Terms of Trade
Last updated:
1. Definitions
Acknowledgment Document means the document signed by the Client in conjunction with these Terms and Conditions of Trade, where applicable, acknowledging the security provided to the Seller in consideration of the supply of Goods or Services.
Client means the person, entity, or any person acting on behalf of and with the authority of the Client requesting the Seller to provide the Goods or Services, and includes:
each Client jointly and severally where there is more than one
each partner jointly and severally where the Client is a partnership
the Client in its own capacity as trustee where acting on behalf of a Trust
the Client’s executors, administrators, successors, and permitted assigns
Confidential Information means information of a confidential nature, whether oral, written, or electronic, including this Contract, intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, client information, and pricing details.
Contract means these terms and conditions together with any quotation, order, invoice, or other document expressed to be supplemental to them.
Cookies means small files stored on a user’s computer which may hold modest amounts of data, including Personal Information, specific to a particular client and website.
Goods means all Goods or Services supplied by the Seller to the Client at the Client’s request, and where the context permits, the terms Goods and Services are interchangeable.
GST means Goods and Services Tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Price means the price payable, plus GST where applicable, for the Goods as agreed in accordance with clause 6.
Seller means North Coast Fibreglass Pty Ltd, its successors and assigns, or any person acting on its behalf and with its authority.
2. Acceptance
The parties acknowledge and agree that:
they have read and understood these Terms and Conditions
they are taken to have exclusively accepted and are immediately bound by them if the Client places an order for, or accepts delivery of, the Goods
If there is any inconsistency between this Contract and any prior document or schedule, this Contract prevails.
Any amendment to this Contract must be in writing and agreed by both parties.
The Client acknowledges and accepts that:
supply of Goods on credit does not take effect until a credit application has been completed, approved, and a credit limit established
the Seller may refuse delivery if the supply requested exceeds the Client’s credit limit or the account exceeds payment terms
it is the Client’s responsibility to ensure the Goods are installed or fitted by a qualified technician and comply with all applicable Australian Standards
failure to comply with installation requirements may void any warranty
Any advice, recommendation, information, assistance, or service provided by the Seller is given in good faith and based on the Seller’s knowledge and experience, and is accepted without liability on the part of the Seller.
Electronic signatures are deemed accepted where the parties have complied with applicable legislation.
3. Errors and Omissions
The Seller accepts no liability for any alleged or actual errors or omissions:
resulting from an inadvertent mistake in the formation or administration of the Contract
contained in or omitted from any hard copy or electronic literature supplied by the Seller
Where the Client is required to place an order for Goods, the Client is responsible for supplying correct order information, including measurements and quantities.
The Client must pay for all Goods ordered, even where those Goods contain a Client error and even if Delivery is refused. The Seller may waive this right at its absolute discretion.
4. Change in Control
The Client must give the Seller at least fourteen (14) days’ prior written notice of any proposed change in ownership or any change in details, including:
name
address
contact phone or fax numbers
trustees
business practices
The Client is liable for any loss incurred by the Seller as a result of failure to comply with this clause.
5. Credit Card Information
The Seller will:
keep the Client’s personal details, including credit card details, only as long as necessary
not disclose credit card details to third parties
not unnecessarily disclose personal information except in accordance with the Privacy Act or where required by law
If any charges remain unpaid, the Client agrees that the Seller may immediately charge the Client’s nominated credit card for outstanding amounts and take any action required to recover those amounts from the card issuer.
6. Price and Payment
At the Seller’s sole discretion, the Price will be:
as shown on any invoice issued on placement of an order
the current price at the date of Delivery, according to the Seller’s price list
the Seller’s quoted price, valid for the stated period or otherwise for fourteen (14) days
The Seller reserves the right to change the Price:
where a variation to the Goods is requested
where a variation to the Services, plans, or specifications is requested
where labour or material costs increase beyond the Seller’s control
Variations:
will be charged on the basis of the Seller’s quotation
will be detailed in writing and shown on the Seller’s invoice
must be responded to by the Client within ten (10) working days
may be added to the Price if no response is received
must be paid in full on completion
A reasonable non-refundable deposit may be required upon placement of an order.
