Terms and Conditions
Terms and Conditions
These Terms and Conditions (the Terms) apply to the engagement of Hartley Williams & Co Pty Ltd (ACN 010 790 164) (the Company) by you (the Customer) for supply of Goods by the Company to the Customer.
2. Definitions and Interpretation
Agreement means the Particulars and these Terms and Conditions.
Credit Account means an account for credit and associated facility provided by the Company on the terms provided for at clause 6 of these Terms specifically and these Terms generally.
Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.
Goods means any goods (predominantly glass) supplied by the Company to the Customer and includes all related or ancillary goods.
Insolvency Event means, for the Customer, as applicable, being in liquidation or provisional liquidation, bankruptcy or under administration, having a controller (as defined in the Corporations Act 2001) or analogous person appointed to the Customer or any of the Customer’s property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay the Customer’s debts, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing the Customer’s own affairs for any reason, taking any step that could result in the Company becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001), entering into a compromise or arrangement with, or assignment for the benefit of, any of the Customer’s members or creditors, or any analogous event.
Interest Rate means 18% per annum.
Loss means any expense, cost or damage of any kind and includes Consequential Loss and a fine or penalty imposed by a statutory or other authority.
Real Property means all real property interests held by the Customer now or in the future.
Related Bodies Corporate has the same meaning as in the Corporations Act 2001.
Singular words include the plural and vice versa. A mention of anything after include, includes or including, does not limit what else might be included.
3.1 The Customer accepts these Terms by making any payment for the Goods, by receiving a copy of these Terms and instructing the Company with ordering of the Goods, by accepting the Terms by email on the Company’s website (Website) or other correspondence or by performing any of the actions contemplated by these Terms.
4. Customer Obligations
4.1 These Terms apply if the Company accepts any order for Goods from the Customer in accordance with these Terms. If the Company gives the Customer Goods oncredit in accordance with clause 6, the Company reserves the right at any time and for any reason in the Company’ sole discretion to refuse to supply any further Goods to the Customer and to refuse to supply any Goods to the Customer on credit terms.
4.2 If the Customer fails to comply with any of these Terms or in respect of any obligation to pay money to the Company when due under these Terms, suffers an Insolvency Event or makes any misrepresentation to the Company, the Customer’s Credit Account to the Company will become due and payable immediately.
4.3 The Customer agrees that it must pay, without any deduction or setoff, the price charged by the Company for Goods to be supplied to the Customer upon acceptance of the quote given by the Company to the Customer in relation to any request by the Customer, or, if a Credit Account is offered, in accordance with clause 6 or the date stipulated on of the respective tax invoice (the Fees), whichever is earlier.
4.4 Payments of Fees must be made in the manner and to the account stated as per the Company’s written direction as advised by the Company, from time to time
4.5 If payment for Goods through the Website are through any third party payment provider then, the Customer agrees to the terms that third party payment provider before making payment through such a provider.
4.6 Goods are priced at price per square metre unless otherwise stated and specification of a certain size by the Customer, if accepted by the Company, the Customer will incur a further fee as stated to the Customer by the Company in writing.
4.7 All prices quoted for any Goods are exclusive of GST and shipped “Free On Board”.
5. Website Use
5.2 Use of the Website and the content on the Website is at the Customer’s own risk, all content provided on the website is provided “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of the Company make any express or implied representation or warranty about the content or any products or content referred to on the Website. This includes (but is not restricted to) loss or damage suffered by the Company as a result of the following:
(a) Failure, performance, error, omission, interruption, or transmission, computer virus or other harmful component, loss of data, communication, line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) The accuracy, suitability or currency of any information on the Website, the content, or any of its content related products (including third party material and advertisements on the Website);
(c) Costs incurred as a result of you using the Website, the content or any of the products of the Website; and
(d) The content or operation in respect to links which are provided for your convenience.
5.3 For the avoidance of doubt and subject to clause 4, by placing an order for Goods via the Website you agree to these Terms.
5.4 The Website and content on the Website are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the content and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) or the content are owned or controlled for these purposes, and are reserved by the Company or its contributors.
5.5 The Company reserves all rights in relation to all intellectual property rights owned or otherwise held by the Company in relation to the Website, and no such rights will vest in the Customer as a result of the use by the Customer of the Website.
