GERFLOR AUSTRALASIA PTY LTD ACN 006 551 168
KENBROCK FLOORING PTY LTD ACN 007 230 079
TERMS AND CONDITIONS OF ORDER AND SUPPLY (NO INSTALLATION)
November 2022
1. DEFINITIONS
“Carrier” means a carrier nominated to take delivery of the Products
pursuant to clause 3.2
"Consignment Address" means the address to which the Products
will be delivered, as stated in an Order or as otherwise agreed
between the parties.
"Customer" refers to the person who places an order with
Supplier for the Products, including that person's successors and
permitted assigns.
“F.O.B.” means that all the freight charges and insurance in
respect of the products to the Consignment Address will be to
the account of Customer.
“Loss” means any loss, liability, damage, expense or cost whatsoever
and includes (without limitation) indirect or consequential loss or
damage or loss of profits.
"Order" means an order for the Products which is placed with
Supplier in accordance with these Terms and Conditions.
"Products" means the products ordered by the Customer
from Supplier as specified in an Order and accepted by
Supplier including, without limitation, made or part-made
samples.
"Related Body Corporate" has the same meaning as in the
Corporations Law.
"Supplier" means either Gerflor Australasia Pty Ltd ACN 006 551
168 or Kenbrock Flooring Pty Ltd ACN 007 230 079, as specified
in the Order.
"Terms and Conditions" means these Terms and Conditions of
Order and Supply.
2. INTERPRETATION
2.1 These Terms and Conditions, together with the applicable Order,
form the entire agreement between Supplier and Customer.
2.2 Notwithstanding clause 2.1, these Terms and Conditions are
subject to the terms of any credit arrangement between Supplier
and the Customer, including the provision of a deed of guarantee
and indemnity.
2.3 In so far as it may be applicable, the Sale of Goods (Vienna
Convention) Act 1987 (Vic) and the United Nations Convention
on Contracts for the International Sale of Goods shall not apply
to any transaction contemplated under these Terms and
Conditions.
2.4 The Customer, by signing the acceptance provisions below and
returning the same to Supplier, or by placing any Order after
receiving these Terms and Conditions from Supplier or after the
day on which these Terms and Conditions are published by
Supplier on its website, whichever occurs first, acknowledges
and accepts that these Terms and Conditions will apply in respect
of all Orders placed by it for the supply of Products entered into
by the Customer with Supplier thereafter unless expressly
provided for in writing to the contrary by Supplier.
3. QUOTATIONS AND ORDERING OF PRODUCTS
3.1 Quotations issued by Supplier are valid only for the period
indicated on the quotation or for the applicable ordering
period, whichever expires first.
3.2 Any quotation issued by Supplier is an invitation to treat only
and shall not constitute an offer to sell by Supplier. Orders are
subject to acceptance by Supplier ("Order Confirmation").
Supplier reserves the right in its absolute discretion to accept
or reject any offer made by the Customer on the basis of any
quotation without assigning any reason therefor.
3.3 Unless otherwise agreed by Supplier, Orders must be in
writing. Supplier reserves the right to request a Customer or
proposed Customer to provide such additional information as
Supplier reasonably requires in connection with any Order or
proposed Order.
3.4 The Order Confirmation will acknowledge the particulars of the
Order, including the estimated delivery date. No Order shall
be binding on Supplier until Supplier issues an Order
Confirmation. A contract between the parties comes into effect
upon Order Confirmation.
3.5 Subject to clause 3.10, Supplier will use its best endeavours to
make delivery on the estimated delivery date identified in the
Order Confirmation PROVIDED HOWEVER that Supplier shall
not be liable to the Customer for any failure to deliver all or
any of the Products on the said delivery date nor will such
failure entitle the Customer to cancel or terminate the Order
or any part thereof.
3.6 Any description of the Products by Supplier whether verbally
in an Order Confirmation or in any other documents or
literature generated by Supplier is given by way of
identification only and the use of such description shall not
constitute description sale by description.
3.7 Any sample of Products provided by Supplier, whether before
or after the acceptance by Supplier of any Order, is provided
by way of general example only and shall not constitute a sale
by sample.
3.8 Supplier shall not be liable to the Customer for any Losses or
amount whatsoever and howsoever arising incurred as a result
of the cancellation of an Order or any part thereof by Supplier
beyond a liability to refund the deposit or return any security
provided by the Customer where such liability is due to the
inability by Supplier to supply the Products within a reasonable
time of the estimated delivery date(s), regardless of whether
such delay is caused by force majeure.
