In this document:
Goods means our insulated structural roofing panel(s) or any other goods supplied by us to you.
Quote means any quote we issue from time to time.
Terms means the terms and conditions contained in this document, as amended by us from time to time.
We, us or our means Versiclad Pty Ltd ABN 21 003 167 753.
We may from time to time issue Quotes for the supply of Goods. All Quotes issued by us to you are subject to these Terms.
Unless otherwise stated, any Quote will remain open for acceptance for the time stated on the Quote and where no time is stated, for 30 days, unless withdrawn by us earlier.
A Quote may be accepted by signing and returning the Quote, by communicating your acceptance of the Quote over the phone, by email or on our Website, or by continuing your order of any Goods. If you accept a Quote, you are also accepting all of these Terms without amendment.
We may in our absolute discretion accept a purchase order from you in respect of the supply of Goods. These Terms apply to any such purchase order accepted to the exclusion of any terms stated on the purchase order.
We reserve the right to refuse any order placed by acceptance of a Quote within 7 days of receipt of the acceptance, including but not limited to circumstances where we do not have the Goods you ordered in stock.
If we refuse any order placed by you after your acceptance of a Quote and you have pre-paid for the Goods at the time you accepted the Quote, we will offer you alternative Goods (which you may refuse at your absolute discretion) or we will cancel all or part of your order and refund the amount paid. If you are entitled to a refund pursuant to this clause, we will endeavour to credit your credit or debit card as soon as reasonably practicable but in any event no later than 30 days from the date of cancellation of your order.
If you are an individual, by signing and returning a Quote, or by communicating your acceptance of a Quote by any means (including in writing, by telephone, by email, on our website or by your conduct) or by issuing a purchase order, you warrant that you are authorised to accept these Terms on behalf of the relevant entity. If you communicate your acceptance of a Quote by any means (including in writing, by telephone, by email, on our website or by your conduct) or issue a purchase order as a director or trustee of a customer then in addition to that entity you agree to be personally liable to guarantee performance of this Agreement and the obligations of the contracting entity as if you are the contracting entity.
All drawings, specifications, descriptive matter or advertising issued by us and any descriptions, illustrations or particulars of goods such as colours, weights, dimensions, performance or other attributes provided by us are approximates only and do not form part of any contract as between us. Any deviation or error in these matters do not vitiate any contract between us or give rise to any claim in relation to those matters.
To the maximum extent permitted by law and subject to the terms of any manufacturer’s warranty provided to you, we do not warrant or guarantee the quality or workmanship or fitness for purpose of any Goods.
Where specifications, drawings or other particulars are provided by you, our price is based upon estimates of quantities required. If any adjustment in quantities is required, the price stated in any Quote or purchase order is adjusted on the unit rate basis as stated in the Quote or if that Quote expires at such price as we shall reasonably determine having regard to the usual price at that time.
- Your obligations
You must ensure that all information provided to us is true, accurate and not misleading.
You must act reasonably and take reasonable care to protect your own interests, including managing all safety risks associated with the operation of the Goods, properly reading and following any instruction or training manuals, following any reasonable direction we may give and appropriately directing your own employees, servants and agents in relation to these things.
Details of any Goods as recorded by us upon dispatch will be conclusive evidence of the quantity received by you on delivery unless you provide conclusive evidence proving the contrary within 48 hours of delivery (where you pay us a freight charge for delivery of the Goods) or at the time of collection of Goods (where Goods are collected by you, or you engage or pay a third party to deliver the Goods to you).
You waive any claims in respect of any shortages for any Goods delivered unless a notice of a claimed short delivery is provided to us within 48 hours of delivery (where delivery is arranged by us).
- Delivery and storage
If we arrange delivery of the Goods and you pay us a freight charge for delivering the Goods to you, the Goods will be delivered by post or carrier to your nominated address. We will notify you once the Goods have been dispatched. You must have someone on site to accept delivery of the Goods and unload the Goods if required.
