Terms & Conditions of Sale

TERMS & CONDITIONS OF SALE

Applies to: All Goods provided by the Supplier to the Customer are subject to the terms and conditions set out below. Where a Customer is a Consumer or a Small Business, clause 28 of these Terms of Sale applies and each clause or sub-clause in the Terms of Sale marked with ‘*' is amended by that clause 28.

If the Customer has an approved commercial credit account, the Credit Terms also apply and form part of these Terms of Sale: LINK_TO_CREDIT_TERMS

1. Contract, Quotation, Order, Special Conditions

1.1 A Contract between the Supplier and the Customer is formed when the Supplier accepts an Order from the Customer. The Supplier may accept or reject any Order in its absolute discretion (in whole or in part).
1.2 Each Order accepted by the Supplier (subject always to clause 26.3), together with these Terms of Sale, the Quotation (if any) and any Special Conditions, will constitute one Contract.
1.3 By placing an Order, the Customer accepts these Terms of Sale, subject to any Special Conditions agreed in writing.
1.4 Where an Order is placed by a Customer otherwise than in writing, any written acceptance of the Order by the Supplier will be deemed to correctly record the Order, unless the Customer notifies the Supplier of an error in the Supplier's record of the Order on the date of the Customer's receipt of the Order written acceptance. *
1.5 The Supplier may provide a Quotation. A Quotation:
(a) shall remain valid for a period of 30 days from the date of that Quotation, unless otherwise specified in writing;
(b) does not form an offer or obligation to supply Goods by the Supplier and may be withdrawn, varied or extended by the Supplier in writing at any time prior to the Supplier accepting an Order relating to that Quotation in accordance with clause 1.1; and
(c) is exclusive of GST.
1.6 For the Quotation, or otherwise in communications with the Customer prior to the Order, the Supplier may make an estimate of dimensions and quantities of Goods based on Customer Material. Any such estimate is provided to the Customer as indicative only and the Supplier is not responsible for any mistakes in the estimate nor for verifying the accuracy of the Customer Material. The Customer must check any estimate and, in any event, accepts full responsibility for calculating the dimensions and quantities of Goods in an Order without reliance on any estimate provided by the Supplier (whether in the Quotation or otherwise). *
1.7 If the Customer requires Goods for a particular purpose, that purpose and any related requirements, and the Supplier's agreement that the Goods will meet those requirements, must be agreed in writing in the Special Conditions. If the Customer does not specify the particular purpose and/or the Supplier does not expressly agree in writing that the Goods will be fit for the particular purpose, then the Customer agrees that it did not rely on the skill or judgment of the Supplier as to the suitability of the Goods in an Order for a particular purpose. *
1.8 If the quantities or weights of Goods supplied are subject to tolerances under an applicable Australia Standard, the Goods supplied are subject to those tolerances. Such Goods may be invoiced at the maximum tolerance permitted under the Australian Standard.

2. Price

2.1 The Price will be as agreed between the parties in writing in the Contract, or failing that as determined by the Supplier in its discretion, based on: *
(a) the price indicated on the Supplier's then current price list (as applicable at the date of the Contract); or
(b) the price in the Quotation which, subject to any variation or withdrawal of the Quotation in accordance with clause 1.5 or the correction of any error or omission, shall be binding on the Supplier provided the Customer responds to the Quotation within the period specified in clause 1.5.
2.2 The Price is exclusive of GST (unless agreed otherwise in writing). The Customer must pay GST on any taxable supply made by the Supplier to the Customer. The payment of GST is in addition to any other consideration payable by the Customer for a taxable supply. *
2.3 The Supplier may vary the Price in a Contract by 5 Business Days' notice to the Customer if: *
(a) there is any movement in the cost of supplying the Goods specified in the Order (including, without limitation, any actual increase in the costs to the Supplier in manufacturing, procuring, or transporting the Goods);
(b) the supply of the quoted Goods does not proceed in accordance with the delivery timetable provided on or prior to the time the Order is accepted;
(c) the supply of the quoted Goods and is suspended for more than 30 days; or
(d) the Supplier becomes liable to pay any tax, duty, excise, levy or additional amount in respect of the supply of the Goods as a result of a change in legislation or regulation or its interpretation.
2.4 The Customer acknowledges that the Supplier may charge a payment surcharge for credit card transactions equal to the Supplier's reasonable cost of acceptance.
2.5 A Supplier's price list is current as at the date noted in that price list and may be amended by the Supplier at any time. A change to a price list by the Supplier after the date of acceptance of an Order does not amend the Price in a Contract (unless the Price in a Contract is amended in accordance with clause 2.3).