3.9 Subject to clause 3.10, Customer acknowledges that variations
consequent upon review of specifications, materials and/or
source of Products may occur from time to time. Customer
hereby waives any right to receive details or information
concerning the reviews or the implementation of those reviews
or both, and agrees to accept the Products subject to the
varied specifications, materials and/or source of Products.
3.10 Additional terms apply to the following Orders: (i) Orders for
Products of a quantity greater than 2,000 square metres; (ii)
Orders of a dollar value greater than the amount set by
Supplier from time to time (whether or not delivery of such
Order may by written agreement with Supplier be on call by
reason of an unfixed delivery date, delivery by instalments, or
otherwise); (iii) Orders for a non-stock line; (iv) Orders for
"made to order goods". The additional terms are as follows:
(a) As a condition of acceptance of the Order by Supplier,
Customer must pay a deposit equal to 30% of the
Order value or such other amount as may be specified
by Supplier, as cleared funds;
(b) Customer must provide such further security for the
payment of the anticipated balance of the value of the
Order as Supplier may require prior to production
and/or delivery of any Products;
(c) Except as permitted under any non-excludable law,
the Customer will not be entitled to vary or cancel the
Order once it is confirmed by Supplier;
(d) Without limiting the rights of Supplier under these
Terms and Conditions or at law, any deposit paid by
a Customer will be forfeited in the event that (i) the
Order is reduced by equal to or more than 10% of
the value of the Order, or (ii) delivery is refused
of the whole or part of the Order, or (iii) the Order is
cancelled by the Customer (whether by agreement or
otherwise) or purportedly cancelled or rescinded by
the Customer, or (iv) there is any other breach by
the Customer of these Terms and Conditions or
other terms and conditions applicable to the Order;
(e) Without limitation of any other rights or any
remedies available to Supplier whether under this
Agreement or at law, failure to provide any deposit
or security prescribed by Supplier within 14 days
of request will constitute a breach of these Terms
and Conditions and will entitle Supplier to do all or
any of the following: (i) cease work on the Order;
(ii) cancel the Order; (iii) withhold delivery of the
PRICE LIST VALID 1 JANUARY 2023
Order or any remaining installments of the Order,
as applicable; (iv) sue for the recovery of the total
value of the Order and interest and for any other
Loss and damage; (v) repossess any Products and
deal with them as if Clause 6 applied; and (vi)
exercise any other rights under these Terms and
Conditions.
3.10 Nothing in this clause 3 purports or is intended to exclude any
consumer rights arising under the Australian Consumer Law or
otherwise. Any condition which contravenes Part 2-3 of the
Australian Consumer Law (Unfair Contract Terms) is hereby
severed without affecting the validity of the remaining terms.
Any consumer rights arising under Part 3-1 Division 1 of the
Australian Consumer Law (Consumer Guarantees) are
retained, subject to clause 9.2 of these Terms and Conditions.
4. PRICE AND PAYMENT; TAXES
4.1 Prices quoted by Supplier are open for acceptance by Customer for
a period of thirty (30) days and, unless otherwise stated, are based
upon F.O.B. Notwithstanding the foregoing, Supplier reserves the
right to increase any price quoted to Customer either before or after
acceptance of an Order as a result of any increase in production
costs.
4.2 A cutting charge in the amount notified by Supplier to the
Customer will apply to all Orders unless otherwise agreed at
the time the Order is placed.
4.3 All freight charges, insurance costs and other costs associated
with transporting the Products to the Customer from the
Consignment Address to any destination other than the
Consignment Address shall be met by the Customer. Customer
agrees that any price quoted by Supplier does not include costs
which are attributable to any special delivery requirements, and
that such additional costs shall be to the account of Customer.
4.4 The Customer shall pay Supplier in the currency and amount
set out in Supplier's price list current at the date of delivery of
the Products, or such other price as may be agreed in writing
with Supplier.
4.5 Punctual payment is of the essence. Unless otherwise agreed
in writing with Supplier or as otherwise provided herein,
payment by the Customer for the Products and for all other
fees and charges owing shall be made within thirty (30) days
from the end of the month in which an invoice is issued by
Supplier. In addition to any other rights or remedies available
to Supplier either under this Agreement or at law, in the event
of non-payment of any amounts due by the Customer to
Supplier, the Customer shall pay Supplier cumulative interest
at the rate of one per cent (1%) per month on all overdue
amounts from the date such amount falls due until all
outstanding amounts have been paid in full. Payment shall not
be taken to have been made until the funds received are
cleared into Supplier's account.