5.6 The Customer indemnifies the Company, its agents, employees, contributors and third party content providers from and against:
(a) All actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your content;
(b) Any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and/or
(c) Any breach of the Terms.
6.1 Subject to approval by the Company of the Customer for supply of Goods on credit (such approval being at the Company’s sole and absolute discretion) and the completion by the Customer of all required documentation including but not limited to any credit application provided by the Company to the Customer, the Company may provide the Customer with goods on credit in accordance with clause 6 of these Terms.
6.2 Credit Accounts relating to Goods provided on credit must be paid within 30 days from the end of the preceding month.
6.3 The credit amount of any facility offered to the Customer will be capped at the Company’s sole and absolute discretion and any credit provided (if any) will be at the Company’s sole and absolute discretion.
6.4 Failure by the Customer to abide by any of these Terms will result in suspension of any credit facility provided by Company, and the Company may pursue legal action in recovery of any debts owed by the Customer.
7.1 The Customer agrees that shipping of Goods will be through third party carriers selected by the Company, unless otherwise agreed by the parties.
7.2 If the Customer requires insurance for the Goods, then the Customer may request such insurance be quoted for by the Company prior to dispatch of any Goods or subject to the Customer utilising their own carrier, the Customer may organise its own insurance cover for the Goods.
7.3 Subject to clause 7.8, the Customer agrees that any Goods marked as “Hazardous” will not be shipped by the Company and must be collected by the Customer from a location which will be stated by the Company to the Customer in writing.
7.4 The Customer acknowledges and agrees that the Company disclaims any and all liability in relation to shipping of the Goods and the use of third party carriers and further, where required by any third party carrier the Customer will agree and assent to all terms and conditions stipulated by the third party carrier in relation to delivery of the Goods.
7.5 The Customer agrees that any estimate provided by the Company to the Customer is subject to clause 11.2 only an estimate which is provided by the third party carrier and relayed to the Customer and the Company will not under any circumstance be held liable for any delay in delivery of any Goods.
7.6 Subject to availability by any third party provider, the Company may provide with the Customer with a tracking sequence or method by which the Customer can track the Goods prior to or during delivery thereof.
7.7 Shipments of Goods outside of Australia may be liable for import duties, fees and/or taxes of the destination country. The Customer acknowledges and agrees that the Company is not and will not under any circumstance be responsible or liable for any such fees, import duties or taxes imposed on the Goods by the responsible authority of any destination country. Any such fees, import duties and/or taxes are the sole and absolute responsibility of the Customer.
7.8 Any goods marked as “Hazardous” may only be shipped by carriers which are accredited hazardous goods carriers.
8. Overdue accounts and security
8.1 Any amount not paid by the due date will incur interest at the Interest Rate.
8.2 The Customer agrees to pay all costs and expenses (including legal costs, commissions paid by the Company or its Related Bodies Corporate to any commercial or mercantile agent and dishonour fees) incurred by the Company in connection with the recovery of overdue amounts.
8.3 The Company may at its sole discretion suspend any Credit Account facilities if any payments due under these Terms are overdue and owing to the Company.
9. Retention of Title
9.1 The Company retains legal and equitable title in any Goods supplied to the Customer until payment in full for or in connection with the supply of the relevant Goods has been received by the Company. Until payment in full has been received, the following terms under this clause 9 apply in relation to title in said Goods.
9.2 Notwithstanding that title in the Goods remains with the Company until payment has been received in full, the Customer may sell such Goods or use the Goods in the ordinary course of the Customer’s business.
9.3 Until Goods are sold or used, the Customer must keep the Goods safe and free from deterioration, destruction, loss or harm, clearly designate the Goods as the property of the Company, adequately insure the Goods, store them in such a way they are clearly identified as the property of the Company and keep full and complete records, firstly, of the physical location of the Goods and, secondly, the ownership of the Goods by The Company.
The Company is irrevocably entitled at any time and from time to time before sale of any item of Goods by the Customer to inspect or to recover and retake possession of such Goods and otherwise exercise in relation to the Goods any of its rights whether those rights are as owner and/or unpaid seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way.