Any dates specified by us for delivery of the Goods are approximate only. If no dates are so specified, delivery will be within a reasonable time. We may deliver the Goods in batches or in instalments.
You have no right of action for damages or otherwise against us and release us from any claim for loss or damage occurring by reason of any failure or delay in delivery.
If you fail to take delivery of any of goods or to provide any instructions to enable the Goods to be delivered, without prejudice to any other rights, we may store or arrange for the storage of the Goods pending delivery but as it relates to the timing of payment for the goods under these Terms, delivery shall be deemed to have taken place at the date we store or arrange storage of the Goods.
Any costs or expenses incurred in relation to storage, including related insurance, of Goods pending delivery are payable by you.
- Goods and Services Tax
Unless otherwise stated, all amounts and prices provided in a Quote or otherwise are exclusive of GST. Where the service provided is subject to GST, it will be added and charged to you.
- Price increases
Amounts and prices stated on any Quote are those at the date of the Quote. If you require any changes to the Quote which affect the cost or rates for insurance, freight, cartage or shipping expenses, duties, exchange rates, sorting and stacking costs, costs of materials or any other amounts used to calculate the price or amounts stated on the Quote, or if those inputs increase in cost before acceptance or during the currency of our contract, any increase in those amounts are on your account and will increase the price accordingly. We will notify you of any price increase and seek your acceptance of any price increase before continuing with your order and dispatching any Goods.
- Accounts and interest
All prices of our Goods are quoted in Australian dollars.
Payment for all online orders through our Website must be made at the time of placing an order.
For all other orders (excluding orders made on our Website), payment must be made at the time of the order or (at our discretion) at the time specified on the Quote. Unless otherwise stated in a Quote, any accounts must be paid in full within 30 days from the end of the month in which the invoice was issued.
If our accounts are not paid in full by their due date, we may charge you a late payment fee in the amount of $100 plus GST per month until the account is paid to cover our administrative costs of managing late payment.
- Outstanding accounts
If any account remains outstanding for a period of 45 days or more, without limitation to any other rights and remedies we may have, you hereby charge in our favour any real or personal property in which you have an interest with payment of any outstanding account and you irrevocably authorise us to lodge caveats to notify and protect that charge in relation to any real property in which you have an interest at your cost.
If an account remains outstanding for more than 60 days, you authorise us to provide your particulars and the particulars of the unpaid debt to any credit reporting agency to have the default in payment listed.
All costs and disbursements incurred by us in recovering payment of any overdue account or in enforcing our rights under these Terms including, without limitation, legal costs on a solicitor and client basis are payable by you.
We may retain any documents or Goods held on your behalf pending payment of any outstanding account.
- Retention of title
We reserve the following rights in relation to all Goods provided by us until all amounts owing by you to us in respect of those Goods are paid in full:
(i) ownership of the Goods,
(ii) to enter your premises (or the premises where the goods are located) without liability for trespass or any resulting damage to retake possession of the Goods, and
(iii) to keep or resell any of the Goods so repossessed.
In respect of the resale of the Goods pursuant to this clause, we will apply the net proceeds of sale firstly towards the payment of the unpaid invoice with respect to those Goods, then towards any other unpaid invoices and if there is any surplus, the surplus will be paid to you. If there is a deficiency, we may recover the amount of that deficiency from you as a debt.
- PPSA Registration
You agree that all Goods supplied to you by us will be subject to a security interest as that term is defined in the Personal Property Securities Act 2009 (PPSA) and we will treat the security interest in the Goods as continuing and subsisting security with priority over a registered general security and any unsecured creditors.
Accordingly, you grant us a security interest in the Goods and in any proceeds arising from the sale of the Goods or in any accessions in the Goods or if the Goods become an accession the accession and the Goods, to secure your obligations to us including, but not limited to, your obligation to make payment for the Goods.
You are responsible for all costs incurred by us in registering our interest under the PPSA and all costs of enforcement. Furthermore you also agree if needed to the unconditional ratification of any actions by us in relation to the protection of our security interest.
