- INTERPRETATION
1.1 Unless otherwise inconsistent with the context the word “person” shall include a corporation:
1.2 “goods” shall include services.
1.3 Words importing the singular number shall be deemed to include the plural and vice versa. Words importing the male gender shall be deemed to include the female and neuter gender and vice versa.
1.4 “Timber Recycling Pty Ltd T/A Recycled Timbers” shall mean Timber Recycling Pty Ltd T/A Recycled Timbers, its successors and assigns.
1.5 “customer” shall mean the person who is purchasing the goods.
1.6 “GST” means any goods and service tax.
- OFFER AND ACCEPTANCE
2.1 Any quotation made by Timber Recycling Pty Ltd T/A Recycled Timbers is not an offer to sell or to provide goods. Timber Recycling Pty Ltd T/A Recycled Timbers shall not be bound by any order given in pursuance of any quotation until it is accepted in writing. All orders are subject to acceptance by Timber Recycling Pty Ltd T/A Recycled Timbers within thirty (30) days of receipt by Timber Recycling Pty Ltd T/A Recycled Timbers of the order. These terms and conditions shall be deemed to be incorporated into any agreement between Timber Recycling Pty Ltd T/A Recycled Timbers and the customer. Any terms and conditions contained in any order, offer, acceptance or other document of the customer and all representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent permitted by law.
2.2 Insofar as goods or services supplied by Timber Recycling Pty Ltd T/A Recycled Timbers are not of a kind ordinarily acquired for personal, domestic or household consumption, the liability for breach of a condition or warranty, implied into this contract by the Sale of Goods Act or the Trade Practices Act (other than a condition implied by Section 69) is limited:
(a) in the case of goods to any one of the following as determined by Timber Recycling Pty Ltd T/A Recycled Timbers:
(i) the refund of the price paid by the customer for the goods or the issue of a credit note for such amount; or
(ii) the replacement of the goods or the supply of equivalent goods; or
(iii) the repair of the goods; or
(iv) the payment of the cost of replacing the goods or at acquiring equivalent goods; or
(v) the payment of the costs of having the goods repaired;
(b) in the case of services to any one of the following as determined by Timber Recycling Pty Ltd T/A Recycled Timbers;
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
- DELIVERY
3.1 Any date quoted for delivery (“the quoted date”) is an estimate only and unless a guarantee shall be given by Timber Recycling Pty Ltd T/A Recycled Timbers in writing providing for liquidated damages for failure to deliver by the quoted date Timber Recycling Pty Ltd T/A Recycled Timbers shall not be liable to the customer for any loss or damage howsoever arising even if arising out of the negligence of Timber Recycling Pty Ltd T/A Recycled Timbers for failure to deliver on or before the quoted date. The customer shall accept and pay for goods and any GST if and when tendered notwithstanding any failure by Timber Recycling Pty Ltd T/A Recycled Timbers to deliver by the quoted date. Written advice to the customer that goods are ready for delivery whether in whole or in part shall constitute tendering and the terms of payment shall apply.
3.2 Timber Recycling Pty Ltd T/A Recycled Timbers shall not be liable to any customer or any other party for direct or indirect or consequential injury, loss or damage whatsoever by reason or any delay in delivery whether the same is due to the negligence of Timber Recycling Pty Ltd T/A Recycled Timbers or any other party, strike or any other industrial action be it of Timber Recycling Pty Ltd T/A Recycled Timbers or other party or any other cause whatsoever.
3.3 Timber Recycling Pty Ltd T/A Recycled Timbers reserves the right to deliver by instalments. If delivery is made by instalments the customer shall not be entitled:
- (a) to terminate or cancel the contract; or
- (b) to any claim, loss or damage howsoever arising failure by Timber Recycling Pty Ltd T/A Recycled Timbers to deliver any instalments on or before the quoted date.
3.4 It is agreed that Timber Recycling Pty Ltd T/A Recycled Timbers shall not be responsible for the delay in delivery caused by, or in any way incidental to an act of God, war, fire, breakages of machinery, strikes or arising out of any other unexpected exceptional cause, or any cause beyond reasonable control of Timber Recycling Pty Ltd T/A Recycled Timbers.
3.5 Any quotation containing a provision to supply goods “ex stock” is subject to fulfilment of prior orders at the date of receipt of the customer’s order.
3.6 If the customer intends to pay for the goods via Cash on Delivery (C.O.D.) the goods will not be unloaded from the delivery vehicle or otherwise released to the customer unless payment has been received in full.
3.7 If the customer intends to pay for the goods via a method other than C.O.D. the goods will not be dispatched from Timber Recycling Pty Ltd T/A Recycled Timbers’ warehouse or otherwise released to the customer until payment has been received in full.