The Customer provides the Company (including for the avoidance of doubt its agents and employees) a non-exclusive licence to enter the premises where any Goods are stored or located for the purposes of recovery and repossession of the Goods in accordance with clause 9.4 of these Terms.
This reservation of title and ownership is effective whether or not the Goods have been altered from their supplied from, or commingled with other goods.
Any sale of the Goods by the Customer will be in the capacity of fiduciary agent of the Company and any right to bind the Company is expressly rejected.
The Customer will hold the proceeds of any such sale under clause 8.7 on trust for the Company in a separate account until all liability to the Company is discharged.
10. Security Interest
The retention of title arrangement described in clause 9 constitutes the grant of a purchase money security interest by the Customer in favour of the Company in respect of all present and after acquired Goods supplied to the Customer by the Company.
The Customer must immediately, if requested by the Company, sign any documents, provide all necessary information and do anything else required by he Company to ensure that The Company’s purchase money security interest is a perfected security interest.
The Customer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods until the Company has perfected its purchase money security interest.
For any Goods supplied that are not goods that are used predominately for personal, domestic or household purposes, the parties agree to contract out of the application of ss 95, 118, 121(4), 130, 132(4),135, 142 or 143 of the PPSA in relation to the Goods.
The Customer hereby waives any rights the Customer may otherwise have to:
Receive any notices the Customer would otherwise be entitled to receive under ss 95, 118, 121, 130, 132 or 135;
Apply to a Court for an order concerning the removal of an accession under section 97;
Object to a proposal of the Customer to purchase or retain any collateral under ss 130 and 135; and
Receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest the Company may have in Goods supplied to the Customer from time to time.
For the purposes of this clause “PPSA” means the Personal Property Securities Act 2009. The expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA. References to sections are to sections of the PPSA.
11. Risk and Liability
11.1 The Goods are dispatched at the Customer’s own risk.
11.2 The Company does not provide any warranty that the goods the subject of the consignment will be delivered by any particular time.
11.3 The Company excludes liability and responsibility in tort, for implied warranties and otherwise in so far as may be subject to the provision of the Competition and Consumer Act 2010 (Cth) or similar State Acts, for any loss of and/or damage to or deterioration of goods the subject of the consignment for any reason including but not limited to the neglect or willful conduct of the nominated carrier or third parties.
11.4 The Customer agrees that any liability excluded or limited by a carrier under its terms and conditions of trade shall apply to the same extent to the Company provided that the exclusion or limitation of liability is permitted by law.
11.5 The Company shall not be liable for any indirect, consequential or special losses suffered.
11.6 To the extent that Goods supplied by the Company are not goods of a kind ordinarily acquired for personal, domestic or household use and the Customer is deemed to be a consumer for the purposes of section 64A of the Australian Consumer Law, the Customer agrees that The Company’s liability for a failure to comply with a consumer guarantee that the Customer may have a benefit under the Australian Consumer Law (other than a guarantee under ss 51 (title), 52 (undisturbed possession) and 53 (undisclosed securities), is limited to, at the option of The Company, one or more of the following:
(a) Replacement of the goods or the supply of equivalent goods;
(b) The repair of the goods;
(c) The payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) Equivalent goods; or
(e) The payment of the cost of having the goods repaired.
11.7 The Company relies solely on the information provided by the Customer (or its employees and agents) regarding the goods being consigned when dealing with any carrier, supplier, statutory authority or governmental body, including the Australian Customs and Border Protection Service. The Customer indemnifies the Company against:
(a) Any liability incurred by the Company as a result of misleading, inaccurate, incomplete or incorrect information supplied by the Customer (or its employees or agents) to the Company; or
(b) Any liability incurred by The Company under the Customs Act 1901 or any other law.
11.8 Any amount payable by the Customer to the Company pursuant to the indemnity in this clause may be offset against any claim the Customer may have against the Company.
11.9 The Company may at its sole and absolute discretion allow refunds of the Goods in “change of mind” instances, however any such refund will be subject to a restocking fee equal to 15% of the price paid for the Goods further any such refund will be exclusive of any shipping costs.
