TERMS AND CONDITIONS OF TRADE AND USE OF WEBSITE
In these conditions:
“Agreement” means the terms and conditions set out in these Standard Terms, or otherwise agreed by the parties in writing.
“Conditions” means these Conditions of Trade as amended from time to time by the Supplier and notified to the Customer.
“Contract” means the contract entered between the Supplier and Customer pursuant to these Conditions.
“Customer” means the person, firm or organisation seeking to purchase goods and/or services from the Supplier as specified in any invoice, document or order, and if there is more than one Customer these conditions bind them jointly and each of them severally.
“Cth” means Commonwealth of Australia.
“ASG” means Australian Supply Group Proprietary Limited, ABN 14 607 257 223.
“Goods” means goods supplied by ASG to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“PPSA” means the Personal Property Securities Act 2009.
“Price” means the Price payable for the Goods as agreed between ASG and the Customer in accordance with clause 8 below.
“Services” means services supplied by ASG to the Customer at the Customer’s request from time to time.
“Supplier” means Australian Supply Group Proprietary Limited (ABN 14 607 257 223) of 8 Dundee Avenue, Holden Hill 5088.
“Technical data” means information, other than software which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification. This includes information in the form of blueprints, drawings, photographs, plans, instructions or documentation.
2.Warranty of Correctness of Information
2.1 The Customer warrants that all information supplied in this application is true and correct.
2.2 The Customer authorises ASG to make enquires with your bank, accountant, and trade references to determine if we will give you credit. ASG do not have to advise the Customer what they have advised us.
2.3 If ASG require further information after we have made those enquires:
(a) The Customer may agree to provide it within a reasonable time; or
(b) The Customer may refuse to provide it and withdraw your application.
2.4 If ASG agree to give the Customer credit, we will write and inform you of that and your credit limit.
2.5 The Customer must immediately notify ASG in writing in no less than fourteen (14) days if there is any change in the shareholding or ownership of the Customer or any material change in the Customer’s financial position or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by ASG because of the Customer’s failure to comply with this clause.
3. Applicability of Conditions
3.1 If ASG agree to give the Customer credit, each transaction with ASG is to be on the following terms and conditions. ASG may change the terms and conditions and upon written notice to you of the changes and you will be bound by the changed terms in respect of all subsequent transactions.
3.2 The Customer agrees that ASG may refuse credit to you without assigning any reason and cancel all credit facilities granted to you without notice and without assigning any reason.
4. Basis of Contract
4.1 Unless otherwise agreed by ASG in writing, the terms and conditions apply exclusively to every contract for the sale of goods and/or services by ASG to the Customer and cannot be varied or supplanted by any other condition(s) including those that may be proffered by a Customer or printed on a Customer’s purchase order or other documentation without prior written consent of ASG.
4.2 Any written quotation provided by ASG to the Customer in respect of the proposed supply of goods or services is deemed to be an invitation only to the Customer to place an order based upon that quotation. Quotations are valid for 30 days from the quotation date. Prices shown on any price list are subject to change without notice.
5.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Good
5.2 These terms and conditions may only be amended with ASG’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and ASG.
6. Payment for Goods
6.1 Payment for goods and services must be made in Australian dollars and paid within thirty (30) days from the date of ASG’s invoice unless otherwise agreed between the parties.
6.2 Goods are not supplied on a sale or return basis. Subject to these terms, once ASG accept your order, the Customer is obliged to take the goods although property in the goods is yet to pass to the Customer.
6.3 Any agreement to accept any return of the goods must be in writing signed by ASG.
6.4 If ASG agree to accept any return, our current return conditions will apply. These are set out in clause 27 below of these terms and conditions.
6.5 At ASG’s sole discretion a deposit may be required.
6.6 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by ASG, which may be:
(a) cash on delivery of the Goods;
(b) for certain approved Customers, thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by ASG.
6.7 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Customer and ASG.
6.8 ASG will charge the Customer the fee as charged to ASG by our bankers if your payment is dishonoured for any reason.
6.9 Payment for all goods supplied becomes immediately due if:
(a) you commit any act of bankruptcy;
(b) a meeting of your creditors is called;
(c) a mortgagee or mortgagee’s agent takes possession of any of your assets;
(d) a receiver of any of your assets is appointed;
(e) you go into voluntary administration; or
(f) a petition to bankrupt or liquidate you is issued;
(g) an amount due remains unpaid as at the due date.