- PAYMENT
4.1 The customer shall pay the price of any goods supplied by Timber Recycling Pty Ltd T/A Recycled Timbers and any GST in addition to the price.
4.2 Unless otherwise agreed in writing, the customer must attend to payment for the goods in full prior to delivery.
4.3 Payment may be made by any of the following methods:
- (a) Cash
- (b) Cheque (provided that the full name, address and telephone number of the customer are printed on the back of the cheque)
- (c) Credit Card – 1.5% surcharge applied (only Visa and Mastercard are accepted)
- (d) Electronic Funds Transfer (please refer to your quote, order or tax invoice for bank account details)
4.4 This term as to the payment shall be of the essence of the contract.
4.5 Timber Recycling Pty Ltd T/A Recycled Timbers accepts payment via C.O.D. subject to Clause 3.6
- TITLE
5.1 Notwithstanding the delivery of the goods or part thereof, the goods remain the sole and absolute property of Timber Recycling Pty Ltd T/A Recycled Timbers as full legal and equitable owner until such time as the customer shall have paid Timber Recycling Pty Ltd T/A Recycled Timbers the full price together with the full price of any goods then the subject of any other contract with Timber Recycling Pty Ltd T/A Recycled Timbers.
5.2 The customer acknowledges that he receives possession of and holds goods delivered by Timber Recycling Pty Ltd T/A Recycled Timbers solely as bailee for Timber Recycling Pty Ltd T/A Recycled Timbers until such time as the full price including any GST thereof is paid to Timber Recycling Pty Ltd T/A Recycled Timbers together with the full price including any GST of any goods then the subject of any other contract with Timber Recycling Pty Ltd T/A Recycled Timbers and such payment has cleared in Timber Recycling Pty Ltd T/A Recycled Timbers’ bank account.
5.3 Until such time as the customer becomes the owner of the goods, he will;
(a) store them on the premises separately;
(b) ensure that the goods are kept in good and serviceable condition;
(c) secure the goods from risk, damage and theft; and
(d) keep the goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the customer.
5.4
(a) Until the goods are paid for in full including any GST, the customer may sell the goods however must hold the proceeds of any sale in a separate bank account and upon trust for Timber Recycling Pty Ltd T/A Recycled Timbers The customer shall account to Timber Recycling Pty Ltd T/A Recycled Timbers from this fund for the full price of the goods including any GST.
(b) Should the customer die, stop payment or call a meeting of its creditors or become insolvent or subject to the bankruptcy laws, or being a company, appoints an administrator or calls a meeting for the purpose of or to go into liquidation or has a winding-up application presented against it or has a receiver appointed, Timber Recycling Pty Ltd T/A Recycled Timbers may at its option notwithstanding its waiver of such default or failure and without prejudice to its other rights under this contract, suspend or cancel this contract or require payment in cash before or on delivery or tender of goods notwithstanding the terms of payment previously specified, or may repossess and take over the goods and dispose of the same in its own interest without prejudice to any claim it may have for damages for any loss resulting from such resale.
(c) Until full payment in cleared funds is received by Timber Recycling Pty Ltd T/A Recycled Timbers as well as all other amounts owing to Timber Recycling Pty Ltd T/A Recycled Timbers under any other contract, in addition to any rights Timber Recycling Pty Ltd T/A Recycled Timbers may have under Chapter 4 of Personal Properties and Securities Act 2009 (Cth) (“PPSA”), Timber Recycling Pty Ltd T/A Recycled Timbers shall be entitled at any time until title in and to the goods passes to the customer to demand the return of the goods and shall be entitled without notice to the customer and without liability to the customer to enter any premises occupied by the customer (or any premises where the customer is holding the goods) in order to search for and remove the goods and for this purpose the customer irrevocably licences Timber Recycling Pty Ltd T/A Recycled Timbers to enter such premises and also indemnifies Timber Recycling Pty Ltd T/A Recycled Timbers from and against all loss suffered or incurred by Timber Recycling Pty Ltd T/A Recycled Timbers as a result of exercising its rights under this clause. If there is any inconsistency with Timber Recycling Pty Ltd T/A Recycled Timbers rights under this clause 5.4(c) and its rights under the PPSA this clause 5.4(c) prevails.
(d) The customer acknowledges and warrants that Timber Recycling Pty Ltd T/A Recycled Timbers has a security interest for (the purposes of the PPSA) in the goods and any proceeds described in clause 5(a) until title passes in accordance with this clause 5. The customer must do anything reasonably required by Timber Recycling Pty Ltd T/A Recycled Timbers to enable Timber Recycling Pty Ltd T/A Recycled Timbers to register its security interest with the priority that Timber Recycling Pty Ltd T/A Recycled Timbers requires and to maintain that registration.