4.6 In the case of Products delivered by instalments, the failure by
the Customer to pay for any one or more instalments in
accordance with these Terms and Conditions shall entitle
Supplier to treat such failure as a repudiation of the entire
Order (so far as it remains unperformed) and Supplier may
itself terminate the Order so far as further deliveries are
concerned without prejudice to its rights to recover any monies
then owing by the Customer under the Order or otherwise.
4.7 In addition to the purchase price of the Products, the Customer
shall pay all taxes (including (i) any applicable goods and
services tax and (ii) sales tax except where the Customer has
provided Supplier with a sales tax exemption number), duties,
fees or other Government levies or charges which may be
imposed in respect of the supply of the Products. For the
purpose of these Terms and Conditions, a reference to "the
purchase price" or "monies owing", or to any words of similar
effect, shall include the amount of any applicable taxes.
4.8 If Customer claims exemption from GST, this must be proven to
Supplier’s satisfaction at the time an Order is made. Otherwise in
addition to the price quoted, Customer shall pay GST on the
quoted price for the Products. Customer warrants to Supplier that
a sales tax exemption document furnished to Supplier is valid and
that its contents and true and correct in all respects. In the event
that the exemption document is not valid and/or the contents of such
document are not true and correct, then Customer agrees to
indemnify Supplier against all Loss arising from such invalidity or
inaccuracy.
4.9 The obligation of the Customer to make a payment in respect
of any Products is unconditional and shall not be subject to any
defence, set off, counterclaim or other right against Supplier.
4.10 Customer must not set off against any amount owing by the
customer any amount owing or claimed to be owing by Supplier.
4.11 Provided the deposit is not otherwise forfeited, the
deposit and any other security provided may be applied
by Supplier as payment for any part of the Order as Supplier
in its absolute discretion determines.
5. DELIVERY
5.1 Subject to clause 4.2, Supplier will arrange delivery of the
Products to the Customer at the Consignment Address
specified on any Order and confirmed in Supplier's Order
Confirmation.
5.2 Unless otherwise agreed, Supplier may in its absolute discretion
select a Carrier to deliver the Products to Customer.
5.3 Supplier reserves the right to deliver the Products by
instalments. Where Supplier delivers the Products by
instalments, (i) Supplier may invoice each partial delivery
separately and Customer cannot reject Products on the basis of
partial or late delivery; (ii) each instalment of Products shall be
deemed to be sold as a separate contract and any breach by
the Customer of these Terms and Conditions in respect of any
instalment shall be deemed to be a breach of each other
instalment and of the whole of the contract for the supply of
the Products of which each instalment forms part; and (iii)
Supplier shall be entitled to complete delivery of the Products
by instalment notwithstanding a delay or failure by Supplier to
deliver any instalment and the Customer shall have no
entitlement to assert repudiation of or to terminate the
contract for the supply of the Products as a result of such delay
or failure.
5.4 Any terms as to quantity of Products to be delivered or time of
delivery of Products are not of the essence. Whilst Supplier will use
its best endeavours to deliver the Products to Customer within the
agreed time and at the Consignment Address, no liability will arise
on the part of Supplier in the event that the Products are not so
delivered. Further, Supplier reserves the right to vary the delivery
arrangements, where, in the opinion of Supplier, it would be
impractical to comply with such arrangements.
5.5 Should Customer require delivery of the Products at an earlier
time than agreed, Supplier will attempt to comply with Customer's
request. However, all additional costs incurred by Supplier will be to
Customer.
5.6 Subject to clause 5.7, where the Customer requests delivery
by instalments or a delivery date for any of the Products more
than 3 months after the date of the Order Confirmation then,
unless otherwise agreed in writing by Supplier, the Customer
acknowledges and accepts that Supplier will charge a fee for
holding or storing any of these Products (whether or not any
of the Products are customised for the Customer). The fee
shall be 4% per calendar month of the total order value of the
relevant Products being stored or held by Supplier. Such fee
shall apply from the time when Supplier (in its absolute
discretion and election) allocates or comes into possession of
the relevant Products until all of the Products covered by the
relevant Order have been delivered to the Customer. If the
Customer (by agreement with Supplier) varies the delivery
date for any Products after an Order Confirmation by Supplier
(whether or not any Products under that Order have been
delivered or will be delivered within the 3 month period), the
fee referred to will apply to those Products not delivered within
the 3 month period. Further, Supplier reserves the right to
require payment in full of any amount still owed to Supplier for
any Products the subject of any Order.