Time for payment is of the essence. The Price may be payable:
on or before Delivery
on completion of the Services
thirty (30) days from the invoice date
or, if no notice to the contrary is given, seven (7) days from the invoice date
Payment may be made by:
cash
electronic or online banking
credit card, subject to any transaction surcharge
any other agreed method
The Client is not entitled to set off or deduct any sums from the Price or withhold payment because part of an invoice is in dispute. Disputed amounts must be raised in writing within three (3) business days, but the full invoice remains due until the dispute is reviewed.
Unless otherwise stated, the Price does not include GST. GST and any other applicable taxes and duties must be paid in addition to the Price, unless expressly included.
7. Delivery of Goods
Delivery occurs when:
the Client or the Client’s nominated carrier takes possession of the Goods at the Seller’s address, or
the Seller or the Seller’s nominated carrier delivers the Goods to the Client’s nominated address, whether or not the Client is present
Delivery costs are payable by the Client as quoted or otherwise notified before order placement.
The Seller may deliver the Goods in separate instalments, each of which may be separately invoiced and must be paid accordingly.
The Client must take Delivery whenever the Goods are tendered.
Any time specified for Delivery is an estimate only. The Seller is not liable for loss or damage caused by late Delivery, although both parties agree to use reasonable endeavours to meet agreed timeframes.
Where the Seller cannot supply the Goods as agreed solely because of the Client’s action or inaction, the Seller may charge a reasonable fee for redelivery and or storage.
8. Accuracy of Client’s Dimensions and Data
All levels, grids, site dimensions, as-builts, and other design specification data must be supplied by the Client.
The Client acknowledges that:
it is the Client’s responsibility to verify the accuracy of the information before the Seller undertakes work
the Seller is entitled to rely on that information
the Seller accepts no responsibility for any loss, damage, or cost resulting from inaccurate Client-supplied information or failure to comply with this clause
9. Risk
Risk in the Goods passes to the Client on Delivery, and the Client must insure the Goods from that point.
If the Goods are damaged or destroyed after Delivery but before ownership passes, the Seller is entitled to any insurance proceeds relating to the Goods.
If the Client requests the Goods be left outside the Seller’s premises for collection, or delivered to an unattended location, the Goods are left at the Client’s sole risk.
The Client acknowledges that:
the Seller is only responsible for Goods supplied or replaced by the Seller
the Seller is not liable for components supplied by third parties
the Seller is not liable for defects or damage resulting from incorrect or faulty installation by a third party
The Client further acknowledges that the Goods may:
vary in shade, colour, texture, surface, or finish
fade or change colour over time
expand, contract, or distort due to heat, cold, or weather
mark or stain if exposed to certain substances
be damaged or disfigured by impact or scratching
The Seller will use reasonable efforts to match samples and batches, but is not liable for differences that occur.
10. Compliance with Laws
Both the Client and the Seller must comply with all statutes, regulations, and bylaws applicable to the Services.
Where the Client supplies products for the Seller to use, the Client accepts responsibility for the suitability and intended use of those products. If the Seller reasonably believes the products are non-conforming, the Seller may halt the Services until suitable products are sourced, and any resulting variation costs may be charged accordingly.
11. Title
Ownership of the Goods does not pass to the Client until:
the Client has paid all amounts owing to the Seller, and
the Client has met all other obligations to the Seller
Until ownership passes:
the Client holds the Goods as bailee only
the Client must return the Goods to the Seller on request
the Client holds insurance proceeds on trust for the Seller
the Client must not sell, dispose of, or part with possession of the Goods except in the ordinary course of business and for market value
the Client must hold any sale proceeds on trust for the Seller and pay them to the Seller on demand
the Client must not charge or grant any encumbrance over the Goods
the Seller may enter premises where the Goods are believed to be stored and recover possession
the Seller may commence proceedings to recover the Price even if ownership has not yet passed
12. Personal Property Securities Act 2009 (PPSA)
Upon agreeing to these terms in writing, the Client acknowledges that the Contract creates a security interest in all Goods previously supplied and to be supplied in the future, and in the proceeds of those Goods.
The Client undertakes to:
promptly sign further documents and provide further information reasonably required by the Seller
reimburse the Seller for PPSA registration costs
not register financing change statements or financing statements relating to the Goods in favour of third parties without the Seller’s prior written consent
immediately advise the Seller of material changes in business practices affecting the proceeds of Goods
The Client waives various rights and notices under the PPSA to the extent permitted by law. Nothing in this clause is intended to contract out of the PPSA except where expressly stated.
