Australian Composite Wood – Terms and Conditions of Sale
The following terms shall be incorporated into each contract entered into between the Customer and Australian Composite Wood Pty Ltd (ACW) trading as COEN Composite Wood, for the supply of Goods, except to the extent expressly varied by signed agreement in writing between them.
1. PRICE
1.1 The price shall be increased by:
(a) the amount of any GST and other taxes and duties which may be applicable; and
(b) the amount of any increase in the cost of any items (including any change in currency exchange rates) affecting the cost of supply, production and / or delivery of the Goods prior to the date of Delivery
1.2 A contract is created and the Customer is bound to pay the price when ACW accepts the Customer’s order in writing subject to clause 3.2, each accepted order shall constitute a separate contract. A quotation/estimate does not create a binding contract until the Customer places an order that is then accepted by ACW
1.3 Any estimates supplied to the Customer by ACW are based on information supplied by the Customer, unless otherwise specified are valid for 60 days from the date of issue and may be subject to such further conditions as are expressly set out in the estimate or pricing. The Customer acknowledges that they are responsible for the amount of Goods ordered (whether on an estimate or not) and any incorrect orders are subject to clause 10 of these Terms.
1.4 ACW reserves the right at any time to alter any price lists and any such alterations to any price list shall be effective from the date specified by ACW and shall apply to all orders accepted by ACW on or after that date.
1.5 Shipping / Courier Costs on this website are a guideline only. Due to the nature of our Goods, ACW reserves the right to reassess the cost of Freight depending on the number or weight of goods required.
1.6 All prices on this website are in Australian Dollars unless otherwise specified.
2. PAYMENT
2.1 Payment for orders is required prior to despatch of product unless the Customer has an account with ACW by way of a Credit Application Signed by Both Parties, in which case Payment is due 7 to 14 days following the date of Invoice.
2.2 ACW may impose a credit limit on the Customer’s account and alter the credit limit without notice. Where the credit limit is exceeded, ACW may refuse to supply Goods to the Customer.
2.3 The Customer may not withhold payment or make any deductions from or set off any amount against any amount owing without ACWs prior written consent.
2.4 Any disputes or credit requests by the Customer relating to an invoice issued by ACW for Goods supplied must be received in writing within 30 days from the date of invoice.
2.5 Any loyalty or volume discount applied to the Customer’s invoice is valid only if payment is made by due date, and ACW reserves the right to remove this discount after having notified the Customer of such action and payment not being received in full, within 5 business days of this notification.
2.6 A 35% deposit of the total order value is required by the Customer to ACW upon order acceptance by ACW. The remaining 65% of the total order value must be paid to ACW upon the goods landing in Australia. Goods will not be sent to the customer until this final 65% of total order value payment has been made.
3. DELIVERY
3.0 ACW will deliver the Goods to the delivery address as specified by the Customer in the order. Customer must inform ACW immediately if they have any restrictions in the delivery areas that will prevent a large truck gaining access to the delivery location. For all orders which are in stock, we aim to delivery within 1-7 days to site as required within Australia. For orders which need to be manufactured delivery is normally 6 – 7 weeks to site, within Australia. Customer representative must be present at the delivery address at the time the Goods are delivered. The representative must sign the delivery advice the driver of the delivery vehicle presents as proof of the delivery. ACW may at its sole discretion deliver the Goods even if the Customer’s representative is not present. If ACW fails to deliver a portion of the Goods by the estimated date or to deliver at all, the Customer is not entitled to terminate and refuse delivery of the balance of the Goods
3.1 Delivery shall be made either:
(a) at the premises of ACW when the goods are made available for despatch; or
(b) transported by the best possible means to the address stipulated on the purchase order form or in writing by way of an email If ACW arranges transportation, storage or insurance of the Goods for the Customer, ACW does this as the Customer’s Agent. Any liability or cost incurred by ACW in providing these services shall form part of the amount owing and shall be paid immediately by the Customer to ACW upon a claim being made.
3.2 ACW may deliver the Goods by instalments. Each instalment shall be treated as a separate contract subject to these Terms. Failure to fully deliver any instalment of the Goods shall not entitle the Customer to cancel any contract relating to any other instalment of the Goods.
3.3 Any time stated for delivery is an estimate only. Other than liability that cannot be excluded by law, ACW is not liable for any delay in delivery. Delivery dates are estimations based on current information and are liable to change in certain cases. Please use the estimate as a guide only to assist you in your planning. Please note that the delivery of ACW products will only be to the ground of the delivery address immediately by the closest loading area of the truck. Delivery charges are for one delivery only. If for any reason it is a failed delivery, additional delivery costs may be charged in full to customer. Scheduled deliveries can only be moved by client with a minimum of 3 days written notice. If the Goods are sold ex–factory, the Customer must, at its own cost and risk, collect the Goods within reasonable time.