5.7 It is a condition of any storage by Supplier of any Products
ordered by the Customer for more than 3 months after the
date of the Order Confirmation that those Products be paid or
in full by the Customer. Without prejudice to any rights of
Supplier to seek relief for any Loss or damage suffered, failure
to pay in full for such Products within the time notified by
Supplier to the Customer will result in the relevant Products
being forfeited to Supplier.
5.8 Customer acknowledges that any pallets used for delivery of
Products are held by Customer as bailee. Where Supplier delivers
the Products on a pallet, stillage or in any package or
container, it may charge a deposit for such pallet, stillage,
package or container. Supplier shall only be bound to refund
any such deposit on the return to Supplier (at Supplier’s
expense) of the pallet, stillage, package or container in good
order and condition. Customer agrees to indemnify Supplier for
any Loss arising from any pallet not being returned to Supplier in
good order and condition within twenty eight days of delivery of
the Products.
5.9 If Customer requests, Supplier may, in its absolute discretion,
arrange for the transfer or hire of pallets to Customer and further,
may allow pallets to be exchanged on a one-for-one basis at a depot
to be nominated by.
PRICE LIST VALID 1 JANUARY 2023
5.10 The Customer acknowledges and agrees that Supplier may
refuse to deliver any Products ordered by the Customer either
directly or indirectly to any third party or otherwise refuse to
deliver until payment in full in advance is made if Supplier is
of the opinion that the third party is or may be in financial
difficulties or the third party itself owes any money to Supplier
at the time of the intended delivery.
6. TITLE AND RISK
6.1 All ownership of, property in and legal title to all tangible
property in the Products shall remain with Supplier until such
time as the Customer has paid both the full contract price for
the said Products and all other debts owing by the Customer
to Supplier at the relevant time. Until such time as the
Customer and any Related Body Corporate has paid in full all
monies owed by it to Supplier (including the clearance of any
cheques or other negotiable instruments), the relationship
between Supplier and the Customer shall be a fiduciary
relationship and during this time the Customer shall hold all
Products separately as bailee for Supplier in such a way that
they can be traced and identified as having been supplied
pursuant to a particular Order. Nevertheless, the Customer
shall be entitled to sell the Products to one or more of its
customers within the framework of the normal carrying on of
its business and to deliver the Products to that customer(s) on
condition that so long as the Customer has not fully discharged
its debt under any Order to Supplier, the Customer shall
separately hold in trust for Supplier all moneys resulting from
the sale of such Products pending payment of the moneys due
to Supplier and shall hand over to Supplier any claims it has
against its customer(s) resulting from the transaction(s). The
Customer must keep accurate records of all such sales.
6.2 Customer appoints Supplier as its agent to deliver or procure the
delivery of the products to the Consignment Address.
6.3 Customer grants to Supplier an irrevocable licence to enter
Customer's premises (forcibly if necessary) exercisable in the event
of a termination event occurring under clause 15.1, which licence
permits Supplier as its sole option to repossess and remove all or
any of the Products.
6.4 Where the Products or any part of them are mixed with or
become part of other Products produced or otherwise supplied
by or on behalf of the Customer ("other Products") then, by
reason of the fiduciary relationship between them, the
Customer agrees with Supplier that until payment of all
amounts due by the Customer to Supplier are made, Supplier
shall have title to such other Products and the Customer holds
the other Products as a bailee for Supplier.
6.3 The Customer acknowledges and accepts that for as long as
any Products delivered by Supplier have not been paid for,
Supplier's interest in those Products and in any other Products
constitutes a security interest in those Products or other
Products within the meaning of that term in the Personal
Property Securities Act 2009 (C'th) (as amended).