13. Security and Charge
As security for payment and performance under this Contract, the Client grants the Seller a security interest by way of a floating charge over all present and after-acquired assets of the Client, to the extent necessary to secure repayment of monies owed.
If the Client defaults and the Seller considers the security insufficient, the Client grants the Seller a further charge over any real property or land now owned or later acquired by the Client, enabling the Seller to lodge a caveat to secure the Client’s obligations.
The Client indemnifies the Seller for all costs and disbursements, including legal costs on a solicitor and own client basis, incurred in exercising rights under this clause.
14. Defects, Warranties and Returns
The Client must inspect the Goods on Delivery and notify the Seller in writing within seven (7) days of any evident:
defect or damage
shortage in quantity
failure to comply with description or quote
Other defects must be notified as soon as reasonably possible after they become evident, and the Client must allow the Seller to inspect the Goods.
Nothing in these Terms excludes any statutory guarantees or warranties that cannot be excluded under applicable law, including the Competition and Consumer Act 2010 (CCA).
If the Client is a consumer under the CCA, the Seller’s liability is limited to the extent permitted by law.
If the Client is not a consumer, the Seller’s liability for defects is:
limited to any express warranty or warranty card provided
limited to any warranty the Seller receives from the manufacturer, where applicable
otherwise excluded to the fullest extent permitted by law
Returns will only be accepted where:
the Client has complied with the inspection and notice requirements
the Seller agrees the Goods are defective
the Goods are returned within a reasonable time
the Goods are returned in as close as possible to the condition in which they were delivered
The Seller is not liable for defects or damage caused by:
improper maintenance or storage
use other than the intended purpose
continued use after a defect becomes apparent
failure to follow instructions or guidelines
fair wear and tear, accident, or act of God
Second-hand Goods are supplied with all faults unless the Client is a consumer under the CCA.
The Seller may accept non-defective Goods for return at its discretion, subject to:
handling fees of up to 20% of the value of the returned Goods
any applicable freight costs
Customised, made-to-order, or non-stocklist items are not acceptable for credit or return, subject to clause 14.1 and applicable law.
15. Intellectual Property
Where the Seller has designed, drawn, or developed Goods for the Client, all copyright in the designs, drawings, and documents remains the property of the Seller.
The Client must not use any such designs, drawings, or documents without the Seller’s express written approval.
The Client warrants that all designs, specifications, or instructions provided to the Seller will not cause the Seller to infringe any patent, registered design, or trademark, and indemnifies the Seller against any third-party claims arising from such infringement.
The Client agrees that the Seller may use documents, designs, drawings, or Goods created for the Client for marketing or competition entry purposes at no cost.
16. Default and Consequences of Default
Interest on overdue invoices accrues daily from the due date at a rate of 2.5% per calendar month, and may compound monthly at the Seller’s discretion.
If the Client owes the Seller money, the Client indemnifies the Seller for all costs and disbursements incurred in enforcing its rights, including:
legal costs on a solicitor and own client basis
internal administration fees
contract default fees
recovery costs
bank dishonour fees
If a payment made by the Client is reversed, and that reversal is found to be illegal, fraudulent, or in contravention of the Client’s obligations, the Client remains liable for the reversed amount and any associated costs.
Without prejudice to other remedies, all amounts owing become immediately due and payable if:
payment becomes overdue
the Seller reasonably believes the Client cannot pay when due
the Client exceeds any credit limit
the Client becomes insolvent or enters into arrangements with creditors
a receiver, manager, or liquidator is appointed to the Client or its assets
17. Cancellation
If either party breaches any obligation under these Terms, the other party may suspend or terminate the supply or purchase of Goods and or Services immediately by written notice.
If the Seller is unable to deliver Goods or Services for reasons beyond its reasonable control, it may cancel the Contract or Delivery before supply and refund any money paid. The Seller is not liable for any resulting loss or damage.
The Client may cancel Delivery by written notice within forty-eight (48) hours of placing the order. In that case:
the Client is not liable for Seller costs except where a deposit is payable
failure to otherwise accept Delivery places the Client in breach of the Contract
Orders for customised or non-stocklist Goods cannot be cancelled once production has commenced or an order has been placed.
