SVC Products Pty. Ltd. ACN 004 279 458, t/as Anston Architectural Products (Anston)
The party named as Customer at Item 1 of Schedule 1 (Customer)
2. Definitions and Interpretation
In these Terms, unless the context requires otherwise:
- The following expressions shall have the following meanings:
Agreement means the agreement between Anston and the Customer for the supply of Goods incorporating the relevant quotation, these Terms, ad any related document, including any order submitted by the Customer and Anston’s acceptance of that order;
Anston means S.V.C Products Pty Ltd CAN 004 279 458, ABN 96 004 279 458, trading as Anston Architectural Products, and we, us and our are references to Anston;
Claim means any claim, action, demand or proceeding however arising (including under contract, statute, common law or equity) in respect of any Loss or alleged Loss;
Confidential Information means any information, verbal or written, personal or otherwise including documents, plans, sketches, drawings, software, marketing strategies, research, trade secrets, processes, technical information, know-how and intellectual property of Anston, but does not include public information, information independently developed or acquired or information authorised in writing by Anston;Consumer shall have the meaning given to that term in the Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth);Custom Product means any product which is made to meet customer-specific specifications inclusive of shape, form and finish;
Customer means the persons, firm or company from whom the order is received or its legal assigns or successors, and references to you and your are references to the Customer;
Delivery Point means the place nominated in Schedule 1 for delivery of the Goods subject of that Agreement. For the avoidance of doubt, if no Delivery Point is nominated, delivery can take place at Anston’s premises;
Goods means those items specified in the Customer’s order accepted by Anston and supplied by Anston and any other goods supplied from time to time;
GST means any tax or imposition on the supply of goods and services covered by A New Tax System (Goods and Services Tax) Act 1999 (Cth) (the GST Act) as amended from time to time;
GST Amount in relation to a taxable supply, as that term is defined in the GST Act (excluding the reference to section 84-5 of that Act), means the amount of GST payable in respect of that taxable supply;
Intellectual Property means all copyright, Confidential Information, patents, inventions, trade secrets, know-how, product formulations, designs including product and mould designs, circuit, layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other recognised forms of intellectual property;
Loss includes (without limitation) all types of losses and damages whether direct or indirect, special or consequential in nature, including legal costs (on a solicitor own client basis), fines and loss of profits;
PPS Act means the Personal Property Securities Act 2009 (Cth);
PPSA means the PPS Act and includes a reference to the Act as amended, re-enacted or replaced and any subordinate legislation issued under it;
Quotation Date means the date of any quotation we give you;
Services means the services to be provided by Anston to the Customer (including the supply of Goods) under these Terms, as detailed in Schedule 1 and any other services provided by Anston to the Customer. For the avoidance of doubt, the parties agree that the “Services” fall within the definition of “construction work” under the SOPA;
SOPA means the Building and Construction Industry Security of Payment Act 2002 (Vic);
Tax Invoice has the same meaning as in the GST Act; and
Terms means these general terms and conditions of sale.
- In these Terms, unless the context otherwise requires:
- All amounts are in Australian dollars unless expressly stated otherwise:
- A reference to a party includes the party’s heirs, executors, successors and permitted assigns;
- Where any word or phrase is given a defined meaning, any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
- A reference to a statute includes all regulations and subordinate legislation and amendments;
- References to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail;
- A reference to time is to local time in Victoria and a reference to a business day means any day on which trading banks are open for business in Melbourne. If any time period specified in these Terms expires on a day which is not a business day, the period shall expire at the end of the next business day;
- The word “person” includes a natural person and any body or entity whether incorporated or not;
- Reference to words in the singular include the plural and vice versa; and
- Where there are two or more persons comprised in the definition of the Customer, then the obligations imposed on the Customer by these Terms shall be deemed to be joint and several.
- Any quotation issued to you by Anston will lapse if not accepted by you within 45 days of the Quotation Date.
- The prices quoted by Anston are calculated upon costs current at the Quotation Date for ordinary work during normal working hours and is subject to cost adjustment.
- Commencement of work by us at your request will constitute your full acceptance of the offer set out in our Quotation, including these Terms.
- If you order less than the original quantity set out in our quotation and we accept that order, Anston reserves the right to increase the quoted price per unit. If accepted, your partial order will be subjected to these Terms.
- Unless otherwise expressly agreed by Anston, you must pay for all Goods/Services supplied under an Agreement at the time you notify us that you accept our quotation or submit a partial order, or as otherwise agreed by us in writing.
- Subject to paragraph 4(c), account customers will be issued a Tax Invoice for Goods/Services supplied on the date of delivery. Non-account customers will be required to make full payment prior to delivery.