(e) The security interest under this clause 5 attaches to the goods when the customer obtains possession of the goods and the parties confirm that they have not agreed that any security interest arising under this clause 5 attaches at any later time.
(f) If title in and to the goods has not passed to the customer in accordance with this clause 5, the customer’s implied right to sell the goods shall immediately terminate upon the happening of any event of default by the customer.
5.5 Timber Recycling Pty Ltd T/A Recycled Timbers’ rights under this Clause 5 secure Timber Recycling Pty Ltd T/A Recycled Timbers’ right to receive the price of the Goods and all amounts owing to Timber Recycling Pty Ltd T/A Recycled Timbers under any other contract.
5.6 All payments received from the customer must be applied by Timber Recycling Pty Ltd T/A Recycled Timbers in accordance with section 14(6)(c) of the PPSA.
5.7 If the customer does not pay for any goods on the due date then Timber Recycling Pty Ltd T/A Recycled Timbers is hereby irrevocably authorised by the customer to enter the customer’s premises (or any premises under the control of the customer or as agent of the customer in which the goods are stored) and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence, assault and battery or payment of any compensation to the customer whatsoever.
5.8 On retaking possession of the goods Timber Recycling Pty Ltd T/A Recycled Timbers may elect to refund to the customer any part payment that may have been made less any charge for recovery of the goods, or to resell the goods.
- RISK
Unless otherwise agreed in writing, risk in the goods shall pass to the customer at the time when the goods have been placed on the vehicle which is to effect delivery from Timber Recycling Pty Ltd T/A Recycled Timbers store or warehouse. The goods shall remain at the customer’s risk at all times unless and until Timber Recycling Pty Ltd T/A Recycled Timbers retakes possession of the goods pursuant to these terms and conditions, at which point the risk shall pass back to Timber Recycling Pty Ltd T/A Recycled Timbers when the goods have been placed on the vehicle which is to effect the repossession of the goods.
- CLAIMS AND RETURNS
7.1 Subject to clause 2.2 herein, Timber Recycling Pty Ltd T/A Recycled Timbers shall not be liable for any loss or damage whatsoever and however arising whether direct or indirect or consequential or in respect of any claim whenever and however made for any loss or damage, deterioration, deficiency or other fault or harm in the goods provided by or on behalf of or in any arrangement with Timber Recycling Pty Ltd T/A Recycled Timbers or occasioned to the customer or any third party or to his or their property or interest and whether or not due to the negligence of Timber Recycling Pty Ltd T/A Recycled Timbers, its servants or agents.
7.2 As soon as any of the facts or matters which form any part of any claim or complaint whatsoever become known to the customer, the customer shall within fourteen (14) days notify Timber Recycling Pty Ltd T/A Recycled Timbers in writing of the same.
7.3 Timber Recycling Pty Ltd T/A Recycled Timbers shall not be liable in any circumstances for any:
(a) defects or damages caused in whole or in part by misuse, abuse, neglect, improper application, repair or alteration (other than by Timber Recycling Pty Ltd T/A Recycled Timbers) or accident;
(b) any transport installation removal, labour or other costs;
(c) details in goods not manufactured by it but Timber Recycling Pty Ltd T/A Recycled Timbers will endeavour to pass on to the customer the benefit of any claim made by Timber Recycling Pty Ltd T/A Recycled Timbers and accepted by the customer and the benefit of any claim made by Timber Recycling Pty Ltd T/A Recycled Timbers and accepted by the manufacturer of such goods under a warranty given by the manufacturer of such goods provided that nothing contained in this subparagraph shall limit the rights of the customer to proceed against Timber Recycling Pty Ltd T/A Recycled Timbers pursuant to the Trade Practices Act; and
(d) technical advice or assistance given or rendered by it to the customer or not in connection with the manufacture construction or supply of goods for or to the customer.
7.4 Goods supplied outside the agreed standard and / or description may be refunded at the discretion of Timber Recycling Pty Ltd T/A Recycled Timbers. Goods supplied within standard / or agreed description are not liable for refunds. At the discretion of Timber Recycling Pty Ltd T/A Recycled Timbers goods may be accepted for refund if they are in a resaleable condition. Should this occur a 15% restocking fee will be applicable.