If we, pursuant to PPSA take all or any of the Goods in satisfaction of your obligations to us you agree that you will remain liable to us for the difference between the market value of the Goods at the time they are first able to be sold by us free from all rights and interests of you and other persons and the amount of your obligation for which you are in default.
You agree that we have unconditional access to any premises where the Goods are stored, or where they are reasonably thought to be stored, and acknowledge that we have the right to take possession of these Goods. You forfeit any civil or criminal claims in respect of this, and exempt us from being liable to any damage that may occur in taking possession of the Goods.
You agree that you waive to the maximum extent possible at law the following rights under the PPSA:
(i) receipt of a verification statement pursuant to section 157; and a statement of account under section 132;
(ii) to recover any proceeds under section 140;
(iii) to receive notice from us to dispose of collateral under section 130, or to retain collateral under section 135 and to object to that notice under section 137;
(iv) to redeem collateral under section 142;
(v) to reinstate a security agreement under section 143;
- to not have goods damaged or to be reimbursed in respect of such damage if we take possession of an accession of goods (section 92 and 93);
- to refuse permission to remove an accession until security is given by us for reimbursement as per section 94);
- to receive notice of removal of an accession under section 95);
- to apply to court for an order concerning removal of an accession; and
- any other right in favour of you that can be lawfully contracted out of under the PPSA (including but not limited to the provisions listed in section 115)
In addition you acknowledge that sections 96 and 125 do not apply to any security agreement created on the basis of these terms.
You will immediately notify us of any change in your name, address, contact or personal details to enable us to register a financing change statement if required. In the absence of such notification, the address we hold in our records is deemed to be your relevant address.
Additionally you will immediately inform us of any changes made to your business practices which may effect our interest/s.
You will not agree, encourage or allow any other person to register a financing statement without the express written consent of us and shall notify us as soon as you are aware of any other person taking steps to register an interest in the Goods.
We are not under any obligation to accept the return of any Goods or to provide refunds however, we may do so only on terms satisfactory to us.
We may terminate any order at any time without cause and in our absolute discretion
You may only terminate any order with our consent and on terms which indemnify us from all costs and losses in respect of the order sought to be cancelled and pay such amounts within 14 days of the cancellation.
Subject to these Terms, on termination, the part of the price paid (if paid in advance) will be refunded to you within 14 days of the cancellation of the relevant order, less the costs and losses associated with that order.
- Release and indemnity
You hereby release and indemnify us and agree to forever keep us indemnified from any and all cost, damage, liability, expense or loss, including indirect, consequential and special losses, that we may incur in relation to you or any third party, where the cost, damage, liability, expense or loss is caused by or contributed to by the Goods, any defect of fault in workmanship or design or their use or for any other reason whatsoever.
This indemnity applies to Goods we have supplied, that are on loan to you, or are in your possession for demonstration or training purposes.
- Risk and insurance
If you engage or pay a third party to deliver the Goods to you, risk of damage to or loss of the Goods the subject of an order passes to you immediately upon dispatch from us, that is, whilst on transit for delivery to you or where we are storing the goods for you pursuant to clause 6 at the date we store or arrange storage of the goods for you.
If you pay us a freight charge for delivering the Goods to you, risk of damage to or loss of the Goods the subject of an order passes to you immediately upon delivery at the nominated site.
Any property of yours (being property other than the Goods we are providing as part of an order) in our possession, custody or control for whatever purpose remain at your risk as regards loss and damage and you agree to effect appropriate insurances against such loss and damage.
You shall be liable for and must maintain at your own cost a policy of insurance with a reputable insurer to cover all such risks as may reasonably arise including public liability for all Goods which are in your possession. In relation to public liability such insurance shall be for an amount not less than $10,000,000.
You shall note us as an interested party under the insurance policies.
If you do not reside in Australia, you are responsible for importing the Goods and for the payment of any import duties or taxes of any kind.