- If Anston has produced Goods in accordance with a schedule agreed with you, but the Goods are not able to be delivered, we will issue interim invoices on a periodic basis and each such invoice will be valued at 90% of the value of the Goods produced since production commenced or since the last interim invoice was issued as applicable. The balance of the value of the Goods will be invoiced during the month in which the Goods are delivered to you or at your direction. All invoices rendered under this paragraph 4(c) will be on a “net 30 days” basis.
- If you have established a credit account with us which remains current, you must pay all credit accounts within 30 days of the end of the month during which a tax invoice has been issued to you (Due Date). Any amount which remains unpaid 15 days after the Due Date will attract interest at the rate fixed under Section 2 of the Penalty Interest Rates Act 1983 plus 2% per annum on the overdue balance from the Due Date until the date of payment (Default Rate).
- For custom products, the following structure applies:
Custom orders – A 30% payment is required upon confirmation of order. For non-account customers, full payment will be required prior to dispatch.
- The SOPA applies to Goods/Services supplied by us.
- The Customer may not withhold payment, set-off or make any deduction from any amount owing without Anston’s prior written consent.
- In the event that processing of a payment by cheque, credit card, or otherwise attracts additional bank charges, collection fees or other expenses, the Customer must reimburse Anston for those additional expenses immediately on demand. Costs incurred by Anston in seeking payment of an unpaid account will form a variation to that account.
- To the extent permitted by law, all amounts paid under these Terms are non-refundable under any circumstances.
- The Customer will also pay to Anston on demand, on a full indemnity basis, all amounts that Anston may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis) as a result of the Customer defaulting on any of the terms of these Terms.
- The parties acknowledge that this clause is to be implemented in accordance with the SOPA.
5. Variations and Cancellations
- The prices quoted are based upon the drawings, specifications, bills of quantities, or nominated quantities detailed in your order.
- In the event that you require any variation to be made after the date of our quotation, we reserve the right to adjust the quoted prices accordingly.
- You may, prior to us commencing to product made-to-order Goods for you or prior to us delivering to you Goods you have ordered which are in stock and are not made-to-order (as determined by us), by notice in writing, request the cancellation of your order in part or in full. Except where such cancellation follows an amendment by Anston pursuant to clause 5(d), our acceptance of such requests will be conditional upon you paying to us all expenses, including out-of-pocket expenses we have incurred prior to the date of our acceptance of your request, and paying us for the time we have spent on your order. Until full payment of the amount notified by us is received, we are under no obligation to accept the cancellation request.
- Anston may amend an order or cancel the delivery of Goods at any time before delivery by giving notice to the Customer by any means. If Anston amends an order, the Customer may without penalty cancel the order by written notice to Anston within seven days of the notice of amendment.
- Anston shall not be liable for any Loss arising from such cancellation.
- The Customer must supply all dimensions and any other information requested by us to us to enable us to comply with an order within the reasonable timeframe notified by us.
- If shop drawings are required, you must provide to us all dimensions, drawings and other information necessary for their preparation.
- We reserve the right to submit shop drawings for your approval.
- You must check the details and dimensions shown on any shop drawings and other information and plans submitted for approval and return same signed as approved and correct for manufacture or amended as required for re-submission. Unless you notify us otherwise, we are entitled to assume such drawings, information and plans are correct.
- All moulds, their designs, and any Confidential Information remains our property (including the intellectual property therein).
7. Delivery schedules, sequence of work and cost of delays
- Delivery times set out in our quote are subject to review and change by us at the time of acceptance by you, taking into account your requirements but also the time required for the preparation and approval of shop drawings and the subsequent manufacture of moulds, the procurement of materials, fittings and equipment and any other preparatory work.
- Any costs arising from alterations to the agreed sequence and program of manufacture or delivery caused by you will be paid for by you as a variation.
- We reserve the right to charge for any delays, due to circumstances beyond our control, which require us to store Goods, or which require double handling or other expenses. Storage will be charged at the rate of $5.00 per tonne or per pallet per week.
- Anston will use reasonable endeavours to deliver Goods to the Customer in accordance with the times stated in any Agreement between Anston and a Customer. However:
- In the case of delivery, time will not be of the essence and Anston will not be liable to the Customer if delivery is not effected on time; and
- Anston shall not be liable for any Loss, arising from delay in delivery or failure to deliver Goods, either whole or in part, due to circumstances beyond its control (as determined by Anston acting reasonably), including any failure of the Customer to supply details or dimensions or to approve shop drawings.
- Anston is under no obligation to deliver Goods if the full price of the Goods has not been paid and Anston has doubts as to the solvency of the Customer. Anston retains discretion to determine whether the Customer is solvent in accordance with this clause.
