Jaqmar Pty Ltd [T/as Best Doors] - Terms and Conditions
The terms and conditions set out below will apply to all goods and services provided by [Best Doors] (Seller) (Terms & Conditions) and the acceptance of any Quotation will be evidence of the Customer’s agreement to these Terms & Conditions.
1. Definitions
1.1 Customer means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on the Quotation provided by the Seller to the Customer and any person acting on behalf of and with the authority of the Buyer;
1.2 Goods mean all Goods supplied by the Seller to the Customer and as described on any invoice, quotation, work authorisation or any other form as provided by the Seller to the Customer Buyer (and where the context permits includes supply of Services);
1.3 parties means the Customer or the Seller and party means any of them;
1.4 PPSA means the Personal Property Securities Act 2009 (Cth);
1.5 PPSR means the Personal Property Securities Register;
1.6 Price means the Price payable for the Goods and/or Services as agreed between the Seller and the Customer in accordance with these Terms & Conditions;
1.7 Quotation means any quotation for Goods and Services provided by the Seller to the Customer in accordance with these Terms & Conditions;
1.8 Services means all services supplied by the Seller to the Customer and includes any advice or recommendations of the Seller (and where the context permits includes supply of Goods).
2. Acceptance
2.1 Upon acceptance of these Terms & Conditions by the Customer, the Terms & Conditions are binding and can only be amended with the written consent of the Seller.
2.2 The Customer will give the Seller not less than 14 days prior written notice of any change in the Customer’s details (including but not limited to name, address, facsimile number, business practice). The Customer will be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause.
2.3 Goods and Services are supplied by the Seller only on the Terms & Conditions to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these Terms & Conditions.
3. Quotations and Orders
3.1 Any Quotation provided by the Seller is not an offer or obligation to sell but an invitation to treat only.
3.2 A Quotation is open for acceptance within the period stated in the quotation or within 30 days of the date of the quotation if no period is stated.
3.3 The Seller reserves the right to accept or reject any order it receives. Until the Seller accepts in writing any order submitted, the Seller is not obliged to provide any Goods or Services.
3.4 If an order is accepted by the Seller for Goods or Services, and the Customer cancels the order after the date that the order was accepted by the Seller, the Customer will forfeit any deposit paid for that order.
3.5 The Seller is not responsible to the Customer for a breach of its obligation to supply the Goods or Services pursuant to an order the Seller has accepted, or for any delay in delivery, if the failure or delay is caused by matters beyond the reasonable control of the Seller (including but not limited to acts of God, acts of government, COVID-19 or pandemic restrictions (which includes restrictions, regulations or directives imposed by the Federal Government and/or any State Government including but not limited to venue capacity restrictions for indoor and outdoor gatherings, lockdowns, and intrastate or interstate travel restrictions), war or other hostility, national or international disaster, fire, explosion, power failure, equipment failure, strike or lockout, inability to obtain necessary supplies and any other force majeure occurrence)..
4. Price and Payment
4.1 Subject to the terms of the Quotation, the Price will be the Seller’s quoted Price on its Quotation which shall be binding upon the Seller provided that the Buyer accepts the Quotation within the time period stated in the Quotation or within 30 days of the date of the quotation, if no period is stated.
4.2 The Seller may request payment by the Customer of a non-refundable deposit prior to the supply or delivery of the Goods and Services.
4.3 The Seller may, in its sole discretion, require payment of the Price by the Customer either prior to or on delivery of the Goods and Services.
4.4 Time for payment for the Goods and Services will be of the essence and will be as stated on the invoice for the supply of the Goods by the Seller to the Customer. If no time is stated on an invoice, payment will be strictly 30 days following the date of invoice.
4.5 Where there is a delay in the Seller completing the supply or Goods or Services, the Seller is entitled to request a progress payment from the Customer on completion of the part of the Goods or Services undertaken.
4.6 Payment of the Price must be made by cash, bank cheque, credit card, direct credit, or by any other method as agreed to between the Customer and the Seller.
4.7 Unless otherwise stated, GST and other taxes and duties that may be applicable will be added to the Price except when they are expressly included in the Price.
5. Goods
5.1 Delivery of the Goods will take place when the Customer takes possession of the Goods at the Customer’s nominated address. In the event that the Customer is unable to take delivery of the Goods as arranged, the Seller will be entitled to charge a reasonable fee for redelivery.
5.2 The costs of delivery are included in the Price (unless stated otherwise).
5.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of these Terms & Conditions.
5.4 The Seller may, in its sole discretion, deliver the Goods by separate installments.
5.5 Where the Customer expressly requests the Seller to deliver the Goods to an unattended location, such Goods will be left at the nominated location at the Customer’s sole risk.