6.10 Until an overdue amount is paid, you must pay interest on the overdue amount, to be calculated daily at ASG’ bank’s monthly overdraft rate.
6.11 The Customer must pay ASG all costs and expenses incurred or which will be incurred by ASG in respect of any action for recovery of monies or repossession of goods, including but not limited to debt collector’s fees, agent fees, solicitor fees (on an indemnity basis) and fees of other parties acting on behalf of us.
6.12 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to ASG an amount equal to any GST ASG must pay for any supply by ASG under this or any other agreement for the sale of the Goods.
The Customer must pay GST, without deduction or set off from any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Payment Default
7.1 If the Customer defaults in payment by the due date of any amount payable to ASG, then all monies which would become payable by the Customer to ASG at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and ASG may, without prejudice to any other remedy available to it:
(a) charge the Customer for all expenses and costs (including legal costs on a solicitor/client basis) incurred by it in taking whatever action it deems appropriate to recover any sum due;
(b) cease or suspend for such period as ASG thinks fit, supply of any further goods or services to the Customer without liability to the Customer or any third party for any loss or damage whether of a direct or consequential nature;
(c) by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by ASG, without liability for any direct or indirect loss or damage that may be caused to the Customer or any third party and without any effect on accrued rights of ASG under any contract.
7.2 The remedies in clauses 7.1 (b) and (c) may also be relied upon, at the option of ASG:
(a) where the Customer is an individual and becomes, bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
8.1 At ASG’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by ASG to the Customer; or
(b) ASG’s quoted price (subject to clause 8.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
8.2 ASG reserves the right to change the Price if a variation to ASG’s quotation is requested and any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties or as a result of increases to ASG in the cost of materials and labour or as a result of fluctuations in currency exchange rates) will be charged for on the basis of ASG’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
8.3 Unless otherwise agreed by ASG in writing, prices for the supply of goods and services exclude sales tax, consumption or goods and services tax, and any other taxes, duties or impost imposed on or in relation to the goods and services in Australia but include the cost of freight, insurance and other chargers to the point of delivery.
8.4 Any exchange rate fluctuation causing an increase to the cost to ASG of goods ordered by the Customer must be paid by the Customer if it defaults in any payment due to ASG.
9.1 Until full payment in cleared funds is received by ASG for all goods supplied by it to the Customer, as well as all other amounts owing on any account to ASG by the Customer:
(a) the Customer holds the goods as fiduciary bailee and agent for ASG;
(b) in the event that the Customer uses the goods in some manufacturing or construction of its own or of some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the goods in trust for ASG. Such part will be an amount in dollar terms to the amount owing by the Customer to ASG at the time of the receipt of such proceeds. The Customer will pay ASG such funds held in trust upon demand by ASG.
(b) ASG may without notice, enter any premises where it suspects the goods may be and remove them, notwithstanding that they may have attached to other goods not the property of ASG, and for this purpose the Customer irrevocably licenses ASG to enter such premises and indemnifies ASG from and against all costs, claims, demands or actions by any party arising from such action.
10. Delivery of Goods
10.1 Delivery of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at ASG’s address; or
(b) ASG (or ASG’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
10.2 At ASG’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
10.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. If the Customer is unable to take delivery of the Goods as arranged, then ASG shall be entitled to charge a reasonable fee for redelivery and/or storage.
10.4 ASG may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
10.5 Any date or time of delivery ASG provides to the Customer is an estimate only and is not a contractual commitment. ASG shall endeavour to deliver by any date or time specified. In no case, shall ASG be liable for any loss or damage arising as a result or consequences of any failure by ASG to delivery by any specified date or time.
10.6 A completed driver manifest or delivery docket whether signed by the driver or by the Customer or its employee or agent will be proof of delivery of goods invoiced.
10.7 The Customer agrees that ASG, to the extent permitted by law, is not liable for:
(a) any damage or loss due to unloading or packaging;
(b) damage or property caused upon entering premises to deliver the goods except to the extent that such damage was caused by the negligent act or omission of ASG; or
(c) as set out in clause 12.8 below of these terms and conditions.
11.1 The Customer shall ensure that ASG has clear and free access to the work site at all times to enable them to deliver the Goods. ASG shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of ASG.
