Advance Furnishing Pty Ltd
Trading as Waverley Floorworld
A.B.N. 98 083 545 279
TERMS AND CONDITIONS OF TRADE
Effective January 2016
DEFINITIONS AND INTERPRETATIONS
In the interpretation of these terms and conditions words importing the singular will include the plural and vice versa; words importing any one gender will include other genders; words importing natural person will include corporations, firms, government departments, statutory
authorities, and other entities recognised by law and vice versa; all references in these terms and conditions to any statutory enactment or law will mean and be construed as references to that enactment or law as amended or modified or re-enacted from time to time and to the
corresponding provisions of any similar enactment or law of any relevant jurisdiction; if more than one person is named and described as the Customer the obligations of those persons under these terms and conditions will be joint and several.
SALE AND PURCHASE OF GOODS
2.1 Floorworld Pty. Ltd. (‘Floorworld’) agrees to supply and the customer specified on the invoice (‘Customer’) agrees to purchase the goods specified on the invoice (‘Goods’) upon and subject to the terms and conditions set out in these terms and conditions of Trade.
2.2. Floorworld reserves the right to accept in whole or in part or reject any order submitted by the Customer to purchase Goods from Floorworld.
PAYMENT FOR GOODS
3.1 Unless otherwise specified on any invoice and/or statement of account issued by Floorworld, payment of the price specified on the invoice (‘Price’) will be made in full by the Customer to Floorworld within 30 days from the date of the invoice. (25th of each month)
3.2 Unless expressly stipulated by Floorworld to be a firm price, the quoted price is subject to variation to take account of variances in wages, materials or other costs since the date of the order and, in the event of such variation, Floorworld may adjust the quoted price, to the extent of
such variation, and the revised price will be payable as if it were the original quoted price.
3.3. If the quoted or revised price is not paid in full pursuant to clause 3.1, the Customer will pay to Floorworld on demand interest computed on the unpaid amount of the price calculated from the date of delivery of the Goods to the date on which the quoted or revised price is paid in full
at the rate of 1.25% per month.
DELIVERY OF GOODS
4.1 Subject to clause 4.2, Floorworld will use reasonable endeavours to deliver the Goods to the Customer on or before the delivery date specified on the order (if any) but otherwise as notified by Floorworld to the Customer (‘Delivery Date’).
4.2 If Floorworld is unable by reason of industrial dispute or by reason of shortages of material or labour, shipping delays, war, riot, act of God or any other case whatsoever beyond the reasonable control of Floorworld (‘Force Majeure Event’), to deliver the Goods to the Customer on or
before the Delivery Date, then Floorworld will have the option:
(a) to deliver the Goods to the Customer after cessation of any Force Majeure Event and in this case these terms and conditions will have full force and effect as though the Goods had been delivered on or before the Delivery Date; or
(b) without prejudice to its other rights, to rescind these terms and conditions and in this case the Customer will have no recourse, claims or actions whatsoever against Floorworld except for a refund of any part of the price paid in respect of the Goods.
4.3 The Customer acknowledges that Floorworld does not warrant or represent that the Goods will be delivered on the Delivery Date, and failure to deliver by the Delivery Date will not avoid or give the Customer the right to avoid any contract or render Floorworld liable in any way for any
direct or consequential loss arising from such failure and that Floorworld is at liability to make deliveries within a reasonable period before or after the Delivery Date.
4.5 The Customer agrees that if it fails or refuses to take delivery of the Goods on or before the Delivery Date or within 24 hours of the Delivery Date, then all monies paid to Floorworld will be forfeited to Floorworld and Floorworld may (without prejudice to its other rights) terminate the
contract and resell any goods the subject of the contract or store the Goods at the risk and expense of the Customer.
5.1 The Customer must comply with all reasonable directions given by the party delivering the Goods and provide such information as is reasonably required by Floorworld to effect delivery.