- FORCE MAJEURE
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Timber Recycling Pty Ltd T/A Recycled Timbers, Timber Recycling Pty Ltd T/A Recycled Timbers is unable to perform in whole or in part any obligation under this contract, Timber Recycling Pty Ltd T/A Recycled Timbers shall be relieved of that obligation under this contract to the extent and for the period that it is so unable to perform and shall not be liable to the customer in respect of such inability.
- DEFAULT
Upon the occurrence of default by the customer in compliance with the terms herein:
9.1 Timber Recycling Pty Ltd T/A Recycled Timbers may at its discretion withhold further supplies of goods or cancel the contract, or vary the terms of this contract without prejudice to its rights hereunder PROVIDED HOWEVER that Timber Recycling Pty Ltd T/A Recycled Timbers may at any time and from time to time upon such terms as it may determine waive any of its rights under this clause, but without prejudice to its rights thereafter of any of the events herein before referred to or upon the continuation after any such waiver of any state of affairs the subject of such waiver.
9.2 The customer hereby authorises Timber Recycling Pty Ltd T/A Recycled Timbers or its agent to review its books and records, including all bank statements and other bank records, to determine whether the customer is able to pay its debts as and when they fall due and the customer further irrevocably grants to Timber Recycling Pty Ltd T/A Recycled Timbers a licence to enter upon the customer’s premises for such purpose.
9.3 The customer shall pay to Timber Recycling Pty Ltd T/A Recycled Timbers interest at the rate of 1.5% per month on daily balances in respect of any amounts as may from time to time be overdue until paid and such money together with all interest shall be recoverable forthwith from the customer as a liquidated debt.
9.4 Without prejudice to any other right or remedy the customer shall indemnify Timber Recycling Pty Ltd T/A Recycled Timbers against any costs, fees, charges and disbursements (inclusive of any GST)charged by any mercantile or collection agent or solicitor engaged for the purpose of the collection or recovery of monies due and payable by the customer to Timber Recycling Pty Ltd T/A Recycled Timbers on an indemnity basis and all such costs shall be recoverable as a liquidated debt and, at the option of Timber Recycling Pty Ltd T/A Recycled Timbers, may be recovered as a Minor Debt Claim.
9.5 The customer shall pay to Timber Recycling Pty Ltd T/A Recycled Timbers an administration fee of $50.00 on the occurrence of every event of default as a liquidated debt being a genuine pre-estimate of the loss of Timber Recycling Pty Ltd T/A Recycled Timbers in respect of such act of default, however such fee shall not preclude Timber Recycling Pty Ltd T/A Recycled Timbers from claiming any higher amount from the customer for any loss occasioned by such act of default.
- CHANGE OF OWNERSHIP
The customer agrees to notify Timber Recycling Pty Ltd T/A Recycled Timbers in writing of any change of ownership of the customer or its business, or of directorships in the case of a corporate customer, or of any other change whatsoever affecting this agreement within seven (7) days from the date of such change and indemnifies Timber Recycling Pty Ltd T/A Recycled Timbers against any loss or damage incurred by it as a result of the customer’s failure to notify Timber Recycling Pty Ltd T/A Recycled Timbers of any change.
- LIEN AND CHARGE
11.1 The customer hereby acknowledges and agrees that Timber Recycling Pty Ltd T/A Recycled Timbers has a lien over all goods in it’s possession belonging to the customer to secure payment of any or all amounts outstanding from time to time.
11.2 The customer hereby charges all property of the customer, both present and future, in respect of any monies that may hereinafter be owing to Timber Recycling Pty Ltd T/A Recycled Timbers under this contract by the customer or otherwise and hereby consents to the lodgement of a caveat over the title to any such real property, noting the interest created by this charge and for such purpose authorises Timber Recycling Pty Ltd T/A Recycled Timbers or its solicitors to execute any consent form as its attorney for the purpose of registering such a caveat.
- CONFIDENTIALITY
Subject to section 275(7) of the PPSA, neither party will disclose the information of the kind mentioned in section 275(1) of the PPSA.
- NOTICES UNDER THE PPSA
Timber Recycling Pty Ltd T/A Recycled Timbers does not need to give the customer any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.
- JURISDICTION
14.1 This contract for the supply of the goods is deemed to have been entered into in the State of New South Wales. Any legal action arising out of or in respect of the contract and/or the interpretation thereof shall be brought only in the Courts of Sydney in the State of New South Wales and the customer irrevocably submits itself to the jurisdiction of the Courts of Sydney in the State of New South Wales.
14.2 If the subject matter of any dispute arising hereunder is within the jurisdiction of the New South Wales Building Tribunal then the customer hereby elects not to have such dispute determined in the New South Wales Building Tribunal but instead to have such dispute heard and determined either in the Magistrates, District or Supreme Court according to the jurisdiction of each such court.