6.4 Without prejudice to any other rights or remedies available to
Supplier (as an "unpaid seller" or otherwise), whether under
this Agreement or at law or equity, in the event of nonpayment
of any sums due by the Customer to Supplier,
Supplier shall have the right to do any or all of the following:
(a) suspend performance of or terminate any agreement
between Supplier and the Customer; and/or
(b) repossess any Products supplied by it and any
documentation, data, records or information relating
thereto. For such purposes, Supplier or any one or
more of its agents or authorised representatives shall
be entitled at any time without notice to enter upon
any premises in which the Products are or are
reasonably believed by Supplier to be kept, stored,
used or installed, and to repossess the same on behalf
of Supplier and shall not be responsible for any
damage reasonably necessary in enforcing its right;
and/or
(c) seek further security or impose other credit
arrangements (including payment in full in advance)
as a condition of further performing its obligations in
respect of any outstanding Order; and/or
(d) enforce any rights it has under the Personal Property
Securities Act (as amended).
6.5 The provisions of clauses 6.1-6.4 (inclusive) shall apply
notwithstanding the provision of credit by Supplier to the
Customer.
6.6 All risk in a Product passes to the Customer upon the earlier to
occur of:
(a) delivery of the Products to the Customer (in
accordance with these Terms and Conditions); and
(b) payment in full by the Customer to Supplier for the
Product.
6.7 Whether the address of a Consignment Address is the address
of the Customer or of the freight handler or freight forwarding
agent appointed by the Customer, all risk of Loss and damage
to the Products passes to the Customer when the Products are
delivered by Supplier at the Consignment Address.
6.8 If any question arises as to the ownership of any Products, the
onus shall be on the Customer to prove that, in respect of
those Products, ownership or title has passed to it. All Products
in the Customer's possession shall be deemed to be owned by
Supplier unless the Customer proves otherwise.
6.9 Supplier may register all security interests on the Personal
Property Securities Register (as defined in the Personal
Property Securities Act 2009 (Cth) (PPSA) that are created
pursuant to this Agreement, in which event (i) Customer
waives its right to receive a copy of any financing statement,
financing change statement or verification statement (as those
terms are defined in the PPSA) registered or received by
Supplier in respect of the security interests created by or
pursuant to this Agreement; (ii) Customer agrees to do all
things necessary, including signing all documents and
providing all relevant information and co-operating with
Supplier, to enable Supplier to register a financing statement
on the Personal Property Securities Register to ensure that
Supplier has at all times a perfected security interest for all
security interests created by or pursuant to this Agreement;
and (iii) Customer shall not grant any other security interest in
any Products or other Products in which Supplier has a security
interest pursuant to this Agreement, except with the prior
written consent of Supplier.
7. RETURN OF PRODUCTS
7.1 All rights and remedies described in this clause 7 are subject
to clause 9, specifically any consumer rights which may arise
under the Australian Consumer Law.
7.2 Supplier will take reasonable steps to ensure that Products are
delivered to the Consignment Address in a complete and
undamaged condition. Notwithstanding, to the extent
practicable, the Customer must inspect all Products at the time
of delivery by Supplier. To the fullest extent permitted at law,
Supplier shall have no liability to the Customer whatsoever for
any problem with the Products (whether by reason of the
Products delivered being damaged in transit or not being in
accordance with the requirements of the particular Order
and/or these Terms and Conditions and whether or not such
problem comprises a "defect") which is visible or evident at the
time of delivery but not identified by the Customer and notified
to Supplier within 48 hours of delivery to the Customer.
Customer must contact Supplier's customer service agent by
email aftercare@gerflor.com.au (or such other telephone
number or email address as Supplier may notify the Customer
from time to time) with the following information: (i) original
Order reference number; (ii) Customer's name and contract
details; and (iii) details of the missing, damaged, incomplete
or incorrect Product(s).
7.3 Subject to clauses 7.1, 7.2 and 7.5, if any of the Products
delivered in purported performance of any Order are not in
accordance with the requirements of a particular Order and the
Terms and Conditions set out herein in every respect (including
by reason of delivery of the wrong Products or as allegedly
defective Products), the Customer may return those Products
to Supplier PROVIDED HOWEVER that:
(a) in the case where no defect is alleged, (i) such Products
must be received by Supplier within fourteen (14) days of
initial delivery to the Customer; and (ii) the packaging (if
any) of the Products remains intact and the Products are,
in Supplier’s opinion, in an "as new" condition; and (iii)
the Customer notifies Supplier in writing of the reason for
the Products being returned;
(b) in the case of allegedly defective Products, prior to the
Products being returned, the Customer notifies Supplier
in writing of the basis of the alleged defect(s) and obtains
from Supplier a "RA Number", which shall accompany the
allegedly defective Products and referred to in all
subsequent communications between the Customer and
Supplier concerning the Products. Supplier reserves the
right to inspect the Products at the Customer’s premises
and, in its absolute discretion, to determine whether the
PRICE LIST VALID 1 JANUARY 2023
Products are defective and, if so, whether they should be
repaired, replaced or otherwise dealt with; and
(c) the Customer has obtained an "RMA number" from
Supplier for the Products being returned.