3. Payment terms

3.1 Where the Customer has a commercial credit account with the Supplier, invoices are due and payable on the last working day of the month after the month in which the Goods were delivered (or such other date agreed by the parties in writing).
3.2 Where the Customer does not have an approved commercial credit account, payment of the Price must be made on the day that the Customer places an Order (or by such later time nominated in the Supplier's invoice or agreed in the Special Conditions).
3.3 If the Price is payable on the day that an Order is placed under clause 3.2, the Supplier is under no obligation to procure or supply Goods until the amount payable under clause 3.2 has been received by the Supplier in cleared funds.
3.4 The Customer must check all invoices and advise the Supplier of any errors or omissions within 5 Business Days of receipt. Failing advice from the Customer that the invoice contains an error or omission, the invoice may be deemed accepted by the Customer. *

4. Default in payment

4.1 If the Customer does not pay for the Goods supplied by the Supplier on or before the due date for payment in the Contract, the Supplier may:
(a) immediately suspend or cancel any Order or the delivery or collection of any Goods, and may then promptly give a written notice of the suspension or cancellation to the Customer;
(b) issue a written demand to the Customer demanding payment of the outstanding amount in full within 7 days; and *
(c) if the Customer has a commercial credit account, immediately suspend that account.

4.2 If the Customer fails to pay the outstanding amount in full by the time set out in the written demand under clause 4.1:
(a) the Supplier may charge interest on the overdue amount, which will accrue and be recoverable from and including the due date for payment until and including the day that payment in full is received. The interest rate on any outstanding debt is 3% above Westpac Banking Corporation's overdraft business rate from time to time (or, if that rate no longer exists, the rate for a business overdraft at another major Australian bank);
(b) if the Customer has a commercial credit account, the Supplier may immediately cancel the account and give written notice of the cancellation to the Customer and all liabilities of the Customer to the Supplier will become immediately due and payable; and
(c) the Customer will indemnify the Supplier against and reimburse on written demand the Supplier's: *
(i) costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Customer, including collection costs, debt recovery fees and legal costs on an indemnity basis; and
(ii) losses, costs, expenses and disbursements incurred in connection with or arising from the suspension or cancellation of any Order or the delivery or collection of Goods in accordance with clause 4.1(a), including restocking fees, freight and handling costs, third party costs and bank charges.

4.3 The Supplier will not in any circumstances be liable for any loss or damage suffered by the Customer or any third party arising as a result of a suspension or cancellation of an Order or delivery or collection of any Goods or the provision of Services arising as a result of or in connection with clause 4.1(a).

5. Variations

5.1 Subject to clause 2.3, any variation to a Contract must be agreed between the parties in writing prior to the amended Goods being supplied, including any changes in Price to reflect the amended Goods.

6. Cancellation or suspension of Orders

6.1 The Supplier may suspend and/or cancel an Order under clauses 4.1 (Default in payment), 12 (Insolvency) and 22 (Force majeure) of these Terms of Sale.

6.2 Unless agreed in writing by the parties, the Customer may not cancel an Order (or any part of an Order) once accepted by the Supplier, and, subject to clause 8, delivered Goods cannot be returned. If the Supplier agrees to cancel an Order or to accept a return of delivered Goods (except a return in accordance with clause 8.4(b)), the Supplier may require the Customer to reimburse the Supplier for all losses, costs and expenses it has incurred or may incur as a result of the cancellation of an Order (in whole or part) or the return of delivered Goods, including restocking fees, the cost of returning Goods to the Supplier (including freight and handling costs), the cost of any damage to Goods returned (including, but not limited to, damage that occurs in return transit), third party costs, bank charges and any other incidental expenses incurred on any Order cancelled or Goods returned. *

6.3 In order for Goods to be returned to the Supplier (except under clause 8.4(b)), they must be undamaged and packed and wrapped appropriately. The Supplier may reject any proposed return of Goods that does not meet these criteria.