3.4 If a customer chooses the incorrect Delivery Method on their Order, ACW reserves the right to alter the amount prior to despatching the order but will do so only with the approval of the customer.
4. RISK AND SECURITY
4.0 ACW will not accept alterations to Orders after 7 days or to those that are in production or completed, prior to the 7 days cancellation period. If the Customer cancels all or part of an Order within 7 days of the order being placed: (a) Before ACW has started production or preparation of the Goods, the Customer must pay ACW as liquidated damages an amount equal to 10% of the price of the Goods, or (b) After ACW has started preparing the Goods, the Customer must pay ACW as liquidated damages the full price of the Goods and / or tooling cancelled, less the current scrap value of the Goods as determined by ACW.
4.1 Risk of any loss, damage or deterioration of or to the Goods passes to the Customer on delivery
4.2 As security for all the Customer’s obligations under these Terms, the Customer grants to ACW a Security Interest in all the Goods ACW agrees to sell to the Customer under any contract, together with the Proceeds of such Goods, as security for payment of the Amount Owing and for the performance from time to time of the Customer’s other obligations to ACW under the relevant contract, and such security shall continue until all sums owing by the Customer to ACW in respect of any Goods supplied have been paid in full.
4.3 Subject to clause 4.2 and the provisions of this clause 4, legal and equitable ownership of the Goods remains with ACW and does not pass to the Customer until the Customer pays the Amount Owing and any other monies owing by the Customer to ACW from time to time (whether in relation to any contract entered into under these Terms or on any other account whatsoever).
4.4 While legal or equitable ownership of the Goods remains with ACW, ACW retains the right to enter the premises or land where the Goods are held or stored and sever and remove them, as agent for the Customer, without being liable or responsible for any damage caused in doing so.
4.5 In the event that the Goods become fixtures incorporated into any realty, ACW retains an equitable interest in the land.
4.6 The security interest created by these Terms is not discharged nor the Customer’s obligation affected by the administration, insolvency, receivership or liquidation of the Customer.
5. WARRANTIES AND LIABILITIES
5.1 The only warranties or producer statements agreed to by ACW relating to the Goods are those confirmed by ACW in writing
5.2 Except as set out in this clause 5.2, the Customer is not entitled to return the Goods for any reason. The Goods will be deemed accepted unless the Customer notifies ACW in writing of any defects, errors or discrepancies within seven (7) days following Delivery, provided ACW is able to inspect the Goods to confirm the defect, error or discrepancy. For Goods that the Customer is entitled to reject in accordance with this clause, ACW’s liability is strictly limited to either repairing or replacing the Goods, or refunding the price of the Goods, provided that ACW will not be liable for Goods that have been tampered with or modified without the approval of ACW or which have not been stored in a proper manner.
5.3 Except for the warranties referred to in clause 5.1, but subject to clause 5.6, to the maximum extent permitted by law, ACW expressly excludes all other conditions, warranties, guarantees, descriptions, representations, conditions as to fitness or suitability or fitness for any purpose, tolerance to any conditions, merchantability, appearance, safety, durability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise.
5.4 Notwithstanding any other provision of these Terms, other than clause 5.6, under no circumstances shall ACW be liable to the Customer or any other person (whether in contract, tort, including negligence, statute or otherwise) for any:
(a) loss of profits;
(b) consequential loss or damage;
(c) indirect loss or damage; or
(d) special loss or damage of any kind.
5.5 To the maximum extent permitted by law, ACW’s total liability (whether in contract, statute, tort, including negligence or otherwise howsoever arising) for any Claim by the Customer, its agents, employees or subcontractors, or any other person, relating to or arising from the supply of Goods or any quotation or estimate given shall not exceed the price of the Goods to which the Claim relates.
5.6 If the Goods are acquired by the Customer for business purposes, the Consumer Guarantees Act 1993 does not apply to the sale of those goods and the parties agree that sections 9, 12A, 13 and 14 of the Fair Trading Act 1986 do not apply. Nothing in these Terms is intended to contract out the provisions of the Consumer Guarantees Act 1993 or the Fair Trading Act 1986, except to the extent permitted by those Acts
6.INSTALLATION SERVICES
6.1 Where ACW has agreed to perform installation Services, the Customer shall provide ACW, its employees, agents and subcontractors with suitable access to the premises in all weather conditions during normal working hours for any vehicles and equipment that ACW may need for the installation, together with electricity and any other amenities reasonable required to perform such Services.
