Terms and Conditions of Sale
Also see our Warranty Statement.
In these terms and conditions:
Person shall include a firm or corporation; Company shall, where the context admits or requires mean and include Street Furniture Australia Pty Ltd ACN 070 910 100 and/or any of its related bodies corporate as defined in Section 50 of the Corporations Act 2001 or any other person who or which is named as the party accepting the order. Goods shall include services. Purchaser shall mean the person to whom any quotation is made and shall include any person contracting or offering to contract with the Company on these terms and conditions and where there is more than one Purchaser, the Puchaser’s covenants and obligations are joint and several.
All goods are supplied by the Company in accordance with these terms and conditions.
All quotations are subject to withdrawal or variation by the Company at any time prior to acceptance of an order.
4. Offer and Acceptance
Any quotation made by the Company is not an offer to sell and no order given in pursuance of any quotation will bind the Company unless and until such order is accepted by the Company in its absolute discretion. Unless otherwise agreed in writing, all orders are subject to acceptance by the Company withing thirty (30) days of receipt by the Company of the Purchaser’s order. Upon acceptance of any order by the Company a binding agreement shall arise between the Purchaser and the Company and these terms and conditions shall be deemed to be incorporated in such agreement. If any terms and conditions are contained in any order, offer, acceptance or invoice of the Purchaser, then it is specifically agreed between the Purchaser and the Company that such terms and conditions are null and void and shall not apply. 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.
The prices in quotations are based on the current cost of production prevailing at the date of the quotation (materials, overheads, wages etc) and are subject to amendment on or after acceptance of any order placed in reliance upon such quotations, to meet any rise or fall in such costs. The Company reserves the right to amend the prices at any time for any undelivered portion of an order by notifying the Purchaser in writing of the new prices. The price of the goods shall be the price in the quotation (as amended in writing from time to time) plus:
a) the amount which the Company is required to pay on account of any excise or any other taxed or charges which may be established or levied by any government authority (domestic or foreign) upon the goods or the manufacture, use, sale or delivery thereof and
b) any added costs requested in writing by the Purchaser
Unless the Purchaser has a credit account with the Company, all payments are to be made by cheque, credit card or other cleared funds at the time of ordering the goods. If the Purchaser has a credit account, payment must be made in accordance with the terms set out in the Credit Accounts section.
7. Credit Accounts
a) Payment – If the Purchaser has a credit account, a 25% deposit must be paid within 7 working days of order and remaining payment must be made within 30 days of date of invoice or such other period (if any) as may have been agreed to in writing by the Company. The Company may terminate a credit arrangement with the Purchaser at any time upon which all money owing to the Company will be immediately due and payable. If the Purchaser defaults in making payment to the Company in accordance with these terms and conditions, the Company may in its absolute discretion:
i. Charge the Purchaser interest calculated on the portion of the Purchaser’s account overdue from time to time at the rate of fifteen per cent (15%) per annum calculated daily; and
ii. Require the Purchaser to reimburse the Company for all collection costs including legal costs incurred by the Company calculated on a solicitor and own client basis as a consequence of the Company instructing its solicitor to provide advice to it in connection with each default and/or to institute such recovery process as shall in the absolute discretion of the Company be appropriate in the circumstances.
b) Completed goods – If goods ordered by the Purchaser are required to be installed at the Purchaser’s nominated site and the Purchaser is neither willing nor able to make available the site for installation of the goods, the Purchaser shall be invoiced for the goods when the goods are ready for installation unless otherwise agreed in writing between the parties.
c) Insolvency and Default – If:
i. The Purchaser makes default in any payment due to the company or in the performance and observance of any terms or conditions set out herein
ii. A resolution is passed or proposed or a petition is presented or an application filed or an order made for the winding up or liquidation of the Purchaser
iii. A receiver, receiver and manager or controller (as defined in the Corporations Law) is appointed of the property or any part of the property of the Purchaser
iv. The Purchaser makes or proposes to make any arrangement with its creditors
v. The Purchaser is placed under administration or an administrator is appointed
vi. Execution is levied upon the assets of the Purchaser for an amount in excess of $1000.00 and is not satisfied within seven (7) days
vii. The Purchaser is the subject or a debtor’s or creditor’s petition in bankruptcy or is the subject of an Bankruptcy Notice then the Company may, without prejudice to any other remedy that may be available to the Company at its option withold further deliveries or cancel and arrangement between the Company and the Purchaser.