5.6 The failure of the Seller to deliver the Goods or any part of the Goods will not entitle either party to treat these Terms & Conditions as repudiated.
5.7 The Seller will not be liable for any loss or damage due to failure by the Seller to deliver any of the Goods promptly or at all as a result of circumstances beyond the control of Seller.
6. Title
6.1 Ownership of the Goods will not pass until the Customer has paid the Seller all amounts owing for the Goods and the Customer has met all other obligations due by the Customer to Seller in respect of all contracts or arrangements between the Seller and the Customer.
6.2 The Seller’s title or rights in the Goods will continue until any form of payment by a Customer has been received, honoured, cleared or acknowledged by the Seller.
7. Risk
7.1 Notwithstanding clause 6, all risk in the Goods passes to the Customer on delivery of the Goods in accordance with these Terms & Conditions.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to title passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods.
7.3 The production of these Terms & Conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
8. Competition and Consumer Act 2010 (Cth) (CCA)
8.1 Subject to the Seller’s statutory obligations under the CCA the following provisions apply:
8.2 The Sellers liability for a breach of a condition or warranty implied by Pt 3–2 Div 1 of the CCA is limited to:
8.1.1 in the case of goods, any one (1) or more of the following: the replacement of the Goods or the supply of equivalent goods; the repair of the Goods; the payment of the cost of replacing the Goods or of acquiring equivalent goods; the payment of the cost of having the Goods repaired; or
8.2.2 in the case of services: the supplying of the services again; or the payment of the cost of having the services supplied again.
8.3 Subject to the Seller’s statutory obligations under the CCA and except as provided in these Terms & Conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded.
8.4 The Seller is not liable to the Customer for any 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 any Good or arising out of negligence or in any way whatsoever.
8.5 The Seller’s liability under section 274 of the CCA is expressly limited to a liability to pay the Customer an amount equal to: the cost of replacing the Goods; the cost of obtaining equivalent Goods; or the cost of having the Goods repaired, whichever is the lowest amount.
9. PPSA
9.1 In this clause: financing statement, financing change statement and security interest have the meaning given to it by the PPSA; security agreement means the security agreement under the PPSA created between the Customer and the Seller by these Terms & Conditions.
9.2 The Customer acknowledges and agrees that these Terms & Conditions constitute a security agreement for the purposes of the PPSA and create a security interest in all Goods previously supplied and to be supplied in the future by the Seller to the Customer and a right to any proceeds in the sale of such Goods.
9.3 The Seller and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms & Conditions.
9.4 Unless otherwise agreed to in writing by the Seller, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
9.7 The Customer agrees to unconditionally ratify any actions taken by this Seller under this clause.
9.8 The Customer must not register a security interest over the Seller without its prior written consent.
10. Warranties
10.1 To the extent permitted by law, the Seller does not warrant:
10.1.1 any of the Goods that are not manufactured by the Seller, and in such case the Customer will only have the benefit of the warranty (if any) of the manufacturer of those Goods which forms part of the contract between the Seller and the manufacturer; or
10.1.2 defects or deterioration which, in the opinion of the Seller, have been caused by careless or improper handling, negligence, misuse, non-adherence to operating, cleaning, care or maintenance instructions, alterations or repairs carried out by anyone other than the Seller’s authorised representatives, or by fair wear and tear.
10.2 The Customer acknowledges and agrees that they have had the opportunity to review the variety of Goods offered by the Seller together with their specifications and quality and that unless specifically stated otherwise, that the Good is fit for use. The Seller will not be liable to the Customer in any way for any costs, damage or loss of any kind whatsoever (including, without limitation, liability for direct, indirect, special or consequential loss or damage) incurred or sustained by the Customer or any third party arising from or in connection with the Goods and any damage caused.
10.3 This clause must be read in conjunction with the Seller’s Warranty Statement provided to the Customer.
11. Returns
11.1 A Return of a Good will only be accepted provided that:
11.1.1 the Customer has complied with the Terms & Conditions;
11.1.2 the Seller has agreed in writing to accept the return of the Goods;
11.1.3 the Goods are returned at the Customer’s cost within 7 days of delivery; and
11.1.4 the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
11.2 The Seller will not be liable for Goods which have not been stored, used and/or handled in a proper manner.
11.3 The Seller will not accept the return of Goods for credit.
11.4 Non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
11.5 The Customer may incur a handling fee of 10% of the value of the returned Goods on return.
12. Default
12.1 Interest on overdue invoices will accrue daily from the date when payment becomes due, until the date of payment, at a rate of fifteen percent (15%) per annum (and such interest will compound monthly) after as well as before any judgment.
12.2 In the event that the Customer’s payment is dishonoured for any reason, the Customer will be liable for any dishonour fees incurred by the Seller.