6.2 The Customer shall ensure that the premises:
(a) comply with all applicable laws (including those relevant to the health and safety of ACWs’ installation personnel); and
(b) are in a state ready for the installation Services and are structurally sound (including the foundations)
6.3 The Customer acknowledges and agrees that the Customer is responsible for:
(a) obtaining at its own cost, any necessary permits, licences, consents or approvals (including any building consents)
(b) accepting the installation of the Goods prior to any claddings or linings being installed (if applicable) or prior to any other work being performed that may restrict access to the installed Goods
(c) ensuring that any other trades people carrying out works in connection with the Goods that the Customer is responsible for are appropriately qualified and perform such works in accordance with all applicable laws and industry standards;
(d) ensuring that any other trades people that the Customer is responsible for at the premises co-operate with ACW; and
(e) providing safe and secure on-site storage for materials and equipment that ACW will use in providing the installation Services.
6.4 Where the Customer requests that ACW engage an independent subcontractor to carry out installation services (“Customer Subcontractor”), the Customer acknowledges and agrees:
(a) that the Customer appoints ACW as the Customer’s agent to enter into a contract with the Customer Subcontractor for the installation services on such terms as ACW deems appropriate;
(b) that such installation services are not considered “Services”;
(c) that the Customer is responsible for accepting the quality of the installation services and ACW has no liability (whether in contract, statute, tort or otherwise howsoever arising) for the installation services performed by the Customer Subcontractor;
(d) that the Customer will fully reimburse ACW for the costs of the Customer Subcontractor and ACW is entitled to charge the Customer a handling fee for enabling the Customer to use the Customer’s ACW account for billing purposes to pay the Customer Subcontractor; and
(e) to indemnify ACW against any loss, cost or liability suffered or incurred by ACW in respect of any Claim by a third party made against ACW arising out of its agency appointed under this clause.
7. CUSTOMER INDEMNITY
The Customer agrees to indemnify ACW from and against any loss, cost or liability suffered or incurred by ACW in respect of any Claim made against ACW to the extent caused or contributed to by the Customer (or any person the Customer is responsible for).
8. DEFAULTS
8.1 If the Customer does not pay the Amount Owing by the due date:
(a) ACW may charge and the Customer must pay, default interest at the rate of 2.5% per month calculated daily on the Amount Owing from the due date until payment is received in full (both prior to and following any judgement obtained), and
(b) any rebates or discounts may be cancelled (whether or not previously credited)
8.2 If an Event of Default occurs:
(a) ACW may suspend or terminate any contract, and
(b) any Amount Owing shall immediately become due and payable notwithstanding the due date for payment has not arisen, and
(c) ACW is entitled to recover from the Customer all costs that ACW may reasonable incur in attempting to collect the Amount Owing (including actual legal costs and expenses and costs of collection) and any other moneys owing by the Customer to ACW from time to time, whether in relation to any contract or on any other account whatsoever.
9. PRIVACY POLICY
9.1 The Customer understands that ACW may ask for personal information about the Customer so as to use credit reporting services to assess the creditworthiness of the Customer from time to time. The Customer acknowledges that:
(a) Credit Reporting Agencies will give ACW information about the Customer for that purpose
(b) ACW may give the Customer’s personal information to the Credit Reporting Agencies and those agencies may hold that information on their systems and use it to provide credit reporting services
(c) when other users of the Credit Reporting Agencies use those agencies’ services, the agency may give the information to those users;
(d) ACW may use credit reporting services in the future for purposes related to the provision of credit to the Customer. This may include using a Credit Reporting Agency’s monitoring services to receive updates if any of the information about the Customer changes; and
(e) If an Event of Default occurs, information about that Event of Default may be given to a Credit Reporting Agency and the Credit Reporting Agency may give information about the Event of Default to other users of the credit reporting services.
9.2 The Customer understands that ACW may collect personal information to provide them with Goods, Services and Information and to notify the Customer about new products and services. This information is collected when:
(a) the Customer discloses information on the ACW website when ordering Goods and Services;
(b) the Customer emails ACW for information
(c) the Customer fills out a Credit Application
9.3 Except as set out in clause 8.1, ACW will not sell, publish or give away your personal information to others unless required by law
10. PRODUCT RETURNS
10.1 ACW, at its absolute discretion, may allow the Customer to return new Goods if the Goods and Packaging remain in a re-saleable condition. ACW reserves the right to charge a return fee of 10% of the price of such Goods with a minimum return fee of $40.