7.4 The return of any Products will initially be at the Customer’s
expense and risk. Goods returned will not be accepted unless
prior notification is given in writing and consent given by
Supplier. Return of resalable goods will be at Supplier's
discretion, noting no goods will be accepted after 75 days from
the original dispatch date. A re-stocking fee of $400 will apply
or 25% of the value of goods, whichever is greater.
7.5 Upon receipt of the returned Products, Supplier shall decide
whether the Customer is entitled to return these Products
from the Consignment Address or other place where those
Products were delivered by Supplier to the Customer in
accordance with clause 5.1. If it so decides, Supplier shall
refund to the Customer the reasonable cost of returning
those Products. Except as expressly provided herein,
Supplier shall not be under any obligation to accept the
return of any Products supplied to the Customer. Without
limiting the generality of the foregoing, Products
manufactured or produced to the Customer’s specification
cannot unless accepted by Supplier to have a problem (in
accordance with clause 7.2) or otherwise to be defective be
returned by the Customer and Supplier will not accept them
for credit.
7.6 Unless required to do so by law or otherwise as expressly
provided herein, the Customer acknowledges and accepts
that Supplier is not obliged or bound to accept the return of
any Products (for example, change of mind or surplus).
Subject to the foregoing, the Customer may request Supplier
to accept the return of any Product(s) and expressly
acknowledges and accepts that Supplier may in its absolute
discretion accept or refuse the return of the Products and
that any agreement by Supplier to accept the return of any
Product(s) may be upon such lawful conditions as Supplier
may determine, including but not limited to the imposition
of a service or handling charge in the amount set by Supplier
from time to time (specified as a fixed amount or a
percentage of the value of the Product(s)) being returned.
7.7 For the purposes of these Terms and Conditions, the
Customer expressly acknowledges and agrees to the
following:
(a) to the extent permitted at law, no claim may be brought
by the Customer asserting a defect in any of the
Products where such defect would have been
discernible on inspection by the Customer (for
example, but not limited to, colour, size, thickness,
selvage, pattern, texture, foreign matter or other
imperfection) but no inspection has been performed
within the time prescribed in clause 7.2 or where the
Products in question have been in any way altered from
the condition in which they were despatched by
Supplier (whether by reason of having been cut,
processed, installed, laid or otherwise altered);
(b) unless the Customer can establish otherwise, all
Products will be deemed to conform with the standard
applicable tolerances and specifications to which the
relevant Products are manufactured as set out in the
written specifications and technical data published or
distributed by Supplier from time to time; and
(c) the Customer acknowledges and accepts that further to
clauses 3.6, 3.7 and 3.8, variations will exist in
thickness and colour of certain Products provided in
bulk, for example, (i) between rolls and tiles and (ii)
within rolls and batches of tiles, and that such
variations do not render the Products of unacceptable
or unmerchantable quality or non-correspondent with
any sample of the particular products which the
Customer may have previously seen or otherwise
defective in any way. Products such as tiles and rolls
are clearly marked with batch numbers and all Products
should be checked for matching and visible
imperfections or faults before the condition of the
Products is altered (whether by cutting or laying or
otherwise).
8. INSTALLATION OF PRODUCTS
8.1 The Customer acknowledges and accepts that Supplier is not
responsible howsoever for installation of the Products or any
aspect of preparing for the installation of the Products.
9. WARRANTIES AND EXCLUSION AND LIMITATION OF
LIABILITY
9.1 Subject to the provisions of any warranty published by Supplier
in respect of a Product (which warranty is deemed to be
incorporated into these Terms and Conditions) and otherwise
except to the extent that the exclusion, restriction or
modification of certain conditions, guarantees, warranties
and/or rights is prohibited in the context of these Terms and
Conditions by any applicable legislation as the same may apply
to the supply, of any Products by Supplier to the Customer
under these Terms and Conditions, these Terms and
Conditions together with any applicable warranty or guarantee
or information published by Supplier are in lieu of and to the
exclusion of all other conditions, guarantees and/or
warranties, express or implied, relating to the supply of any
Products, including but not limited to the statutory guarantees
as to acceptable quality and fitness for any disclosed purpose.