a) Any date quoted for delivery is an estimate only and unless a guarantee shall have been given by the Company in writing on Company letterhead signed by the General Manager or a Director providing for liquidated damages for failure to deliver by the quoted date, the Company shall not be liable to the Purchaser for any loss or damage, whether direct, indirect or consequential and howsoever arising for failure to deliver on or before the quoted date.
b) The company reserves the right to deliver by instalments. If delivery is made by instalments, the Purchaser shall not be entitled:
i. to terminate or cancel any instalments still to be delivered; or
ii. to any loss or damage howsoever arising for failure by the Company to deliver any instalment on or before the quoted date.
c) The Purchaser must request delivery to a site that is deemed safe, appropriate and easily accessed by the Company. The Company reserves the right to elect to deliver the goods to another nominated location if the proposed delivery site does not meet the Company’s requirements. If the nominated location is unattended at the time of delivery, the Company shall not be responsible for any damage to or loss of the goods after delivery however arising.
9. Quantity Delivered
Every endeavour will be made to deliver the correct quantity ordered. In the event of any over-delivery in quantity of goods to the Purchaser, the Purchaser must accept the goods ordered and may reject the rest, in which case it must immediately inform the Company and allow the Company to retrieve the excess goods.
An order placed by the Purchaser and accepted by the Company represents a contract for manufacture and supply of goods. If within the first five (5) working days from the date of placement of order, the Purchaser notifies the Company of a need to cancel the order, the Company may at its discretion, accept this cancellation. In the event of a cancellation of an order within this period, the Purchaser undertakes to reimburse and indemnify the Company for any costs, expenses or changes incurred by the Company in preparation for and in the execution of an order, which without limiting the generality of the foregoing shall include an amount equal to twenty five percent (25%) of the total selling price of the order had the order not been cancelled. In the event of a cancellation after the first five (5) working days from the placement of order, the Company will require the payment of the total selling price of the order had the order not been cancelled.
The Purchaser will be liable for a storage fee if the goods are not taken by the Purchaser within 14 days of the agreed delivery date. The Company reserves the right to charge a storage fee at the rate of Fifteen per cent (15%) per annum, calculated daily on the total purchase prices of the goods.
12. Description and Specification
Whilst every effort is made to ensure their accuracy the descriptions illustrations and material contained in any catalogue, price list, brochure, leaflet, specification sheets or other descriptive matter provided by or on behalf of the Company represent the general nature of the items described therein and shall not form a part of any order or agreement or amount to any representation or warranty.
13. Intellectual Property
All right, title and interest in and to any goods or materials in which copyright or other intellectual property rights exist created by the Company for or supplied by the Company to the Purchaser shall, vest absolutely in and remain the sole property of the Company. The supply of goods shall imply a license to the Purchaser to use the same but for no other purpose. The Purchaser undertakes not to utilise, copy, reproduce or disclose or permit others to utilise, copy, reproduce or disclose any such intellectual property without the prior written consent of the Company.
14. Goods and Services Tax (GST)
Where applicable, GST will be charged at the ruling rate.
a) In respect of any work done other than at the Company’s premises at the request of the Purchaser, it shall be the duty of the Purchaser to ensure that the conditions under which the work is to be performed, the layout, means of access, accessibility of the different parts of the subject matter being worked on or handled and other material circumstances shall be suitable to the Company failing which the Company shall be entitled to charge a reasonable increase in the price having regard to the prevailing circumstances.
b) The Purchaser grants permission to the Company and its employees, contractors and/or agents to enter, at any time, any property where goods supplied by the Company are to be installed and for the purposes of pre-inspecting the property prior to any installation of goods. The Purchaser agrees to have a representative present at the property for such pre-inspection and installation as reasonably required by the Company or its employees, contractors and agents.