6.4 The Customer may not request the cancellation of an Order or (subject to clause 8) the return of Goods, where the Goods (or the Goods the subject of the Order) have been specifically produced, processed, manufactured or purchased by the Supplier at the Customer's request.

6.5 Unless agreed in writing by the parties, the Customer may not suspend an Order (or any part of an Order) or delay or defer delivery of Goods. If the Supplier agrees to suspend, delay or defer, the Supplier may require an adjustment to the Price (under clause 2.3) and may require the Customer to reimburse the Supplier for all losses, costs and expenses it has incurred or may incur as a result of the suspension, delay or deferral, including, without limitation, a storage fee, restocking fees, and any other incidental expenses or costs incurred on any part of the Order or delivery. The Customer agrees to indemnify the Supplier against any liability or loss incurred by the Supplier as a result of any claim by the Customer or by a third party against the Supplier or the Customer, caused by, arising from or in connection with any suspension of an Order or delay or deferral of a delivery of Goods agreed in accordance with this clause 6.5. *

7. Delivery

7.1 The Customer will pay for all costs associated with delivery of the Goods, unless otherwise agreed in writing.
7.2 Delivery costs will be as agreed in writing or if not agreed in writing, as set out in the Quotation or if there is no Quotation and no written agreement, as set out in the relevant price list for the Goods.
7.3 Any period or date for delivery provided by the Supplier is an estimate only and is not a contractual commitment. The Supplier will not in any circumstances be liable for any loss or damage suffered by the Customer or any third party for failure by the Supplier to meet any estimated period or date for delivery of the Goods.
7.4 The Customer must ensure it can take delivery of the Goods at the time the delivery is scheduled. Unless agreed in writing prior to delivery, unloading of all Goods shall be the Customer's responsibility and the Supplier will not be responsible for any damage from the unloading of the Goods by the Customer or by anyone on its behalf, including, amongst others, by the Supplier's employees, agents or contractors. *

7.5 Delivery is deemed to occur:
(a) where the Goods are delivered “ex works”:
(i) when the Goods are collected from the Supplier by the Customer or any third party on behalf of the Customer; or
(ii) when the Customer's nominated carrier takes possession of the Goods, in which event the carrier shall be deemed to be the Customer's agent;
(b) where the Goods are delivered by the Supplier:
(iii) where the Customer (or its representative) will unload the Goods, when the Supplier delivers the Goods to the Customer's nominated site or to a location close to the Customer's nominated site or where reasonably directed by the Customer; or
(iv) if the parties agree that the Supplier will unload the Goods, when the Supplier has unloaded the Goods at or close to the Customer's site or where reasonably directed by the Customer.

7.6 Where the Customer has engaged the Supplier to deliver the Goods, the Customer agrees that:
(a) it must ensure that site access is available for delivery which is suitable and safe for heavy vehicles (with a portable crane);
(b) it must notify the Supplier prior to delivery of any special on-site requirements with respect to delivery (including unusual site access requirements, irregular terrain and on-site safety requirements and regulations);
(c) if the Supplier's delivery driver or contractor is not satisfied that access to the delivery site is safe, or if the Customer is not in attendance at the site at the time the Goods are delivered, the Supplier may unload the Goods at the kerbside close to the site and the Supplier's evidence of delivery to the kerbside shall be deemed acceptance of the delivery; and
(d) unless the Customer gives notice under clause 8.1, the Supplier's delivery docket setting out the quantity, description, date, time and place of delivery shall be conclusive evidence of the Supplier's delivery.