12. Risk and Insurance
12.1 The risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
12.2 The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods will, unless agreed in writing to the contrary, pass to the Customer upon delivery to the Customer.
12.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, ASG is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by ASG is sufficient evidence of ASG’s rights to receive the insurance proceeds without the need for any person dealing with ASG to make further enquiries.
12.4 If the Customer requests ASG to leave Goods outside ASG’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
12.5 Where the Customer has supplied materials for ASG to complete the works, the Customer acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in the materials. ASG shall not be responsible for any defects in the works, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
12.6 Whilst all due care will be taken in respect to any technical specification such as drawings, sketches, manuals, a hard copy and/or electronic format as digital data provided to ASG prior to commencement of Customer work; no liability will be accepted by ASG for damage to the goods, rework or any other part of the scope of work being carried out as a result of inaccurate, incorrect or substandard technical data being provided by the Customer.
12.7 Where ASG gives advice or recommendations to the Customer, or the Customer’s agent, regarding the suitability of the worksite or similar works and such advice or recommendations are not acted upon then ASG shall require the Customer or their agent to authorise commencement of the works in writing. ASG shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the works.
12.8 The Customer agrees that ASG will have no liability in tort or otherwise for any personal injuries or in respect of delivery or any subsequent use of the goods.
13. Limited Warranty
13.1 The Customer must inspect and check all goods received as soon as practicable upon unloading. To the extent permitted by law, no claim by the Customer for shortage of goods may be made unless such claim is notified to ASG within 48 hours of receipt. Any such claims will be subject to the ASG’s approval.
13.2 A warranty claim is only payable when a settlement agreement is signed and sealed by both Customer and ASG.
13.3 Unless otherwise agreed to in writing, all goods will be supplied and delivered in accordance with ASG’s standard practice and shall be subject to ASG’s normal tolerances, limitations and variations of the following: dimensions, weight, shape, composition, mechanical properties, structure, quality and service conditions.
13.4 Any statements made by ASG as to weight, length, quantity or other characteristics of goods are approximate and ASG may supply goods on an actual or calculated basis (calculated in accordance with applicable Australian standards).
13.5 ASG’s statement as to weight, length, quality or other characteristic are final (in the absence of manifest error) and will not be contested by the Customer unless the Customer has given ASG written notice of any error within 14 days of delivery and a reasonable opportunity to examine and re-test the goods before they are used or dealt with.
14. Retention of Title
14.1 ASG and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid ASG all amounts owing to ASG; and
(b) the Customer has met all of its other obligations to ASG.
(c) Receipt by ASG of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
14.2 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 14.1 that the Customer is only a bailee of the Goods and must return the Goods to ASG on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for ASG and must pay to ASG the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for ASG and must pay or deliver the proceeds to ASG on demand.
(d) the Customer irrevocably authorises ASG to enter any premises where ASG believes the Goods are kept and recover possession of the Goods. ASG may do so, even if the goods are incorporated into another product or item which does not belong to ASG, but they can be removed without damage to the product or item.
(e) ASG may recover possession of any Goods in transit whether or not delivery has occurred.
(f) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of ASG.
(g) ASG may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods have not passed to the Customer.
15. Personal Property Securities Act 2009 (PPSA) (Cth)
15.1 In this clause defined terms have the same meaning as given to them in the PPSA.
15.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by ASG to the Customer.
15.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which ASG may reasonably require to;
i. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
ii. register any other document required to be registered by the PPSA; or
iii. correct a defect in a statement referred to in clause 15.3(a)(i) or 15.3(a)(ii);
(b) indemnify, and upon demand reimburse, ASG for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of ASG;
(d) not 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 without the prior written consent of ASG;
(e) immediately advise ASG of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
15.4 ASG and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
15.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
15.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
15.7 Unless otherwise agreed to in writing by ASG, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
15.8 The Customer must unconditionally ratify any actions taken by ASG under clauses 15.3 to 10.5.
15.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
16.1 The Customer irrevocably appoints ASG and each of its authorised officers, jointly and severally, to be its attorney to do any act or thing which the Customer is required to do under the contract, if the Customer is in default (including executing and registering instruments). ASG may exercise its powers even if this involves a conflict of duty and even if it has a personal interest in doing so. A third party may rely on a copy of the Conditions certified by a solicitor as evidence of the appointment of ASG as the attorney of the Customer. The Customer must ratify all acts and things done by ASG and its authorised officers in the exercise of this power of attorney.
17. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA) (Cth)
17.1 The Customer must inspect the Goods on delivery and must within fourteen (14) days of delivery notify ASG in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Customer must allow ASG to inspect the Goods.
17.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
17.3 ASG acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
17.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, ASG makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. ASG’s liability in respect of these warranties is limited to the fullest extent permitted by law.
17.5 If the Customer is a consumer within the meaning of the CCA, ASG’s liability is limited to the extent permitted by section 64A of Schedule 2.
17.6 If ASG is required to replace the Goods under this clause or the CCA, but is unable to do so, ASG may refund any money the Customer has paid for the Goods.
17.7 If the Customer is not a consumer within the meaning of the CCA, ASG’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by ASG at ASG’s sole discretion;
(b) limited to any warranty to which ASG is entitled, if ASG did not manufacture the Goods;
(c) otherwise negated absolutely.
17.8 Subject to this clause 17, returns will only be accepted if:
(a) the Customer has complied with the provisions of clause 17.1; and
(b) ASG has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
17.9 Notwithstanding clauses 17.1 to 17.8 but subject to the CCA, ASG shall not be liable for any defect or damage which may be caused or partly caused by or arise because of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by ASG;
(e) fair wear and tear, any accident, or act of God.
17.10 Notwithstanding anything contained in this clause if ASG is required by a law to accept a return then ASG will only accept a return on the conditions imposed by that law.
18. Intellectual Property
18.1 Where ASG has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of ASG.
18.2 The Customer warrants that all designs, specifications or instructions given to ASG will not cause ASG to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify ASG against any action taken by a third party against ASG in respect of any such infringement.
18.3 The Customer agrees that ASG may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which ASG has created for the Customer.
19.1 ASG may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice ASG shall repay to the Customer any money paid by the Customer for the Goods. ASG shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.2 If the Customer cancels delivery of Goods the Customer shall be liable for all loss incurred (whether direct or indirect) by ASG as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stock list items, will not be accepted once production has commenced, or an order has been placed.
20. Binding on Parties
These terms and conditions shall be binding on ASG and Customer, their heirs, executors, administrators and permitted assigns.
21. Privacy Act 1988 (Cth)
21.1 The Customer agrees for ASG to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by ASG.
21.2 The Customer agrees that ASG may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers can exchange under the Privacy Act 1988.
21.3 The Customer consents to ASG being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
21.4 The Customer agrees that personal credit information provided may be used and retained by ASG for the following purposes (and for other purposes as shall be agreed between the Customer and ASG or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by ASG, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
21.5 ASG may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
21.6 The information given to the credit reporting agency may include:
(a) personal details (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Customer’s application for credit and the amount requested;
(c) advice that ASG is a current credit provider to the Customer;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of ASG, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by ASG has been paid or otherwise discharged.
22. Compliance with Laws
22.1 The Customer and ASG shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
22.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works.
22.3 The Customer agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
23. Governing Law
23.1 These terms and conditions are to be construed in accordance with the laws from time to time in the State of South Australia and the Commonwealth of Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.
24.1 To the full extent permitted by law, the Customer will indemnify ASG and keep ASG indemnified from and against any liability and any loss or damage ASG may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these terms and conditions by Customer or its representatives.
25. Dispute Resolution
25.1 If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
26. South Australia, Building and Construction Industry Security of Payments Act 2009
26.1 At ASG’s sole discretion, the provisions of the Building and Construction Industry Security of Payments Act 2009 may apply.
26.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of South Australia, except to the extent permitted by the Act where applicable.
26.3 The Customer accepts that email is a valid format to receive payment claims made under the Building and Construction Industry Security of Payments Act 2009.
27. Cancellation of Orders, Returns and Claims
27.1 Specially ordered or manufactured items will not be accepted for credit. Stock items will not be accepted for return unless prior arrangement has been made with ASG. Freight chargers on returns are the responsibility of the customer. Goods correctly delivered and as ordered will be subject to a 25% restocking fee if accepted for return. Claims must be made within thirty (30) days from the date of invoice from original purchase.
28.1 The failure by ASG to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect ASG’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
28.2 Subject to clause 17 ASG shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by ASG of these terms and conditions (alternatively ASG’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
28.3 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by ASG nor to withhold payment of any invoice because part of that invoice is in dispute.