16. Limitations of Liability
a) Except when the Purchaser is a consumer for the purposes of the Trade Practices Act 1974, and the conditions warranties and rights implied by that Statute cannot be excluded, representations, promises, statements, warranties and conditions (whether statutory express or implied) regarding any goods or services supplied by or on behalf of the Company which without limiting the generality of the foregoing shall include conditions or warranties as to quality or fitness for any particular purposes are expressly excluded. The Company shall not be liable for any loss or damage whatsoever and howsoever arising whether direct, indirect, special or consequential or in respect of any claim whenever and however made for any loss, damage, deterioration, deficiency or other fault or harm in the goods manufactured, work executed or services provided by or on behalf of or in any arrangements with the Company or occasioned to the Purchaser or any third or other party or to his or their property or interest and whether or not due to the negligence of the Company its servants or agents, except in the following circumstances and subject to the following limitations:
i. the Purchaser shall inspect the goods immediately on their arrival and shall, within seven (7) days from such arrival, give written notice to the Company of any matter or thing by reason whereof the Purchaser may allege that the goods are not in accordance with the agreement for supply of goods by the Company to the Purchaser
ii. the Company’s liability shall be limited in all circumstances to the repair or replacement (at the option of the Company) of any goods manufactured by it which are with the prior written authority of the Company, returned adequately packed and freight paid to the Company within the Company’s guarantee period covering the goods as indicated in Clause 16(a)(i) above and which the Company accepts as having been defective in materials or workmanship
b) The Company shall not be liable in any circumstances for any:
i. defects or damage caused in whole or in part by misuse, abuse, neglect, error, electrical or other overload, unsuitable lubricant, improper installation, repair alteration or accident
ii. transport, installation, removal, labour or other costs
iii. modifications or changes to the goods not authorised in writing by the Company or any other unauthorised act by the Purchaser or a third party
iv. goods not manufactured by it but the Company will endeavour to pass on to the Purchaser the benefit of any claim made by the Company and accepted by the manufacturer of such goods under a warranty given by that manufacturer
v. technical advice or assistance given or tendered by it to the Purchaser whether or not in connect with the manufacture, construction or supply of goods for or to the Purchaser
c) The Purchaser acknowledges that neither the Company or any person acting on the Company’s behalf has made any representations or given any promise or undertaking in relation to the quality of the goods or their usage.
All goods shall be at the risk of the Purchaser from the time of delivery to the Purchaser or its agent or carrier. If the Company is required to undertake installation of goods in the Purchaser’s premises, the risk of the goods shall pass to the Purchaser from the time the installation is completed.
Title to the goods shall not pass to the Purchaser until the earlier of:
a) payment in full in cleared funds of the purchase price for the goods has been received by the Company and for all other goods sold by the Company to the Purchaser for which payment is then due
b) a bona fide sale of the goods by the Purchaser in the ordinary course of the Purchaser’s business.
At all times before title in the goods passes to the Purchaser, the Purchaser shall store the goods so that they are clearly identified as the property of the Company. If the goods are sold by the Purchaser, the Purchaser acknowledges that such sale is made by the Purchaser as bailee for and on behalf of the Company. The proceeds of such sale are to be held on trust for the Company in an account in the name of the Company until full payment for the goods is made to the Company. Until title in the goods has passed to the Purchaser, the Company will be entitled at any time, in its absolute discretion, to retake possession of the goods and resell them and for that purpose may enter the Purchaser’s premise and sever, remove and carry away the goods. Where the goods supplied by the Company have been affixed to the ground, the Company may elect to remove the goods. The Purchaser agrees to indemnify the Company against any loss, damage, cost and expense suffered or incurred by the Company as a result of removing the goods and further agrees to reimburse the Company for any expense incurred by the Company in repairing any damages to the affected area.
The laws of the state of New South Wales shall apply and the Purchaser agrees to submit to the exclusive jurisdiction of the courts of that state.
20. Force Majeure
Every effort will be made to carry out any contract based on a quotation, but the lack of performance of it is subject to variation or cancellation owing to an act of god, war, strikes, lock-outs, fire, flood, drought or any other causes beyond the Company’s control or owing to the Company’s inability to procure materials or articles except at increased prices due to any of the foregoing causes.
These Terms and Conditions can not be altered except by agreement by the Company in writing on Company letterhead signed by the General Manager as Director.
Failure by the Company to insist upon strict performance of any of these terms or conditions shall not be deemed a waiver thereof or of any rights the Company may have and shall not, and nor shall any express waiver, be deemed to be a waiver of any subsequent breach of any term or condition.
All costs and expenses incurred by the Company to remedy any breach by the Purchaser of these terms and conditions shall be recoverable from the Purchaser in addition and without prejudice to the Company’s right to damages for breach of these terms and conditions