
4. PRICE AND PAYMENT
   • 4.1The Seller may adjust the Price as a result of:
     • (a) any increase in the costs of materials, labour, storage or delivery;
     • (b) foreign exchange fluctuations;
     • (c) changes in duties or taxes; or
     • (d) any other costs not included in the Price and occurring for reasons beyond the reasonable control of the Seller.
   • 4.2If the Price is increased by the Seller, the Seller must give the Buyer written notice of the increase as soon as practicable.
   • 4.3Subject to clause 4.4 the Buyer will:
     • (a) pay to the Seller a deposit in the amount and within the time period nominated by the Seller in the Contract Details; and
     • (b) pay to the Seller the balance of the Price as determined by the Seller and set out in the Contract Details on or before the earlier of the Delivery Date and the date the Buyer takes delivery of the Goods.
   • 4.4Payment is to be made by the method identified in the Contract Details or any other method acceptable to the Seller.  If payment is made by cheque, payment will only be effective when the cheque has been cleared by the Seller’s financial institution and the proceeds of the cheque are immediately available to the Seller.
   • 4.5If there is a dispute about whether a Price, refund or other amount contemplated by this agreement is payable or available, the Seller may withhold the amount in dispute until the resolution of the dispute.
   • 4.6The Buyer shall pay the Seller, on demand, default interest at the rate of 10% per annum on all overdue amounts owed by the Buyer to the Seller.  Interest shall be calculated daily and payable together with the overdue amount.
   • 4.7All invoiced amounts must be paid by the Buyer in full and without deduction or set off of any kind on or before the due date as specified on the Contract Details.
5. CHANGES TO ORDER
   • Where any Variation of Contract is requested by the Buyer, the Buyer shall pay to the Seller in addition to the Price any incidental costs and expenses incurred by the Seller relating to the Variation plus 20% of the costs incurred to reproduce the Goods in accordance with the variation.  The Seller shall not be responsible for and shall have no liability to the Buyer for delays in delivery or performance due to such Variation of Contract.
6. DELIVERY
   • 6.1Delivery of the Goods shall occur at the Seller’s Premises during normal business hours, except where the Buyer and the Seller agree otherwise.
   • 6.2All costs in relation to and incidental to delivery of the Goods shall be paid by the Buyer.
   • 6.3The Seller will notify the Buyer upon the Goods becoming available for delivery and the Buyer must take delivery of the Goods within seven (7) days of that notification or as otherwise agreed in writing between the Seller and the Buyer.
   • 6.4The Seller will use its best endeavours to deliver the Goods by the Delivery Date.  In no event will the Seller be liable to the Buyer or any other party for any delay of any kind whatsoever in complying with or meeting such order irrespective of whether such delay is incurred or suffered as a result of any cause or circumstance within the control of the Seller or any other cause or circumstances whatsoever, including negligence.
   • 6.5In the event that the Seller or its agent is required to enter onto the Buyer’s property for the purpose of delivery, the Buyer gives a licence to the Seller or its agent to enter the Buyer’s property and the Buyer releases the Seller from any liability for damage to the property of the Buyer.
   • 6.6Where the quantity, description, date, time, contact details and place of delivery of the Goods is indicated on the Seller’s Contract Details or delivery docket this shall be conclusive evidence of such quantity, description, date, time and place of delivery.
7. INSPECTION
   • 7.1The Buyer must inspect the Goods immediately upon delivery.
   • 7.2Subject to clause 9, no claim that the Goods do not conform with this Contract or are not in satisfactory order may be made against the Seller unless written notice of such claim showing the date of delivery of the Goods and full details of the alleged defects is received by the Seller within two (2) days after delivery of the Goods by the Seller to the Buyer in accordance with clause 6.
   • 7.3If the Buyer fails to advise the Seller in accordance with clause 7.2, the Goods shall be deemed to conform to the Contract.
8. RISK IN AND TITLE TO THE GOODS
   • 8.1Risk in the Goods shall pass to the Buyer immediately upon delivery.  It shall be the Buyer’s responsibility to arrange appropriate insurance at its cost.
   • 8.2Title in the Goods shall only pass to the Buyer when all amounts payable by the Buyer to the Seller have been paid.
   • 8.3Where Goods are delivered by the Seller to the Buyer without payment of the Price in full, the Buyer shall hold the Goods on trust for the Seller until all amounts owed by the Buyer to the Seller have been paid in full.
   • 8.4Despite clause 8.3, where the Goods become part of other goods or are incorporated in any object, the Goods shall be deemed to remain separate and subject to the rights of the Seller until payment of all sums owing to the Seller.
   • 8.5Where Goods supplied by the Seller to the Buyer are replacement goods, title and risk in the Goods which have been replaced will pass to the Seller upon replacement.
9. WARRANTIES
   • 9.1All express or implied terms, conditions, warranties, statements, assurances and representations in relation to any Goods supplied by the Seller (regardless of whether such terms, conditions, warranties, statements, assurances or representations are implied by virtue of any statute, the common law, equity, trade custom or usage or otherwise) are expressly excluded, except for:
     • (a) the Warranty;
     • (b) the express provisions of these Terms and Conditions; and
     • (c) those conditions and warranties which must be implied under the law of any State of Australia or the provisions of Division 2 of Part V of the Trade Practices Act 1974 and any statutory modification or re-enactment thereof.