9.2 Where such limitation of liability is not prohibited or void under
any applicable Act of Parliament, the liability of Supplier to the
Customer for any Loss, damage or injury whatsoever
(including consequential and economic loss, and including
liability in respect of the breach of any consumer guarantee)
howsoever arising directly or indirectly in connection with any
Products, the supply of or use of any Products or the supply of
any services shall be limited to any one or more of the
following as determined by Supplier in its absolute discretion:
(a) in the case of any Products, (i) the replacement of the
Products or the supply of equivalent Products; (ii) the
repair of the Products; (iii) the payment of the cost of
replacing the Products or of acquiring equivalent
Products; or (iv) the payment of the cost of having the
Products repaired; and
(b) in the case of any services, (i) the supplying of the
services again; or (ii) the payment of the costs of
having the services supplied again.
9.3 Without limiting clauses 9.1 or 9.2, if the Product is the subject
of a consumer guarantee, the Customer is entitled to a
replacement or refund for a major failure and compensation
for any other reasonably foreseeable Loss or damage. The
Customer is also entitled in such circumstances to have the
goods repaired or replaced if the goods fail to be of acceptable
quality and the failure does not amount to a major failure.
9.4 Samples and Warranties: due to variations in colour from batch
to batch, no warranty or guarantee is given by Supplier to
Customer that the goods shall correspond in colour or texture with
any sample, display, or goods previously sold or displayed.
Kenbrock shall not be liable for any claim, Loss or expense
(whether direct or indirect) which is sustained or incurred by the
buyer by reason of any variation in colour of the goods sold.
9.5 Under no circumstances will Supplier be liable for any Loss,
damage or injury whatsoever or howsoever arising as a result
of any incorrect or inappropriate installation or use of any
Products by a third party or other person for whom Supplier is
not vicariously liable.
9.6 Where such limitation is not prohibited or void under any
applicable Act of Parliament, the Customer may not bring any
action against Supplier or join Supplier in any action in respect
of the supply of any Products after the expiration of any defects
liability period applicable to the project for which the Products
have been supplied or nine (9) months from (1) the day on
which the relevant Products were delivered or (2) the day on
which the relevant Products were scheduled to be delivered,
whichever expires first.
9.7 Customer acknowledges that it has not relied upon any
representation made by the Supplier which has not been stated
expressly in these Terms and Conditions or upon any descriptions
or illustrations or specifications contained in any document
produced by the Supplier or supplied to Customer.
9.8 The Customer shall fully indemnify and hold Supplier harmless
against all Loss, costs and expenses incurred by Supplier as a
direct or indirect result of the Customer failing to comply with
any of these Terms and Conditions (including without limitation
in respect of this term, debt collection fees and charges and
legal costs on a solicitor own client basis incurred by Supplier
whether or not legal proceedings to recover any amount
outstanding are issued).
10. FORCE MAJEURE
10.1 Supplier shall not be liable for any failure in the performance
of its obligations under these Terms and Conditions by reasons
of strikes, lock-outs, labour disputes, riots, fire, explosion, acts
of God, war or other acts of public enemies, governmental
PRICE LIST VALID 1 JANUARY 2023
action (including acts of semi-government authorities),
embargoes, epidemics, storms, floods, shortages of raw
materials, accidents or breakdowns of plant or machinery,
delays incurred by carriers or from any other cause which is
beyond the reasonable control of Supplier.
10.2 In the event of any circumstance arising which is beyond the
reasonable control of Supplier, Supplier may either elect to
postpone performance of its obligations for the duration of
such circumstance or it may cancel any Order affected by such
circumstance. Where Supplier cancels any Order, it shall
refund to the Customer all moneys paid by the Customer to
Supplier for the Product not being supplied by Supplier or for
any services not being performed by or on behalf of Supplier.
11. ASSIGNMENT
The Customer acknowledges that Supplier may assign or
transfer any part of its obligations under these Terms and
Conditions to any other person or company and may further
sub-contract the manufacture and/or supply and/or the
installation of any of the Products. These Terms and
Conditions are otherwise personal to the Customer and the
benefit of them cannot be assigned or transferred howsoever
to any other person by the Customer without the express
written consent of Supplier, which consent may be withheld by
Supplier in its absolute discretion.