12.3 If the Customer defaults in payment of any invoice when due, the Customer will indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and Seller’s collection agency costs (if permissible by law). If any account remains overdue after 3 days then an amount of the greater of $50.00 or 10% of the amount overdue (up to a maximum amount of $250.00) shall be levied for administration fees which sum shall become immediately due and payable by the Customer.
12.4
12.5 Without prejudice to the Seller’s other remedies at law, the Seller will be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller will, whether or not due for payment, become immediately payable in the event that:
12.5.1 any money payable by the Customer to the Seller becomes overdue, or in the Seller’s opinion, the Customer will be unable to meet its payments as they fall due; or
12.5.2 the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
12.5.3 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
12.6 In the event that the Seller retains possession or control of the Goods, payment of the Price is due to the Seller and the Seller has made demand in writing of the Buyer for payment of the Price in terms of these Terms & Conditions and the Seller has not received the Price of the Goods, then, whether title in the Goods has passed to the Buyer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Buyer the loss to the Seller on such disposal.
13. Cancellation
13.1 The Seller may cancel any order to which these Terms & 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 the Seller will repay to the Customer any sums paid in respect of the Price. The Seller will not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 The Customer will be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
13.3 Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will not be accepted once production has commenced.
14. Privacy Act 1988 (Cth)
14.1 The Customer acknowledges and agrees that the Seller’s Privacy Policy (as may be amended from time to time) is as set out on the Seller’s website located at [www.bestdoors.com.au] and that the Customer has read and understood the terms of the Privacy Policy of the Seller.
15. Display Stands
15.1 Display stands and associated equipment (Equipment) will at all times remain the property of the Seller and are returnable on demand by the Seller. In the event that the Equipment is not returned to the Seller in the condition in which they were delivered the Seller retains the right to charge the Price of repair or replacement of the Equipment.
15.2 The Buyer acknowledges that the Equipment is to only be utilised for the display of Goods provided by the Seller.
15.3 The Customer will:
15.3.1 keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment and the Buyer accepts full responsibility for the safekeeping of the Equipment and indemnifies the Seller for all loss theft or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss theft or damage is attributable to any negligence failure or omission of the Buyer;
15.3.2 not alter or make any additions to the Equipment including but without limitation defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
15.3.3 comply with all occupational health and safety laws relating to the Equipment and its operation;
15.4 The Buyer acknowledges and agrees that it loans the Equipment at its own risk and the Buyer is responsible for theft or damage to the Equipment whilst on loan.
16. Intellectual Property
16.1 The Seller owns or is licensed to use trademarks, confidential information and all other copyright, patent, design or trademark rights in relation to the Goods (IP).
16.2 Customer acknowledges Seller’s title to the IP and must not:
16.2.1 claim any right, title or interest in the IP;
16.2.2 register or record or attempt to register or record anywhere in the world any of the IP or any derivations, improvements or variations, or aid or abet anyone else to do so;
16.2.3 manufacture or have manufactured or sell or have sold any products, or provide any services, using or taking advantage of the IP.
16.3 Customer acknowledges that any derivation, variation, modification or improvement to any of the IP will be and remain Seller’s property. Customer hereby assigns to Seller any intellectual property rights that it may create or obtain in such any derivation, variation, modification or improvement.
16.4 Customer must not use, reproduce or copy the software associated with the Goods, without the prior written consent of Seller.
16.5 Customer shall indemnify Seller for and in respect of claims by any third party in relation to Goods which arise from, or can be attributed to, any special requirements or specifications of Customer.
17. General
17.1 If any provision of these Terms & Conditions will be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
17.2 If any provisions of these Terms & Conditions are inconsistent with the PPSA, the PPSA will prevail to the extent of that inconsistency.
17.3 These Terms & Conditions will be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
17.4 To the extent permitted by law:
17.4.1 The Seller will 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 the Seller of these Terms & Conditions;
17.4.2 In the event of any breach of this contract by the Seller the remedies of the Customer will be limited to damages which under no circumstances will exceed the Price of the Goods.
17.5 The Customer will not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
17.6 The Customer agrees that the Seller may review these Terms & Conditions at any time. If, following any such review, there is to be any change to these Terms & Conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change. The Customer will be under no obligation to accept such changes except where the Seller supplies further Goods or Services to the Customer and the Customer accepts such Goods or Services.
17.7 The failure by the Seller to enforce any provision of these Terms & Conditions will not be treated as a waiver of that provision, nor will it affect the Seller’s right to subsequently enforce that provision.
17.8 Where the Seller has designed or drawn or provided designs and/or specifications Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Buyer with the Seller’s consent. The Seller may use any documents, designs, drawings for Goods created by Seller for the purposes of advertising or marketing by the Seller.
17.9 These Terms may only be assigned by either party with the prior written consent of the other party.