7.7 If a vehicle delivering Goods to the site specified by the Customer is disabled or damaged due to the condition of the site, the Customer is liable for, and indemnifies the Supplier against, the cost of salvage of, or repair to, the vehicle. The Customer indemnifies the Supplier (and keeps the Supplier indemnified) against any loss or damage suffered by the Supplier, or as a consequence of the Supplier becoming liable to any third party, directly or indirectly, as a result of:
(a) the Supplier's officers, agents or employees entering the Customer's site, or unloading the Goods, at the actual or implied request of the Customer; or *
(b) the Customer's officers, agents or employees unloading the Goods from any vehicle and/or loading the Goods onto any vehicle.

7.8 The Customer acknowledges and agrees that:
(b) additional costs may apply where the Supplier's delivery vehicle is held on site for more than one hour; *
(c) the Supplier is entitled to charge a storage fee and/or redelivery charges in the event the Customer does not, or is unable to, accept delivery of the Goods at the time agreed or scheduled; *
(d) the Supplier may deliver Goods by instalments and require payment for each separate instalment in accordance with these Terms of Sale; and
(e) it is not relieved from any obligation arising under a Contract or these Terms of Sale by reason of any delay in delivery.

7.9 The Customer must notify the Supplier in writing of any complaint regarding a failure to deliver on, or a delay in delivery from, an agreed or scheduled date within 3 business days of the failure or delay in delivery. The Customer waives, foregoes, abandons and forgives any claim the Customer may have against the Company for the failure to deliver or delay in delivery unless the Customer gives the Supplier notice in accordance with this clause 7.9. *

8. Returns

8.1 The Customer must inspect the Goods promptly after delivery and must notify the Supplier in writing by the earlier of (i) 24 hours after delivery to a construction site or 48 hours after delivery elsewhere, or (ii) the time that the Customer deals with the Goods, of any claim that the Goods (in whole or in part) are not in accordance with the Contract, including relevant details. *

8.2 If a notice is given under clause 8.1:
(a) the Customer must allow the Supplier to inspect the Goods the subject of the claim, including allowing reasonable access to the site to inspect the Goods; and
(b) the Customer must leave the Goods in the place, state and condition in which they were delivered until the Supplier has inspected the Goods. *

8.3 If the Customer fails to give notice under clause 8.1, refuses to allow the Supplier to inspect the Goods or fails to comply with clause 8.2(b) then, to the extent permitted by law, the Goods must be treated as having been accepted by the Customer and the Customer shall have no claim against the Supplier for damage to, short supply of or supply of incorrect Goods and the Customer must pay for the Goods in accordance with the terms of the Contract.

8.4 After the Supplier has inspected the Goods subject of a notice under clause 8.1:
(a) if the Supplier reasonably determines that: *
(i) those Goods are not damaged;
(ii) those Goods were damaged by the Customer or the Customer failed to take reasonable steps to prevent those Goods from being damaged on or following delivery or collection;
(iii) the Goods were installed or processed in a manner not compliant with the applicable Australian Standard and/or any guidelines relating to the installation or specifications of the Goods; or
(iv) those Goods are otherwise correct for the Contract,
the Customer is deemed to have accepted those Goods and the Supplier is entitled to the Price; or
(b) if the Supplier reasonably determines that:
(i) those Goods are damaged; and
(ii) the Customer did not damage those Goods or fail to take reasonable steps to prevent those Goods from being damaged on or following delivery or collection (including, but not limited to, on processing or installation); or
(iii) those Goods are otherwise incorrect for the Contract,
the Supplier may reclaim the Goods and the Customer is entitled to, at the option of the Supplier, one or more of the following:
(iv) the replacement of those Goods or the supply of equivalent Goods;
(v) the repair of those Goods;
(vi) the payment of the cost of replacing those Goods or acquiring equivalent goods; or
(vii) the payment of the cost of having those Goods repaired.

8.5 Except for a return of Goods reasonably determined by the Supplier to fall within clause 8.4(b), any other return of Goods is subject to the provisions of clause 6. For Goods that fall within clause 8.4(b), if the Supplier determines that the delivered Goods should be returned to the Supplier, any such return of Goods will be at the Supplier's cost and risk.