   • 9.2The Seller warrants that the Goods are free from defects in material and workmanship at the time of delivery and such materials and workmanship shall be warranted for a period of 12 months for Goods used in the home and for a period of 24 months for Goods used in an office from delivery of the Goods (‘Warranty Period’).
   • 9.3The Buyer acknowledges that the references to ‘defect’ and ‘fault’ in this document do not apply to any latent timber imperfections used in the Goods and are expressly excluded from clause 9.
   • 9.4Within 7 days of the Buyer becoming aware of the defect or fault in the Goods, the Buyer must notify the Seller of the following:
     • (a) the date of delivery of the Goods; and
     • (b) full details of the alleged defect or fault.
   • Clause 9 shall not apply if the Buyer fails to provide notice in accordance with this paragraph 9.3
   • 9.5The Seller assumes no liability and this Warranty shall not apply in the following circumstances:
     • (a) the Buyer uses the Goods in any way whatsoever after the Buyer becomes aware of any defect or fault in the Goods;
     • (b) the Buyer attempts to repair the defective or faulty Goods without the prior written consent of the Seller;
     • (c) any defect, fault or malfunction in the Goods arises as a direct or indirect result of:
       • (i) lack of proper maintenance or care of the Goods;
       • (ii) incorrect or unreasonable use of the Goods;
       • (iii) failure by the Buyer to carry out or to observe instructions or directions given by the Seller or its nominees;
       • (iv) unauthorised modification or repairs attempted to be carried out by the Buyer or by some other person on behalf of the Buyer;
       • (v) use of parts not approved by the Seller; or
       • (vi) failure of the Buyer to adhere to any manuals.
   • 9.6Where the Buyer claims that the Goods are defective or faulty, the Seller may request the Buyer to return the Goods to the manufacturer’s premises for inspection.  Failure to return the Goods to the manufacturer’s premises as required may result in the Buyer being charged for replacement parts.
   • 9.7If the Buyer claims that there has been a breach of any conditions or warranties of the Seller under the Contract or if the Goods are found to be defective, the Seller’s liability shall be limited, at its sole discretion, to any one of the following:
     • (a) the replacement of the Goods or the supply of equivalent Goods;
     • (b) the repair of the Goods
     • (c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
     • (d) the payment of the cost of having the Goods repaired.
   • 9.8If the Seller determines that there is not a defect or fault in materials or workmanship, then the Buyer shall pay the costs of the Seller in providing any repair or replacement services, as well as the cost of any parts.
   • 9.9The Seller shall not in any circumstances be liable to the Buyer or to any party beneficially entitled under this Contract for any indirect, special, exemplary, punitive or consequential damages (including, but not limited to, loss of actual or anticipated profits or revenues, loss by reason of shut down or non-operation, increased cost of borrowing, capital or financing, or loss of use of productivity), whether arising from negligence, breach of contract, action in tort or otherwise in connection with the supply or use of the Goods, or any condition, warranty, obligation or liability arising under this Contract.
   • 9.10The Buyer declares that it has read these Terms and Conditions and the Warranty prior to entering into this Contract and, except as expressly stated in the Contract, no warranty, assurance, promise or representation has been made by or on behalf of the Seller regarding the quality, fitness for use, suitability, merchantability or history of the Goods or regarding any other matter or thing whatsoever.  The Buyer agrees that it has relied entirely on its own knowledge, skill and judgment in entering into this Contract.
   • 9.11This Contract is not a sale by sample unless expressly stated in the Contract.
10. DEFAULT
    • 10.1If:
      • (a) the Buyer breaches or is alleged to have breached any term of this Contract including a failure to pay any amount owing to the Seller;
      • (b) where the Buyer is an individual, the Buyer commits an act of bankruptcy, has a bankruptcy petition presented against them or is made bankrupt; or
      • (c) where the Buyer is a corporation, the Buyer becomes an externally administered body corporate as defined in Section 9 of the Corporations Act 2001, has a receiver of its property or part of its property appointed or has a winding up order made in respect of it,
    • then the Seller may without prejudice to any other of its rights:
      • (d) refuse to deliver the Goods, except where payment in full has been received by the Seller
      • (e) repossess any Goods delivered to the Buyer where the payment for which has not been received; or
      • (f) retain (where applicable) all monies paid on account of Goods with or without notice of the default.
11. INDEMNIFICATION
    • 11.1The Buyer agrees to indemnify the Seller from and against any and all claims, demands, suits, liabilities, causes of action, losses, expenses, damages or penalties, including without limitation court costs and legal fees, for injuries or property damage, to the extent arising or resulting from a breach of this Contract by the Buyer or any negligent acts or omissions of the Buyer.
    • 11.2The Buyer agrees to extend the benefit of the indemnity in clause 11.1 to the Seller’s officers, directors, employees, agents, consultants and representatives.
12. GENERAL
    • 12.1These Terms and Conditions are to be governed by and construed in accordance with the laws of Queensland.
    • 12.2Any Term or Condition being a whole clause or part of a clause which is invalid, unlawful, void or unenforceable and capable of severance without affecting any other term or condition in these Terms and Conditions, shall be severed.
    • 12.3Any variation of the Contract must be in writing and signed by the Seller