5.2 Where Floorworld arranges transportation of the Goods by an independent carrier Floorworld will have absolute discretion as to the appointment of the independent carrier.
5.3 Where the Goods are transported by the employees, servants or agents of a contractor engaged by or on the behalf of Floorworld, the Goods will be deemed to be delivered when they leave the premises of Floorworld and will thereafter be at the risk of the customer.
LIMITATION OF CLAIMS BY CUSTOMER
6.1 The Customer acknowledges that the Customer has not, in acquiring the Goods for any particular purpose, relied upon the skill, judgment or recommendation of Floorworld or any of its servants or agents.
6.2 The Customer agrees to inspect the Goods thoroughly as the Goods upon delivery of the Goods to the Customer.
6.3 Any claims by the customer in respect of the Goods must be notified in writing by the customer to Floorworld within 30 days after the Goods are delivered, and if not notified, the Customer forever releases and discharges Floorworld from all actions, suits, charges, claims and demands
relating directly or indirectly to the purchase by the Customer from Floorworld of the Goods.
RETURN OF GOODS
No Goods returned for credit will be accepted unless returned in accordance with the written agreement between the Customer and Floorworld. Without limiting the foregoing, in no case will Floorworld accept the return of Goods which have been altered in any way (including by way
of heating or cooking).
LIABILITY AND INDEMNITY
8.1 Floorworld acknowledges that under applicable State, Territory and Commonwealth Laws including in particular the Sale of Goods Act (NSW) 1958 and the Competition and Consumer Act (Cth.) 2011, certain conditions and warranties may be implied into this contract and rights may
be conferred upon the Customer which cannot be excluded, restricted or modified. Nothing of this contract whether express or implied, will be taken to exclude, restrict or modify any such non-excludable conditions, warranties or rights.
8.2 Subject to clause 9.1, the Customer acknowledges and expressly agrees with Floorworld:
(a) that the Customer is satisfied that the Goods are fit for the purpose for which they were purchased; and
(b) that any implied warranty or condition whether statutory or otherwise and whether as to quality, condition or fitness for any particular purpose is expressly excluded from these terms and conditions to the full extent permitted by law.
8.3 The Customer agrees and acknowledges that Floorworld to the full extent permitted by law accepts no liability or responsibility arising from any direct or consequential loss, damage or expense of any kind or nature and the Customer releases and forever discharges Floorworld from
all such responsibilities and liabilities and any claims, demands or causes of action in respect thereof.
8.4 The Customer will, to the full extent permitted by law indemnify and keep indemnified Floorworld against all actions, proceedings, claims or demands for loss or damage of whatsoever nature made or threatened against Floorworld by any third party or by any of the Customer’s employees,
agents or contractors arising directly or indirectly out of or in respect of the use, custody or purchase and supply of the Goods.
8.5 If Floorworld accepts liability for a claim or is held liable by a court of competent jurisdiction for a breach of conditions or warranty implied by statute and not negative pursuant to these terms and conditions, any liability for such breach will be limited at Floorworld’s option to replacement
of the Goods or the supply of equivalent Goods, and/or repair or restoration of the Goods, and/or the payment of the value of the Goods or of the replacing of the Goods or of acquiring equivalent Goods, and/or the payment of the cost of having the Goods repaired or restored.
RETENTION OF OWNERSHIP
9.1 Until the Customer has paid the quoted or revised price and any moneys outstanding pursuant to this contract or any other contract between Floorworld and the Customer in full, all goods supplied pursuant to this or any other contract between Floorworld and the Customer will remain
the property of Floorworld.
9.2 Notwithstanding clause 9.1 the risk of loss or damage to the Goods will pass to the Customer from the time of delivery to the Customer or its agent and the Customer will keep the Goods properly insured for their insurable value until all moneys whatsoever owing by the Customer to
Floorworld have been paid in full. All policies of insurance will be effected in the joint names of the Customer and Floorworld for their respective rights in respect of loss or damage to the Goods and policies of insurance will apply equally to Floorworld and to the Customer as if each
were separately insured under any such policy of insurance.