8. Delivery and Acceptance
- All Goods shall be delivered by Anston to the Delivery Point.
- If Anston, or its servants or agents, obtains from any person at the Delivery Point a receipt of signed delivery docket for the Goods, Anston will be conclusively deemed to have delivered the Goods in accordance with these Terms regardless of whether the person who signed had the authority to accept delivery.
- If the Customer does not take delivery of the Goods on the date specified in an Agreement between Anston and the Customer or any other date as notified by Anston to the Customer (other than as a result of any act or omission by Anston), payment for the Goods (if not already paid in full) will be due on the date specified and interest will accrue at the Default Rate until payment is made.
- If Anston is unable to deliver the Goods to the Delivery Point, because the Delivery Point is unattended or for any other reason (other than as a result of any act or omission by Anston), Anston may at its option leave the Goods at the Delivery Point, in which case Anston will not be responsible for any subsequent Claim of any nature, or for the storage of the Goods. If the Goods are stored by Anston, the Goods will be stored at the Customer’s sole risk and the Customer shall pay or indemnify Anston for all costs and expenses incurred in or related to the storage of those Goods and Anston shall be at liberty to re-deliver them to the Customer from the place of storage at the Customer’s expense. Regardless of whether the Customer accepts the Goods at the Delivery Point or if the Goods are left at the Delivery Point in accordance with this clause, the risk in the Goods passes to the Customer at the earlier of the time they are left at the Delivery Point or at the time the Goods are collected from Anston. Title in the Goods remains with Anston until the Goods have been paid for in full by the Customer and the Customer has paid any other amounts it owes Anston.
- The Customer must ensure that the Delivery Point is easily accessible, safe and secure. If the Delivery Point is not easily accessible or safe as determined by Anston acting reasonably, and as a consequence extra costs are incurred by Anston in unloading the Goods, those extra costs will be charged to and payable by the Customer to Anston.
- If the Customer is not a Consumer:
- the Customer shall inspect the Goods upon delivery and will, within 7 days of delivery in the case of defects or missing items (short deliveries), and within 14 days of dispatch of the Goods from our premises (in the event we are not delivering the Goods), notify Anston of any defects, short deliveries or any failure to fulfill any quotation or order.
- The Customer will, within a reasonable time following the giving of a notice under clause 10(a), grant Anston access to the Goods in order to inspect for any alleged defects. In the event Anston disputes that there are defects in the Goods, the Customer must pay for the order in full and then has the option to commence the dispute resolution process.
- Should the Customer fail to notify Anston within the above specified period then the Goods shall be deemed to be in compliance with the order and free from any defect whatsoever.
- Any drawings or written or verbal descriptions of the Goods are general in nature, and actual Goods may vary from such descriptions. These descriptions are not warranties in relation to the Goods or their condition and, to the extent permitted by law, the Customer may not rely on these descriptions or Claim against Anston if Goods do not meet descriptions.
- If the Customer is a Consumer, Anston will provide a refund, or at the Consumer’s option, arrange for the repair or replacement of the Goods (where practicable), for any Goods which are or become faulty through no fault of the Consumer, are not fit for a stated purpose or a purpose the Consumer has made known to our sales personnel in writing, or do not match a description or sample. The Customer must retain a copy of the receipt as proof of purchase. The Customer must lodge any request for a refund within the later of any mandatory warranty period under any applicable law and 30 days after the risk in the Goods passes to the Customer.
10. Limitations of Liability
- Without limitation to any other clause in these Terms, the liability of Anston to the Customer for any reason related to the Goods shall be limited to the replacement or repair of the Goods, or the amount paid or payable by the Customer in respect of the particular Goods (at Anston’s option).
- Without limitation to any other clause in these Terms, Anston is not liable in any circumstances whatsoever for:
- any loss of profits or contracts suffered by the Customer; or
- any loss or damage suffered by the Customer in circumstances over which Anston has no control; or
- any other Loss.
- Until all monies have been paid by the Customer to Anston, title and property in all Goods supplied, notwithstanding the damage, destruction, or fixing to any asset or premises of any Goods, remain with Anston but the risk shall pass to the Customer upon delivery.
- Anston retains ownership of all Intellectual Property arising from or created in connection with this Agreement, including in the design of the Customer’s mould. Anston may deal with all Intellectual Property arising from or created in connection with this Agreement wholly in its discretion. Anston grants the Customer an express but revocable licence to use the mould designs for the project on the site for which it was intended, subject to the conditions that:
- No licence is granted or implied under this agreement other than the express licence granted in this clause;
- The licence may be revoked by Anston in writing if any Tax Invoice in connection with this agreement is overdue; and
- The Customer must not use the Intellectual Property gained in connection with this Agreement in a manner inconsistent with Anston’s ownership of the Intellectual Property, without prior written consent from Anston.