10.2 All goods returned due to Cancellation or Incorrectly Ordered with be returned at the Customers Expense and subject to the Return Fee as stated in Clause 10.1
10.3 Products that are “made to order”, have a “No Return” policy attached to them.
10.4 Products with a sanded finish may present a water mark due to the build-up of grime / dust from manufacture or from the products being on site. It is recommended that a high-pressure washer is used to remove these marks, or they will dissipate after a period of time. Such marks do not warrant a product return.
11. EXPORT CONDITIONS
11.1 The cost of Export outside of Australia will be by negotiation between Customer and ACW. ACW will not be liable for any import fees, taxes or duty at the Port of Delivery.
12. ENTIRE AGREEMENT AND NO RELIANCE
12.1 These Terms (together with any documents expressly referred to in these Terms) contain the entire agreement and understanding between the parties and supersede all prior agreements, arrangements and understandings (both oral and written) between the parties relating to the subject matter of these Terms. No other terms contained in any order or document submitted by the Customer (whether in writing, verbally or by Electronic Data Interchange (EDI) or any other arrangement between the parties, shall apply unless otherwise expressly agreed in writing by the parties.
12.2 The Customer acknowledges and agrees that the Customer:
(a) does not purchase the Goods on the basis of, and does not rely upon, any statement or representation (whether negligent or innocent) or warranty made or given by ACW, except as expressly set out in these Terms or confirmed in writing and
(b) shall be responsible for ensuring that all and any instructions, recommended uses, applications and installation methods are followed for the Goods and any cautions and/or warnings observed.
13. WAIVER
If ACW exercises or fails to exercise any right or remedy available to it, this shall not prejudice ACWs rights in exercising that or any other right or remedy unless expressly waived by ACW in writing.
14. REVIEW OF TERMS
ACW reserves the right to review and amend any of these Terms at any time. Any change will take effect on orders placed after the date on which ACW publishes the revised Terms on the ACW website (www.australiancompositewood.com.au) except where the amended Term is found by any court or administrative body of competent jurisdiction, or otherwise considered by ACW to be invalid, unenforceable or illegal (whether as between the parties to these Terms or in relation to any third party) in which case the last previously valid, enforceable or legal Term shall continue to apply.
15. DEFINITIONS
15.1 “Amount Owing” means the price charged by ACW for the Goods, together with any other sums which ACW is entitled to charge under these Terms that remain unpaid
15.2 “ACW” means Australian Composite Wood Pty Ltd.
15.3 “Claim”
(a) means any demand or assertion of right to compensation or other legal or equitable remedy (whether in contract, tort, including negligence, statute or otherwise) arising out of or relating to the supply of Goods;
(b) includes any proceeding in any tribunal, court or other forum arising out of or relating to the supply of Goods
15.4 “Credit Reporting Agency” means any credit reporting agency engaged by ACW
15.5 “Customer” means the person purchasing the Goods from ACW pursuant to these Terms, including that person’s successors and permitted assigns.
15.6 “Customer Subcontractor” has the meaning given in clause 6.4 of these Terms
15.7 “Delivery” means delivery of the Goods in accordance with clause 3 of these Terms
15.8 An “Event of Default” means an event where:
(a) the Customer fails to comply with these Terms or any other contract with ACW, and does not remedy that failure within 5 working days of receiving notice from ACW advising them of the failure; or
(b) the Customer commits an act of bankruptcy; or
(c) the Customer enters into any composition or arrangement with its creditors; or
(d) if the Customer is a company:
(i) the Customer does anything which would make it liable to be put into liquidation, or
(ii) a resolution is passed or an application is made for the liquidation of the Customer; or
(iii) a receiver or statutory or official manager is appointed over all or any of the Customer’s assets or the Customer, its board or shareholders is considering appointing an administrator or liquidator; or
(iv) an administrator is appointed to the Customer;
(v) if anything analogous to or having similar effect to any of the other events arises.
15.9 “Goods” means all goods ordered by the Customer and supplied by ACW under these Terms (as detailed on each invoice issued to the Customer)
15.10 “Person” includes a corporation, association, firm, company, partnership or individual
15.11 “Price” means the purchase price of the Goods and any costs payable by the Customer under clauses 1 and 3.1 of these Terms.
15.12 “Services” means any services performed by ACW (its employees, agents or subcontractors) as part of supplying the Goods, including the installation of any Goods.
15.13 “Terms” means these ACW standard terms and conditions of sale.
NOTES:
Fitting Instructions – Important – Please make sure that prior to receipt of your order, you download the latest fitting instructions from our website. Take particular care to store the Goods in a flat and dry area out of direct sunlight. We appreciate your business and hope you are very happy with the end result. If there is anything we can do to improve, or you would like to drop us some pictures of your new project, please email us at craig@coen.com.au