28.4 ASG may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
28.5 The Customer agrees that ASG may amend these terms and conditions at any time. If ASG makes a change to these terms and conditions, then that change will take effect from the date on which ASG notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for ASG to provide Goods to the Customer.
28.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
28.7 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
TERMS AND CONDITIONS OF USE OF WEBSITE
By using this website, you signify your acceptance of these terms and conditions of use. For the purposes of these terms and conditions, “Us”, “Our” and “We” refers to www.ausgrp.com and “You” and “Your” refers to you, the client, visitor, website user or person using our website.
1. AMENDMENT OF TERMS
We reserve the right to change, modify, add or remove portions of these terms at any time. Please check these terms regularly prior to using our website to ensure you are aware of any changes. We will endeavour to highlight any significant or substantive changes to you where possible. If you choose to use our website then we will regard that use as conclusive evidence of your agreement and acceptance that these terms govern your and www.ausgrp.com’s rights and obligations to each other.
2. LIMITATION OF LIABILITY
It is an essential pre-condition to you using our website that you agree and accept that www.ausgrp.com is not legally responsible for any loss or damage you might suffer related to your use of the website, whether from errors or from omissions in our documents or information, any goods or services we may offer or from any other use of the website. Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable.
It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific, personal requirements.
You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
3. COMPETITION AND CONSUMER ACT
For the purposes of Schedule 2 of the Australian Consumer Law, in particular Sections 51 to 53, 64 and 64A of Part 3-2, Division 1, Subdivision A of the Competition and Consumer Act 2010 (Cth), www.ausgrp.com’s liability for any breach of a term of this agreement is limited to: the supplying of the goods or services to you again; the replacement of the goods; or the payment of the cost of having the goods or services supplied to you again. You must be over 18 years of age to use this website and to purchase any goods or services.
4. DELIVERY OF PHYSICAL GOODS
www.ausgrp.com uses Australia Post and/or other reputable courier companies to deliver physical goods.
Deliveries are processed promptly upon receipt of full payment. Delivery may take between 2 and 14 days, depending on the delivery company chosen.
www.ausgrp.com is not responsible for goods that are either damaged in transit or not received. Damaged or lost orders should be resolved with Australia Post or the courier company directly. Replacement of damaged or lost items is made at the discretion of www.ausgrp.com.
5. RETURNS AND REFUNDS
www.ausgrp.com handles returns and processes refunds in accordance with the Australian Consumer Protection legislation.
Should you wish to return your order, please notify us within 14 days of purchase with a valid reason for return. If we are unable to resolve your complaint or further assist you, we will process a refund upon timely receipt of the goods purchased. Unopened goods will be refunded in full. Refunds will be processed promptly and payment made by the same method that you made payment. Refund payments may take up to 7 business days to be received. Refunds are made at the discretion of www.ausgrp.com.
6. LINKS TO OTHER WEBSITES
www.ausgrp.com may from time to time provide on its website, links to other websites and information on those websites for your convenience. This does not necessarily imply sponsorship, endorsement, or approval or arrangement between www.ausgrp.com and the owners of those websites. www.ausgrp.com takes no responsibility for any of the content found on the linked websites.
www.ausgrp.com’s website may contain information provided by third parties for which www.ausgrp.com accepts no responsibility whatsoever for information or advice provided to you directly by third parties. We are making a ‘recommendation’ only and are not providing any advice nor do we take any responsibility for any advice received in this regard.
To the fullest extent permitted by law, www.ausgrp.com absolutely disclaims all warranties, expressed or implied, including, but not limited to, implied warranties of merchantability and fitness for any particular purpose. www.ausgrp.com gives no warranty that the documents, goods or services will be free of errors, or that defects will be corrected, or that our website or its server is free of viruses or any other harmful components.
Whilst we, at all times endeavour to have the most accurate, reliable and up-to-date information on our website, we do not warrant or make any representations regarding the use or the result of the use of any document, product, service, link or information in its website or as to their correctness, suitability, accuracy, reliability, or otherwise.
It is your sole responsibility and not the responsibility of www.ausgrp.com to bear any entire costs of servicing, repairs, or correction. The applicable law in your state or territory may not permit these exclusions, particularly the exclusions of some implied warranties. Some of the above may not apply to you but you must ensure you are aware of any risk you may be taking by using this website or any products or services that may be offered through it. It is your responsibility to do so.