9.3 Until all moneys owing to Floorworld by the Customer have been paid in full or for all goods supplied to the Customer under this or any other contract and until the Customer has satisfied any other debts owing to Floorworld, the Customer will hold any Goods delivered to it as fiduciary
agent and bailee for Floorworld pending such payment and will ensure that all goods supplied to the Customer by Floorworld are stored separately from all other goods which may be in the Customer’s possession, and that all goods supplied to the Customer by Floorworld are stored
and will comply with all reasonable directions given by Floorworld and/or its representative to ensure compliance with the requirements of this clause.
9.4 Until all moneys due for all Goods supplied to the Customer by Floorworld are paid, Floorworld authorises the Customer to sell the Goods to a third party as a fiduciary agent of Floorworld. The Customer will, however, not represent to a third party that it is any way acting for Floorworld
and Floorworld will not be bound by any contract with third parties made by the Customer.
9.6 If the Customer sells any of the Goods before title in and to the Goods has passed in accordance with clause 10.1, the Customer will hold such part of the book debts (being monies due to the Customer by third parties on account of such sales) (‘Book Debts’) as related to the price of
the Goods sold on trust for Floorworld and will account for such part of the Book Debts separately in its accounts in a manner which clearly identifies such part of the Book Debts as trust assets held on trust for and on behalf of Floorworld.
9.7 The Customer agrees that it will not enter into a forward sale contract with any third party in respect of the Goods.
9.8 The Customer agrees that it will not assign or factor the Book Debts.
9.9 If the Customer fails to pay for the Goods by the Payment Date or if the Customer commits an act of bankruptcy or has a receiver or a receiver and manager appointed over any of its assets or goes into liquidation (including provisional liquidation) or any similar event occurs, then,
without prejudice to any other rights of Floorworld, Floorworld will be entitled to enter upon any premises where the Goods for which full payment has not been made are stored and to retake possession of such Goods. Floorworld will then be entitled to resell such Goods to a third
party, and the Customer will indemnify Floorworld from and against, and will pay on demand to Floorworld all loss, damage, costs or expenses incurred by Floorworld in respect of such possession and resale of the goods or any of them.
9.10 To the extent that the terms of this clause create a charge registrable by Floorworld over the Goods, the Customer appoints Floorworld as its agent to register that charge on behalf of Floorworld at any time and to do all acts necessary to procure an extension of the relevant period for
such registration pursuant to Section 263(1) of the Corporation Act 2001 (‘relevant period’), including, without limitation, making an application to the court pursuant to Section 266(4) of the Corporation Act 2001 for an extension of the relevant period.
PERSONAL PROPERTY SECURITY ACT (PPSA)
10.1 The Customer agrees, at the request of Floorworld, to enter into a Security Agreement with Floorworld to grant in favour of Floorworld a Security Interest in all the Customer’s present and after acquired property.
10.2 The Customer acknowledges and agrees that it shall, within 14 days of request from Floorworld, do all things and sign all documents as required by Floorworld to register, confirm or validate the Security Interest created over the Customer’s assets by any Security Agreement.
10.3 Floorworld may exercise its rights under the Security Agreement any time after the Customer fails to comply with this Agreement, without Floorworld first having to take any action or enforce any of its other rights against the Customer.
10.4 The Customer will be entitled to a release of the Security Agreement when all its obligations under this Agreement have been satisfied.
10.5 The Customer shall not without Floorworld’s prior written consent, which will not be unreasonably withheld, do any of the following:
(a) create or allow to exist a Security Interest over or in connection with this Agreement, the franchise or the assets of the Franchised Business other than any Permitted Security Interests;
(b) acquire any asset which is, or upon acquisition, will be subject to a Security Interest which is not a Permitted Security Interest; or
(c) give any person other than Floorworld control or possession of the assets of the Franchised Business (other than under a Permitted Security Interest).