At our discretion, we may provide a manufacturer’s warranty on certain terms in relation to the Goods.
In the absence of any written warranty, we do not provide any warranties in relation to the Goods.
Any warranty or condition which would otherwise be implied in any agreement between us or in these Terms (including, but not limited to, merchantability, suitability or fitness for purpose, quality, design, assembly, installation, operation or otherwise) is expressly denied and is excluded to the maximum extent permitted by law.
- Contractual limitation of liability
To the extent permitted by law, and notwithstanding Clause 15 entitled “Release and Indemnity”, our liability to you in respect of any cost, damage, liability, expense or loss (including those caused or contributed to by our negligence or breach of any condition or warranty) is limited to, at our absolute discretion:
(i) replacement of the Goods or the supply of equivalent Goods;
(ii) repair of the Goods supplied;
(iii) repay the purchase price to the extent payment has been received from you; or
(i) payment of the cost of replacing, repairing or acquiring equivalent Goods.
- Intellectual property
In this clause, “intellectual property” means all methodologies, processes, inventions, discoveries, works and novel designs whether or not registrable including any invention of or developments or improvements to equipment, methods or techniques, and any content on our Website.
All rights we may hold in any intellectual property associated with Goods sold or delivered or content on our Website remains our property, whether under licence from another or otherwise.
- Force majeure
Each of us will be released from our respective obligations under these Terms and any accepted Quotes (except as to payment and indemnity) in the event of national emergency, war, prohibitive governmental regulations or where any other cause beyond the reasonable control of either you or us, including strike, riot, lockout or trade disputes for a period of 7 days or more renders provision of the goods the subject of an accepted Quote or order impossible.
Further, you expressly consent to us using any personal information or any other information we hold on you for the purposes of investigating our creditworthiness including but not limited to conducting a credit check on you.
All notices required or permitted to be given under our Terms must be in writing and given by personal service, pre-paid postage, facsimile transmission or e-mail transmission at the addresses of the parties as stated in communications between us from time to time.
(C) NO WAIVER
No right under our Terms will be waived except as expressly agreed in writing and signed by us. We will not waive a right if we grant an extension or forbearance to you.
A waiver by us of any matter does not prejudice our rights in respect of any subsequent or other matter. Any non-exercise or partial exercise of, or any delay in exercising any right or remedy does not constitute a waiver of that right or remedy.
These Terms may only be amended in writing signed by each of us.
- Independent legal advice
You acknowledge that you have had adequate opportunity to obtain independent legal advice as to the meaning and effect of our Terms before they were accepted.
- Entire agreement
These Terms and any additional terms specified on any accepted Quote supersede all previous agreements between us and embody the entire agreement in relation to any accepted Quote or any other arrangement between us (except any other arrangement is governed by specific terms identified in a separate signed agreement between us in relation to that other arrangement).
Any previous correspondence, negotiations or representations between us do not bind either us or you and neither we nor you can rely on them.
We may delegate or sub-contract the performance of any obligation in our absolute discretion.
- No assignment
You may not assign the benefits or obligations under any agreement with us to any entity without our consent, which may be withheld in our absolute discretion.
If (but for this clause) a provision of these Terms would be illegal, void, unenforceable or contravene any law, these Terms are to be varied so as to give effect to the intention of the Terms or severed without affecting the enforceability of the other provisions and failing that, the offending provision is to be interpreted as if the provision was omitted.
- Disputes and arbitration
All questions, disputes or differences which arise between us with respect to these Terms or its subject matter are to be referred to a single arbitrator in accordance with the provisions of the Commercial Arbitration Act 1984 (NSW) or any re-enactment or statutory modification of that law for the time being in force.
- Governing law and jurisdiction
These Terms and the transactions contemplated by them are governed by the law of New South Wales, Australia.
We each irrevocably submit to the jurisdiction of the courts of New South Wales, Australia and all courts called to hear appeals from the courts of New South Wales in respect of the Terms or its subject matter.