8. YOUR PRIVACY
At www.ausgrp.com, we are committed to protecting your privacy. We use the information we collect about you to maximize the services that we provide to you.
You may change your details at any time by advising us in writing via email. All information we receive from our customers, is protected by our secure servers.
www.ausgrp.com’s secure server software encrypts all customer information before it is sent to us. Furthermore, all of the customer data www.ausgrp.com collects is secured against unauthorized use or access. Credit card information is not stored by us on our servers.
9. THIRD PARTIES
www.ausgrp.com does not and will not sell or deal in personal or customer information. We may however use in a general sense without any reference to your name, your information to create marketing statistics, identify user demands and to assist it in meeting customer needs generally. In addition, we may use the information that you provide to improve its website and its services but not for any other use.
10. DISCLOSE YOUR INFORMATION
www.ausgrp.com may be required, in certain circumstances, to disclose information in good faith and where www.ausgrp.com is required to do so in the following circumstances: by law or by any court; to enforce the terms of any of our customer agreements; or to protect the rights, property or safety of www.ausgrp.com, its customers or third parties.
11. EXCLUSION OF COMPETITORS
If you are in the business of creating similar documents, goods or services for the purpose of providing them for a fee to users, whether they be business users or domestic users, then you are a competitor of www.ausgrp.com. www.ausgrp.com expressly excludes and does not permit you to use or access its website, to download any documents or information from its website or obtain any such documents or information through a third party. If you breach this term then www.ausgrp.com will hold you fully responsible for any loss that it might sustain and further holds you accountable for all profits that you might make from such unpermitted and improper use. www.ausgrp.com reserves the right to exclude and not permit any person from using its website or any of the documents and information contained on it.
12. COPYRIGHT, TRADEMARK AND RESTRICTIONS OF USE
This website contains material which is owned by or licensed to us. This material includes, but is not limited to, the design, layout, look, appearance, trademarks and graphics. You are not permitted to reproduce the documents, information or materials on the website for the purposes of sale or the use by any third party. In particular, you are not permitted to republish, upload, transmit electronically or otherwise or distribute any of the materials, documents or products that may be available for download from time to time on this website.
www.ausgrp.com expressly reserves all copyright and trademark in its website and in all documents and information on its website and reserves the right to take action against you if you breach any of these terms.
Any redistribution or reproduction of part or all of the contents in any form is prohibited other than the following: you may print or download to a local hard disk extracts for your personal and non-commercial use only; and you may copy the content to individual third parties for their personal use, but only if you acknowledge the website as the source of the material.
You may not, except with our express written permission, distribute or commercially exploit the content. Nor may you transmit it or store it in any other website or other form of electronic retrieval system.
13. WHOLE AGREEMENT
These terms and conditions represent the whole agreement between you and www.ausgrp.com concerning your use and access to www.ausgrp.com’s website and your use and access to the documents and information on it. No other term is to be included in this agreement except where it is required to be included by any legislation of the Commonwealth or any State or Territory. All implied terms except those implied by statute and which cannot be expressly excluded are hereby expressly excluded.
14. EXCLUSION OF UNENFORCEABLE TERMS
Where any clause or term above would by any applicable statute be illegal, void, or unenforceable in any State or Territory then such a clause shall not apply in that State or Territory and shall be deemed never to have been included in these terms and conditions in that State or Territory. Such a clause if legal and enforceable in any other State or Territory shall continue to be fully enforceable and part of this agreement in those other States and Territories. The deemed exclusion of any term pursuant to this paragraph shall not affect or modify the full enforceability and construction of the other clauses of these terms and conditions.
This agreement and this website are subject to the laws of South Australia and Australia. If there is a dispute between you and www.ausgrp.com that results in litigation, then you must submit to the jurisdiction of the courts of South Australia.
to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk. You need to make your own enquiries to determine if the information or products are appropriate for your intended use.
In no event will we be liable for any loss or damage including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising from loss of data or profits arising out of, or in connection with, the use of this website.
Through this website you may be able to link to other websites which are not under the control of www.ausgrp.com. We have no control over the nature, content and availability of those websites. The inclusion of any links does not necessarily imply a recommendation or endorse the views expressed within them.