9. Risk

9.1 Risk of damage to, or loss of, the Goods passes to the Customer on delivery or collection.
9.2 If the Customer requests that Goods are delivered either to an unattended site, left outside, or are left outside the Supplier's premises for collection, or the Goods are stored by the Supplier in the event the Customer does not accept delivery, the Customer acknowledges that the Supplier will deliver the Goods as requested or store the Goods at the Customer's sole risk.

10. Retention of title

10.1 Until such time as the Customer has made payment in full for the Goods and until such time as the Customer has made payment in full of all other money owing by the Customer to the Supplier:
(a) title in the Goods does not pass to the Customer;
(b) the Customer agrees that property and title in the Goods will not pass to the Customer and the Supplier retains the legal and equitable title in those Goods supplied and not yet sold;
(c) the Customer will hold the Goods in a fiduciary capacity for the Supplier and agrees to store the Goods in such a manner that they can be identified as the property of the Supplier, and will not mix the Goods with other similar goods; and
(d) the Customer will be entitled to sell the Goods or any goods into which the Goods are incorporated or to which the Goods are affixed (Sold Goods) in the ordinary course of its business, but will sell as agent and bailee for the Supplier and the proceeds of sale of the Sold Goods and/or any obligation owed to the Customer from the sale of the Sold Goods will be held by the Customer on trust for the Supplier for an amount equal to all amounts owing by the Customer to the Supplier under any Contract(s) and/or these Terms of Sale.

10.2 The Customer's liability to the Supplier under these Terms of Sale will not be discharged by the operation of clause 10.1(d) (but its levels of indebtedness will be reduced by the extent of the funds paid to the Supplier).

10.3 The Customer agrees that whilst title in the Goods remains with the Supplier, the Supplier has the right, with prior notice to the Customer, to enter upon any premises occupied by the Customer (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Customer) to inspect the Goods of the Supplier and, when payment is overdue, to immediately enter the premises (as the Customer's invitee) to repossess the Goods which may be in the Customer's possession, custody or control when payment is overdue.

10.4 The Customer will be responsible for the Supplier's costs and expenses (including legal costs, on an indemnity basis) in exercising its rights under clause 10.3 where the Customer is otherwise in default of the Terms of Sale or the Contract. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Customer against the Supplier, its employees, servants, or agents. *

11. Personal Property Securities Act

11.1 The Customer acknowledges that by agreeing to these Terms of Sale, the Customer grants a security interest to the Supplier in all Goods (and their Proceeds) supplied by the Supplier to the Customer (or to its account) now or in the future. For the avoidance of doubt, the Supplier's interest constitutes a ‘purchase money security interest’ pursuant to the PPSA.

11.2 The Customer undertakes to do anything that is required by the Supplier:
(a) so that the Supplier can acquire and maintain one or more perfected security interests under the PPSA and has priority in respect of the Goods and their Proceeds;
(b) to register a financing statement or financing change statement; and
(c) to ensure that the Supplier's security position, and rights and obligations, are not adversely affected by the PPSA.

11.3 Unless the Customer has obtained the Supplier's prior written consent, the Customer undertakes not to:
(d) register a financing change statement in respect of a security interest contemplated or constituted by these Terms of Sale; and
(e) create or purport to create any security interest in the Goods, nor register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party.

11.4 The Customer:
(f) waives its right under section 157 of the PPSA to receive a copy of the verification statement relating to a security interest created under these Terms of Sale;
(g) agrees that to the extent permitted by the PPSA, the following provisions of the PPSA will not apply and are contracted out of: section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143; and
(h) agrees that the following provisions of the PPSA will not apply and the Customer will have no rights under them: section 127; section 129(2) and (3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.

11.5 The Customer agrees that it will, if requested by the Supplier, sign any documents, provide any information, or do anything else the Supplier reasonably requests, to ensure that any security interest created in the Supplier's favour by these Terms of Sale is, to the fullest extent possible under the PPSA, perfected in accordance with Part 2.2 of the PPSA.