18. Privacy Policy
All recorded information held or used by the Seller is Personal Information and Confidential Information. The Seller acknowledges its obligations under the Privacy Act 1988, the Privacy Amendment (Notifiable Data Breaches) Act 2017, and where applicable, EU data privacy laws including the GDPR.
If the Seller becomes aware of a data breach that may result in serious harm to the Client, it will notify the Client in accordance with applicable law.
The Seller may use Cookies and similar tracking technologies on its website. These may collect:
IP address
browser and email client type
website usage and traffic information
email campaign reporting data
If the Client later wishes to withdraw consent to Cookies, the Client may manage privacy controls through their web browser.
The Client agrees that the Seller may exchange information with credit providers and related bodies corporate for purposes including:
assessing an application
notifying defaults
exchanging account status information
assessing creditworthiness and repayment history
The Client consents to:
the Seller obtaining consumer credit reports
personal credit information being used and retained for the supply of Goods, credit assessment, payment processing, and debt collection
the Seller giving information to a credit reporting body for permitted purposes, including defaults and overdue monies
The Client may request by email:
a copy of Personal Information held by the Seller
correction of incorrect Personal Information
that Personal Information not be disclosed for direct marketing purposes
The Seller will destroy Personal Information on request where it is no longer required, unless retention is necessary to fulfil the Contract or comply with law.
The Client may make a privacy complaint by email. The Seller will respond within seven (7) days of receipt and take reasonable steps to decide the complaint within thirty (30) days.
19. Unpaid Seller’s Rights
Where the Client has left an item with the Seller for repair, modification, exchange, or other service, and has not paid all monies owing, the Seller has:
a lien over the item
the right to retain or sell the item in accordance with applicable legislation relating to uncollected goods
The lien continues despite the commencement of proceedings or judgment for monies owing.
20. Building and Construction Industry (Security of Payment) Act 2021
If there are disputes or claims for unpaid Goods or Services, the provisions of the Building and Construction Industry (Security of Payment) Act 2021 may apply.
Nothing in this Contract is intended to contract out of that Act except where permitted.
21. Service of Notices
Any written notice under this Contract is deemed given and received if delivered:
by hand
by leaving it at the relevant address
by registered post
by facsimile, on receipt of transmission confirmation
by email to the other party’s last known email address
A posted notice is deemed served in the ordinary course of post unless the contrary is shown.
22. Trusts
If the Client is acting as trustee of a trust, then whether or not the Seller has notice of the trust, the Client covenants that:
the Contract extends to all rights of indemnity the Client may have against the trust, trustees, and trust fund
the Client has full authority to enter into the Contract
the trust terms do not exclude or limit the Client’s right of indemnity
the Client will not release that indemnity or commit any breach of trust prejudicing it
Without the Seller’s written consent, the Client must not:
remove, replace, or retire as trustee
alter or vary the terms of the trust
advance or distribute trust capital
resettle the trust fund or trust property
23. General
Any dispute or difference arising under these Terms must first be submitted to mediation before external dispute resolution, arbitration, or court proceedings. The parties will share the mediator’s fees equally.
If any provision of these Terms is invalid, void, illegal, or unenforceable, it will be severed and the remaining provisions will continue in full force.
These Terms and any Contract to which they apply are governed by the laws of Western Australia and subject to the jurisdiction of the courts of that state. These Terms prevail over any terms and conditions of the Client.
The Seller may:
licence or assign its rights and obligations without the Client’s consent, provided there is no detriment to the Client
subcontract any part of the Services without being relieved of liability
amend its general terms and conditions for future Contracts by providing written notice to the Client
The Client may not licence or assign its rights without the Seller’s written approval and has no authority to give instructions directly to the Seller’s subcontractors.
Neither party is liable for default caused by events beyond reasonable control, including:
acts of God
war
terrorism
strikes
lock-outs
industrial action
fire
flood
storm
pandemics
government-imposed regulations, directions, measures, or border lockdowns
This does not excuse the Client from payment obligations once the force majeure event has ceased.
Both parties warrant that:
they have the power to enter into the Contract
they have obtained all necessary authorisations
they are not insolvent
the Contract creates binding and valid legal obligations
The parties’ rights and obligations do not merge on completion and survive execution and delivery of any assignment or related document. If any term becomes invalid, illegal, or unenforceable, it is severed without affecting the remainder of the Contract.