10.6 The Customer agrees that it will promptly take such action as Floorworld may require (including providing information or signing documents) to ensure that any Security interest granted in favour of Floorworld attaches to the secured property and to enable Floorworld to perfect any
such Security Interest or otherwise exercise any rights that it may have under the PPS Law in relation to the secured property.
10.7 The Customer acknowledges and agrees that, from the registration commencement time under the PPSA:
(a) it shall not cause or permit any person to take a Security Interest over, or to register a financing statement in relation to, any secured property without the prior written consent of Floorworld and will immediately notify Floorworld if it becomes aware of any person taking steps to
register a financing statement in relation to such secured property;
(b) it has no rights under, or by reference to, sections 125, 142 and 143 of the PPSA if it defaults and Floorworld takes enforcement action under this Agreement in respect of the secured property ;
it waives its rights to:
(i) receive any notice under sections 95, 130 and 135 of the PPSA in relation to the enforcement of any Security Interest over the secured property;
(ii) receive a statement of account under section 132(3)(d) and 132(4) of the PPSA if Floorworld disposes of any of the secured property following repossession of that secured property; and
(iii) receive a copy of, or notice of, any verification statement confirming registration of a financing statement or a financing change statement relating to any Security Interest under, or provided for by, this Agreement.
10.8 Except if section 275(7) of the PPSA applies, each party to this Agreement agrees not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available.
GOODS AND SERVICES TAX
11.1 For the purposes of this clause 11:
(a) ‘Price Payment’ means any payment of the Price (whether quoted or revised pursuant to clause 3.2) or other amount payable by the Customer to Floorworld under these Terms and Conditions in respect of or in connection with any Supply made or provided by Floorworld which
is Taxable Supply, but does not include any payment under clause 11.3;
(b) ‘GST Act’ means the Act A New Tax System (Goods and Services Tax) Act 1999;
(c) ‘GST Rate means the GST rate from time to time provided for in the A New Tax System (Goods and Services Tax Imposition – General) Act 1999, and
(d) The terms ‘Consideration’, ‘GST’, ‘GST Law’, ‘Input Tax Credit’, ‘Taxable Supply’, ‘Tax Invoice’ and ‘Tax Period’ have the meaning given by section 195-1 of the GST Act. 11.2 Any Price Payment is exclusive of GST.
11.3 In addition to each Price Payment, the Customer must pay to Floorworld an amount equal to each Price Payment multiplied by the GST Rate, such additional amount to be paid at the same time and in the same manner as the Customer is required to pay the relevant Price Payment.
11.4 Floorworld must provide a valid Tax Invoice (or any other documentation enabling Input Tax Credits to be claimed by the Customer) to the Customer no later than seven (7) days after the occurrence of any event that causes the GST liability of Floorworld on any Taxable Supply made
to the Customer under these terms and conditions to be attributed to a particular Tax Period.
Any samples, goods or materials supplied free of charge to the Customer by Floorworld remain the property of Floorworld and must be returned promptly to Floorworld at the request of Floorworld.
Floorworld reserves the right to make changes and other improvements to the Goods without prior notice.
The failure of Floorworld at any time to insist on performance of any of these terms and conditions is not a waiver of the rights of Floorworld at any time to insist on performance of that or any other provision.
If any provision of these terms and conditions is or is found to be invalid or unenforceable, that invalidity or unenforceability will not affect the validity or enforceability of the other provisions of these terms and conditions and these other provisions will remain in full force and effect.
These terms and conditions contain the entire agreement and understanding between Floorworld and the Customer and the contract arising there from will not be amended, varied or waived unless such amendment, variation or waiver is in writing signed by the Customer and by a
person authorised to sign such amendment, variation or waiver on behalf of Floorworld.
These terms and conditions will be governed by and construed in accordance with the law in force in New South Wales and the Customer and Floorworld agree to submit to the jurisdiction of the Victorian Courts in respect of any dispute arising in connection with this contract.