11.10 The Decorative Glass on this site are manufactured using a rolled process. Rolled Glass Products will display characteristics such as scratches, draw lines, seed and bubble. These are inherent qualities of rolled glass and as such are not to be considered as faults. As glass rollers wear, manufacturers may adjust or alter roller patterns that result in new stocks not matching existing or previous stocks.
11.11 Glass Colours may vary from shipment to shipment.
12. Credit Reporting
12.1 If the Customer does not pay for the Goods or Services or both in accordance with the Particulars and/or these Terms, The Company may proceed to recover the debt from the Customer without further notice and report the debt to a credit reporting agency.
12.2 If the Company initiates debt recovery action against the Customer, the Customer agrees to be liable for all debt collection costs which includes any legal costs (on an indemnity basis), collection agency costs and any other expenses or disbursements, including but not limited to, Land and Property Information searches, Australian Securities and Investment Commission searches, process server fees, expert reports and court/tribunal fees. The Customer will also be liable to pay Interest on the outstanding debt.
13. Credit Check
13.1 By accepting these Terms, the Customer warrants that the Customer has a positive credit history and the Customer acknowledges and agrees that The Company may, at their sole discretion, undertake a credit check on the Customer to confirm this.
13.2 In the event that it is found that the Customer has breached the above warranty contained in the Credit Check Clauses, this will be regarded as a material breach of these Terms and will provide cause for immediate termination of these Terms by the Company.
14.1 The Company shall have a lien on the goods of the Customer in its possession or control. The lien secures all sums payable to The Company. In the case of non-payment then The Company shall have the right to sell such goods by public auction or private treaty for the purpose of recovering the amount owing.
15.1 Any claims against invoices charged must be made within thirty (30) days of invoice receipt. The Company reserves the right to reject/refuse any claims made after that date. All claims must be supported with a copy of the consignment note in question, and a copy of the applicable invoice, as well as any additional supporting documentation, to verify the Customer’s claim. Claims are always subject to the respective carrier’s approval.
16.1 The Company may terminate these Terms by notice in writing if:
(a) The Customer breaches these Terms and does not rectify the breach within thirty (30) days of receiving notice from the Company;
(b) Immediately upon material breach by the Customer of these Terms;
(c) An order is made that the Customer be wound up;
(d) An administrator, receiver or controller is appointed to the Customer; and
(e) The Customer otherwise becomes insolvent.
17. Fees Confidential Information
17.1 Any information in respect of Fees provided by the Company constitute confidential information of the Company and may not be disclosed without its consent.
18. Governing Law
18.1 These Terms are governed by and are to be interpreted according to the laws in Queensland and the parties submit to the exclusive jurisdiction of the courts operating in the State of Queensland , with the venue being Brisbane.
18.2 In the event that the parties are in dispute, the parties are prohibited from instituting legal proceedings concerning the subject matter of the dispute, controversy or claim arising out of, relating to or in connection with these , including any question regarding its existence, validity or termination, will be resolved by arbitration in accordance with the ICC Rules of Arbitration (or any rules which supersede these rules). The seat of arbitration shall be Brisbane, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one. This clause may be used as a bar to legal proceedings issued in any Court in any country which has ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
19. Fees exclusive of taxes and charges
19.1 The Fees quoted are exclusive of any government taxes or carrier surcharges or levies that may be imposed or become payable at some future time. Where GST is not included in the Fees quoted, GST will be applied to each invoice at the current rate of 10%. Fuel surcharges may be applicable at varying percentages.
20.1 It is agreed that the Company is supplying Goods to the Customer on the basis of the truth of the representations and warranties made by the Customer herein.
21.1 The Fees quoted may vary from time to time. The Company may otherwise vary any of these Terms at any time by giving the Customer thirty (30) days written notice. The Customer’s continued acceptance of Goods after that date will constitute acceptance of the variation.
22.1 The Company does not waive any of its strict legal rights in respect of these Terms and shall not be bound by any waiver made by its servants and agents on a particular occasion.
23. Privacy Act
23.1 The Customer, and signatories on behalf of the Customer in their personal capacity, agree to the terms of the Company’s Privacy pursuant to the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012).
24.1 Any provision of these Terms which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of these Terms or affecting the validity or enforceability of such provisions in any other jurisdiction.