11.6 Notwithstanding section 275 of the PPSA, the parties agree to keep confidential all information of the kind referred to in section 275 of the PPSA, unless compelled by law to disclose such information.

11.7 The Customer irrevocably grants to the Supplier the right to enter upon the Customer's property or premises, with notice, and without being in any way liable to the Customer or to any third party, if the Supplier has cause to exercise any of its rights under sections 123 and/or 128 of the PPSA.

11.8 The Customer will be responsible for the Supplier's costs and expenses (including legal costs, on an indemnity basis) in exercising its rights under clause 11.7 where the Customer is otherwise in default of these Terms of Sale. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Customer against the Supplier, its employees, servants, or agents. *

11.9 The Customer further agrees that where the Supplier has rights in addition to those under part 4 of the PPSA, those rights will continue to apply.

11.10 Where the Customer has previously entered into an agreement with the Supplier by which the Customer has granted a charge, mortgage or other security interest (including a security interest as defined in the PPSA) over or in respect of real or personal property (including, but not limited to, in an application for commercial credit with the Supplier which pre-dates these Terms of Sale), those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in these Terms of Sale and will secure all indebtedness and obligations of the Customer under these Terms of Sale or a Contract. The Supplier may, at its election and upon the provision of reasonable written notice, vary the terms of such previous charges, mortgages, or other securities to reflect the terms in these Terms of Sale.

12. Insolvency

12.1 If an Insolvency Event occurs in relation to the Customer, then the Supplier may immediately suspend or cancel any Contract or Order (or any part of a Contract or Order) by giving written notice to the Customer.

12.2 On the occurrence of an Insolvency Event, all amounts owing by the Customer to the Supplier will immediately become due and payable.

12.3 The Supplier will not be liable for any loss or damage suffered by the Customer or any third party arising as a result of the Supplier exercising its rights under this clause 12.

13. Goods are supplied “as is”

13.1 Subject to clause 28, the Goods are supplied “as is” and the Supplier makes no representation or warranty that the Goods are fit for any particular purpose, except as expressly set out in the Contract.

14. Warranty

14.1 Subject to clause 28, the Supplier does not provide any warranty in relation to the Goods other than any warranty provided by the manufacturer of the Goods.

14.2 To the extent permitted by law, the Supplier excludes all conditions, warranties and guarantees implied by statute, general law or custom in relation to the Goods or their supply, except those which cannot lawfully be excluded.

15. Limitation of liability

15.1 Subject to clause 28 and to the maximum extent permitted by law, the Supplier is not liable to the Customer for any loss, damage, cost or expense of any kind whatsoever, including (without limitation) any indirect, special or consequential loss or damage, loss of profits, loss of business, loss of opportunity or loss of reputation, arising out of or in connection with:
(a) any Contract;
(b) the supply of the Goods;
(c) the failure to supply the Goods; or
(d) the use of the Goods.

15.2 Subject to clause 28, to the maximum extent permitted by law, the Supplier’s aggregate liability arising out of or in connection with a Contract or the supply of the Goods is limited to one or more of the following, at the Supplier’s election:
(a) the 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 acquiring equivalent goods; or
(d) the payment of the cost of having the Goods repaired.

16. Indemnity

16.1 The Customer indemnifies and holds harmless the Supplier and its officers, employees, agents and contractors from and against all losses, damages, costs, expenses, claims and demands suffered or incurred by the Supplier arising out of or in connection with:
(a) any breach of these Terms of Sale or a Contract by the Customer;
(b) any negligent or unlawful act or omission of the Customer or its officers, employees, agents or contractors; or
(c) any use or misuse of the Goods by the Customer or any third party.

17. Insurance

17.1 The Customer must maintain, at its own cost, all insurance reasonably required in connection with the Goods, including public liability insurance and insurance for loss of or damage to the Goods.

18. Intellectual property

18.1 All intellectual property rights in any materials, drawings, specifications, designs or documents supplied by the Supplier remain the property of the Supplier.

18.2 The Customer must not reproduce, copy, modify or disclose any such intellectual property without the Supplier’s prior written consent.

19. Confidentiality

19.1 The Customer must keep confidential all information provided by the Supplier that is confidential in nature or designated as confidential, except where disclosure is required by law or permitted by the Supplier in writing.

20. Assignment and subcontracting

20.1 The Customer must not assign, transfer, novate or otherwise deal with any of its rights or obligations under a Contract without the Supplier’s prior written consent.

20.2 The Supplier may assign, subcontract or otherwise deal with its rights and obligations under a Contract without the Customer’s consent.

21. Relationship of parties

21.1 Nothing in these Terms of Sale creates any partnership, joint venture, agency or employment relationship between the parties.

22. Force majeure

22.1 The Supplier will not be liable for any failure or delay in performing its obligations under a Contract if such failure or delay is due to a Force Majeure Event.

22.2 If a Force Majeure Event continues for more than 30 days, the Supplier may cancel the affected Contract (or any part of it) by giving written notice to the Customer, without liability.

23. Waiver

23.1 A waiver of any right, power or remedy under these Terms of Sale must be in writing and signed by the party granting the waiver.
23.2 A waiver of any breach does not operate as a waiver of any subsequent breach.

24. Severability

24.1 If any provision of these Terms of Sale is held to be invalid, illegal or unenforceable, that provision is to be read down or severed to the extent necessary, without affecting the validity or enforceability of the remaining provisions.

25. Governing law and jurisdiction

25.1 These Terms of Sale and any Contract are governed by the laws of New South Wales, Australia.
25.2 The parties submit to the non-exclusive jurisdiction of the courts of New South Wales.

26. Entire agreement

26.1 These Terms of Sale, together with any Contract, Quotation and Special Conditions, constitute the entire agreement between the parties in relation to their subject matter.
26.2 No prior agreement, representation or understanding has any effect except as expressly set out in these Terms of Sale or a Contract.
26.3 If there is any inconsistency between these Terms of Sale and any other document, these Terms of Sale prevail unless expressly stated otherwise in writing.

27. Amendments

27.1 The Supplier may amend these Terms of Sale from time to time by publishing the amended terms on its website or otherwise notifying the Customer in writing.
27.2 Any amendment applies to Orders placed after the date of publication or notice.

28. Consumer guarantees

28.1 Nothing in these Terms of Sale excludes, restricts or modifies any consumer guarantee, right or remedy conferred by the Australian Consumer Law or any other applicable law that cannot be excluded, restricted or modified.

28.2 Where the Customer is a Consumer or a Small Business, and the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Supplier’s liability for a failure to comply with a consumer guarantee is limited (at the Supplier’s election) to:
(a) the 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 acquiring equivalent goods; or
(d) the payment of the cost of having the Goods repaired.

29. Notices

29.1 Any notice required or permitted to be given under these Terms of Sale must be in writing and may be given by hand, post or email to the recipient’s last known address or email address.
29.2 A notice is deemed to be received:
(a) if delivered by hand, at the time of delivery;
(b) if sent by post, on the third Business Day after posting; or
(c) if sent by email, at the time the email is sent, unless the sender receives an automated message indicating the email was not delivered.

30. Definitions and interpretation

30.1 In these Terms of Sale, unless the context otherwise requires:

  • Business Day means a day other than a Saturday, Sunday or public holiday in New South Wales.

  • Contract means a contract formed in accordance with clause 1.

  • Customer means the person or entity acquiring Goods from the Supplier.

  • Force Majeure Event means any event beyond the Supplier’s reasonable control, including but not limited to acts of God, natural disasters, war, terrorism, labour disputes, pandemics, government actions, supply chain disruption or failure of utilities.

  • Goods means goods supplied by the Supplier to the Customer.

  • Insolvency Event has the meaning given in clause 12.

  • Price means the price payable for the Goods.

  • Small Business has the meaning given in the Australian Consumer Law.

  • Supplier means Builders Centre (or the relevant supplying entity).

30.2 Headings are for convenience only and do not affect interpretation.
30.3 A reference to legislation includes any amendment or re-enactment of that legislation.