12. Indemnity & Release
- Except as provided under these Terms and to the extent permitted by law:
- the Customer:
- releases Anston and its officers, employees and agents from any and all Claims by the Customer or any of its officers, employees, agents or invitees;
- indemnifies Anston and its officers, employees and agents against any and all Claims made by third parties against Anston;
- indemnifies Anston and its officers, employees and agents against any Loss suffered by or incurred by the Customer, arising from any act, default, omission, negligence or breach of contract or otherwise, by the Customer or any of its directors, employees, agents or invitees, except to the extent (if any that) the Loss the subject of the Claim is caused by the fraudulent act or omission of Anston.
- the Customer:
- Anston is not liable for any Claim or any Loss arising from any event or cause beyond the control of Anston including but not limited to:
- any act or omission of the Customer, including any delay caused by the Customer;
- any problem caused by misuse, abuse, wear and tear or normal movement;
- goods or appliances made by others;
- any defect in, or problem caused by, work materials or goods supplied by the Customer; and
- any defect caused or contributed to by a failure of the Customer to follow any procedure recommended by Anston or by the manufacturer of any materials used by Anston in the provision of the Services.
- If GST is payable on a taxable supply made under, by reference to or in connection with a Supply Contract, the party providing the consideration for the taxable supply must also pay the GST Amount as additional consideration. This clause does not apply to the extent that the consideration for the taxable supply is expressly agreed to be GST inclusive. No payment of the GST Amount is required until Anston has provided a tax invoice or adjustment note as the case may be to the recipient.
- Any reference in the calculation of consideration or of any indemnity, reimbursement or similar amount to a cost, expense or other liability incurred by a party, must exclude the amount of any input tax credit entitlement of that party in relation to the relevant cost, expense or other liability. A party will be assumed to have an entitlement to a full input tax credit unless it demonstrates otherwise prior to the date on which the consideration must be provided.
Anston may in its absolute discretion, by written notice to the Customer, immediately terminate these Terms, if the Customer:
- Breaches any term of these Terms;
- Becomes insolvent/bankrupt in the opinion of Anston.
15. Difficulties in Completion
If, due to any act or omission by the Customer or any person other than Anston or its employees, contractors or agents, it becomes impossible or impracticable for Anston to complete the Services:
- All amounts payable by the Customer under these Terms immediately becomes due and payable; Anston may invoice the Customer for the balance amount which remains unpaid under these Terms, which sum shall be paid to Anston within 7 days of the date of the invoice; and/or Anston will not be responsible to complete the Services or provide any Goods until such time as it becomes possible and practicable to do so, nor shall it be responsible for any Loss occurring in the meantime.
16. Dispute Resolution
- If a dispute arises out of or relates to these Terms other than through application of the SOPA, the parties agree to act in good faith to resolve the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to litigation or arbitration. The mediator is to be appointed by Anston within 14 days of a party being given a notice of dispute by the other. The parties must bear the costs of the mediator equally.
- In the event the dispute is not resolved within 30 days of the appointment of the mediator, either party may institute legal proceedings against the other.
- Variation: To the extent permitted by law and the SOPA, Anston may vary the terms of these Terms at any time and will notify the Customer of the variation by providing written notice to the Customer.
- Entire Agreement: These Terms is the entire agreement between the parties in respect of the Goods/Services.
- Governing Jurisdiction: Each engagement for the provision of Goods/Services by Anston will be governed by and construed in accordance with Victorian law.
- Confidentiality: The Customer will ensure the confidentiality of the subject-matter contained within these Terms.
- Assignment: The Customer must not transfer or assign its rights under these Terms without the prior written consent of Anston. The Customer acknowledges and agrees that Anston may transfer, assign or otherwise dispose of its interest in these Terms without notice to the Customer.
- No oral explanation or information provided by a party to another affects the meaning or interpretation of these Terms or constitutes any collateral agreement, warranty or understanding.
- The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under these Terms.
- If a provision of these Terms is void or unenforceable it must be severed from these Terms and the provisions that are not void or unenforceable are unaffected by the severance.
- The rights and remedies of a party to these Terms are in addition to the rights or remedies conferred on the party at law or in equity.
- These Terms may be executed in any number of counterparts.
- The contra proferentem rule and other rules of construction will not apply to disadvantage Anston.
- Subject to clause 7(d)(i), time is in all cases and in every respect of the essence of these Terms.