12. GOVERNING LAW AND RESOLUTION OF DISPUTES
12.1 These Terms and Conditions shall be governed by and
construed in accordance with the laws of the State of Victoria,
Australia and the parties submit to the exclusive jurisdiction of
the Courts of the said State and to the Courts of appeal
therefrom.
12.2 Any claims as to quality or quantity of Products supplied must be
made within seven days of delivery of the Products to the
Consignment Address. In the event of a dispute between
Customer and Supplier relating to either the production or delivery
of the Products, Customer agrees to pay Supplier all such amounts
owing to Supplier by Customer until such time as the dispute is
resolved.
12.3 Where a product is sold at a reduced price due to it being a
“seemed”, “faulty”, “damaged”, “discontinued” or similar, no further
price reduction or claim can be made.
12.4 All disputes or differences arising out of these Terms and
Conditions concerning the performance of the parties and of
their obligations under these Terms and Conditions shall be
resolved by a Court in a jurisdiction chosen as convenient by
the party commencing such proceeding and the parties hereby
submit to the jurisdiction of such Courts and to the Courts of
appeal therefrom.
12.5 Subject to the foregoing the parties may agree in writing to
refer part or all of such dispute or difference to arbitration or
mediation.
13. VARIATION AND WAIVER
13.1 Supplier may vary these Terms and Conditions from time to
time, and it is Customer's responsibility to ensure it is familiar
with the applicable version. Customer's rights will not be
adversely affected by a retrospective variation.
13.2 The failure of any party at any time to require performance by
the other party of any provision of these Terms and Conditions
of this Agreement shall not affect in any way the full right of
the waiving party to require such performance at any time
thereafter, nor shall the waiver by any party of a breach of any
provision hereof be deemed a waiver of the provision which is
breached, or any other provision thereof.
14 INSURANCE
14.1 If stipulated in the Order, Customer must maintain adequate
insurance cover with a reputable insurer to cover any insurable
Loss in respect of Products however caused between the time
of delivery (either to the Consignment Address or a Carrier,
whichever first occurs) and the time that title in Products passes
to Customer, and Customer must produce to Supplier upon
request certificates of currency relating to such insurance.
For the avoidance of doubt, Supplier may arrange such
insurance and charge the cost to Customer.
15 TERMINATION
15.1 The Supplier may terminate this Agreement immediately by
notice in writing if (i) the Customer is in breach of any term of
this Agreement and such breach is not rectified within 20
Business Days of notification by the Supplier, or in the case of
a payment obligation, five Business Days; (ii) without limiting
(i), or (ii) the Customer becomes, threatens or resolves to
become or is in jeopardy of becoming subject to any form of
insolvency administration.
15.2 Upon the occurrence of a termination event referred to in
clause 15.1 Supplier reserves the right to cancel an Order with
Customer (to extent that the Order remains unperformed)
in whole or part without liability attaching to Supplier, stop any
products in transit and dispose of the Products produced for
Customer to a third party and all monies owing to Supplier in
respect of any Order shall be immediately payable.
15.3 Termination is without prejudice to any right or obligation
which may have accrued prior to termination.
16. SEVERABILITY
16.1 If any of these Terms and Conditions infringes any law in
Australia, it must be read down so that it does not infringe that
law, otherwise it will be deemed void and severable.
17 NOTICES
17.1 All notices to be given under these Terms and Conditions
shall be in English and in writing and may be given to the
other party by hand delivery, prepaid post, or facsimile
addressed to other party at its last known address.
ACCEPTANCE:
THE CUSTOMER HEREBY ACKNOWLEDGES THAT THEY HAVE READ
AND AGREE TO THESE TERMS AND CONDITIONS OF ORDER AND
SUPPLY AND THAT THESE TERMS AND CONDITIONS OF ORDER AND
SUPPLY SHALL UNTIL VARIED IN WRITING BY SUPPLIER FORM PART
OF ANY CONTRACT FOR THE SUPPLY OF PRODUCTS PLACED BY THE
CUSTOMER WITH SUPPLIER IN THE FUTURE:
CUSTOMER NAME: ........................................................
AUTHORISED SIGNATURE OF CUSTOMER:
..............................................................................
NAME:
DATE:
