Terms & Conditions
Andrew Smith Timber Creations Pty Ltd
(ACN 146 400 795)
GENERAL TERMS AND CONDITIONS OF SALE
Interpretation
1. In these conditions:“Company” means Andrew Smith Timber Creations Pty Ltd (ACN 146 400 795) of 16 Keighley Avenue Somersby, NSW, 2250;
“Customer” means the purchaser of the Goods.
“Goods” means the products, and services if any, specified in the Invoice and/or the Quotation;
“Invoice” means the invoice attached to these conditions of sale;
“Quotation” means the written quotation attached to these conditions of sale and forms part of the agreement for the sale of the Goods together with these conditions of sale.
General
2. These conditions of sale (which shall only be waived in writing signed by the Company) shall prevail over all conditions of the Customer’s order to the extent of any inconsistency.
Terms of sale
3. The Goods and all other products sold by Company are sold on these conditions of sale.
Company’s quotations
4. Unless previously withdrawn, Company’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within 60 days only after its date. The Company reserves the right to refuse any order based on this Quotation within 7 days after the receipt of the order.
Drawings, etc
5.1. All specifications, drawings, and particulars of weights and dimensions submitted to the Company are approximate only and any deviation from any of these things does not vitiate any contract with the Company or form grounds for any claim against the Company.
5.2. The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do notform part of the contract of sale of the goods or of the description applied to the goods.
5.3.Where specifications, drawings or other particulars are supplied by the Customer, the Company’s price is made on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by Company and set out in a quotation, then any such increase or decrease are to be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.
Delivery
6.1. The delivery or installation times made known to the Customer are estimates only and the Company is not be liable for late delivery or non – delivery.
6.2. The Company is not liable for any loss, damage or delay occasioned to the Customer or its customers arising from late or non – delivery or late installation of the goods.
Guarantee
7.1. The Company is not liable for and the Customer releases the Company from any claims in respect of faulty or defective design of any goods supplied unless such design has been wholly prepared by the Company and the responsibility for any claim has been specifically accepted by the Company in writing.
7.2. Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Company is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the goods or arising out of the Company’s negligence or in any way whatsoever.
8. The Company’s liability for a breach of a condition or warranty implied by Pt 3–2 Div 1 of the Australian Consumer Law is limited to:
8.1. in the case of goods, any one or more of the following:
8.1.1. the replacement of the goods or the supply of equivalent goods;
8.1.2. the repair of the goods;
8.1.3. the payment of the cost of replacing the goods or of acquiring equivalent goods;
8.1.4. the payment of the cost of having the goods repaired; or
8.2. in the case of services:
8.2.1. the supplying of the services again; or
8.2.2. the payment of the cost of having the services supplied again.
9. The Company’s liability under s 274 of the Australian Consumer Law is expressly limited to a liability to pay to the purchaser an amount equal to:
9.1. the cost of replacing the goods;
9.2. the cost of obtaining equivalent goods; or
9.3. the cost of having the goods repaired, whichever is the lowest amount.
Prices
10.1. Unless otherwise stated all prices quoted by vendor are net, exclusive of Goods and Services Tax (GST).
10.2. Prices quoted are those ruling at the date of issue of Quotation and are based on rates of freight, insurance, cost of materials and other charges affecting the cost of production ruling on the date is made.
10.3. If the Company makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Customer’s account.
Payment
11.1. The Company will issue a Quotation and/or order form, which if accepted by the Customer must be accepted with an appropriate purchase order, or must be paid in full by cleared funds prior to the delivery and/or installation of the Goods.
11.2. If the Company requests the Customer must provide a non-refundable deposit on the terms contained in the Quotation and a receipt of such deposit is a condition precedent to the acceptance by the Company accepting any order for Goods from the Customer.
11.3. All losses, expenses, interest and costs including (but not limited to) legal fees on a solicitor/client basis consequent upon the Customer’s failure to pay on the due date shall be recoverable from the Customer by the Company as liquidated damages.
Rights in relation to goods
12.1. In connection with the Goods while they remain the property of the Company, the Customer agrees with the Company that:
12.1.1. the Customer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation the Company owes to the Customer;
12.1.2. the Customer cannot claim any lien over the goods;
12.1.3. the Customer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by the Company;
12.1.4. where the Customer is in actual or constructive possession of the Goods:
12.1.4.1. the Customer will not deliver them or any document of title to the Goods to any person except as directed by the Company; and
12.1.4.2 it is in possession of the goods as a bailee of those Goods and owes the Company the duties and liabilities of a bailee.
12.2. The Company and the Customer agree that:
12.2.1. the property of the Company in the Goods remains with the Company until the Company has been paid in full for the Goods under all individual contracts for the supply of the Goods between the Company and the Customer;
12.2.2. the Customer is a bailee of the Goods until such time as property in them passes to the Customer and that this bailment continues in relation to each of the Goods until the price of the Goods has been paid in full;
12.2.3. pending payment in full for the Goods, the Customer:
12.2.3.1. must not allow any person to have or acquire any security interest in the Goods;
12.2.3.2. must insure the Goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Customer carries on business;
12.2.3.3. must not remove, deface or obliterate any identifying plate, mark or number on the Goods.
Storage
13. The Company reserves the right to make a reasonable charge for storage if delivery and/or installation instructions are not provided by the Customer within fourteen days of a request by the Company for such instructions. The parties agree that the Company may charge for storage from the first day after the Company requests the Customer to provide delivery and/or installation instructions.
Goods sold
14. All Goods to be supplied by the Company to the Customer are as described on the Quotation agreed by the Company and the Customer and the description on such purchase order modified as so agreed prevails over all other descriptions including any specification or enquiry of the Customer.
Cancellation
15. No order may be cancelled except with consent in writing and on terms which will indemnify the Company against all losses.
Delivery and Installation
16. The Company will make all reasonable efforts to have good delivery to the Customer and installation on or before the date agreed between them (if any) as the delivery date, however the Company shall be under no liability whatsoever should delivery not be made on or before such date and any delay in delivering or installation shall not constitute a breach of this Contract.
The Goods
17. The Customer acknowledges that the Company creates Goods using highly skilled artists and craftsman. Each individual Good is fashioned carefully and personally to ensure beauty and quality. The Goods are made using timber products, including pieces of discarded and collected timber. The Customer acknowledges that the Goods are a natural product and may vary in grain colour, hardness, type of wood and other characteristics at the sole discretion of the Company.
Intellectual Property
18. Notwithstanding any other provision of these conditions of sale, all rights title and interest in intellectual property in and in respect of the Goods remain with, belong to and are the property of the Company. For the avoidance of doubt, “intellectual property rights” includes without limitation all intellectual and proprietary and/or license rights, business names, trademarks, patents, patent applications, designs, design rights, drawings, improvements, trade secrets, know-how, logos, copyright, technical data and moral rights. The Customer agrees that it will not deal with any such intellectual property rights and in addition will not remove any trademarks, logos or other product or brand identification marks even after title in the Goods has passed to the Customer.
Exclusions
19. The Quotation specifies all Goods to be supplied by the Company. Unless specifically agreed otherwise by the Company in writing, the Customer is responsible for obtaining all necessary information, reports, permits, statutory approvals and the like in respect of the Goods or the installation of the Goods. This includes any geotechnical and soil testing and analysis of any site. The Company shall not be liable for any costs for matters referred to in this clause including but not limited to:-
and the Customer shall be responsible for and agrees to pay for and indemnify the Company from and against all such costs.
19.1. the costs of obtaining council permits and approvals if
required;
19.2. the additional costs of excavation required for non-standard soil types;
19.3. the costs of obtaining any soil testing report;
Maintenance
20. The Customer acknowledges that the Goods require regular maintenance, particularly when installed in an area exposed to the elements. The Company provides such maintenance services for a fee. In the event the Customer does not contract with the Company to provide such maintenance services the Company will not be responsible for, nor will there be any remedy against the Company, in respect of any claim (whether contractual, tortuous, statutory or otherwise) for any loss, damage, costs, expenses or other injury or harm suffered by the Customer or any other person due to the Goods not being properly maintained by an appropriately qualified person or organisation.
Representations
21. Without in anyway limiting the Customer’s statutory rights, the Customer acknowledges that neither the Company nor its servants and agents have made any representations or given any promise or undertaking which is not expressly set out in writing in the Quotation whether as to the fitness of the Goods and services for any particular purpose or any other matter.
Place of contract
22.1. The contract for sale of the Goods is made in New South Wales.
22.2. The parties submit all disputes a rising between them to the courts of New South Wales and any court competent to hear appeals from those courts of first instance.
Severable Clauses
23. In the event that any clause or term in these general conditions of contract is held to be void the Company and the Customer agree that the remaining terms herein shall continue to apply.
Variation of Terms
24. The Company may add to or vary these conditions of sale from
time to time.
Use by Children
25. All Goods are supplied and/or installed with intent that they are suitable for use by children, and while every endeavour is made to anticipate potential hazards, the Customer accepts that the goods or installation procedures of the Company are not provided with any guarantee they are completely without hazard.
Fall Zones
26. Where the Customer requires installation without providing adequate space for fall zones, the Company may either at its option decline to in which event full responsibility for any consequences for such directions rests with the Customer.
Drainage and Utility Services
27. The Company accepts no responsibility for damage to drainage pipes or any other utility services. Where an installation is delayed or cancelled because of any aboveground or underground obstructions or utility service, a fee to cover the Company’s time and costs may be charged.