Terms And Conditions Of Sale
These general terms and conditions apply to sales of all Product
supplied by the Seller as defined in clause 1.1 herein.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In these terms and conditions unless expressly stated otherwise:
“Buyer” means the Person named in the relevant Sales Invoice.
“Guarantors” means the directors of the Buyer (if the Buyer is a company) as noted on the annexed Credit Application (if applicable).
“GST” means the goods and services tax as imposed by the GST Law together with any related interest, penalties, fines or other charge.
“GST Amount” means any payment (or the relevant part of that payment) multiplied by the rate of GST.
“GST Law” has the meaning given to that term in a new Tax System (Goods and Services Tax) Act 1999, or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under the Act.
“Payment” means any amount payable pursuant to a Sales Invoice.
“Person” includes an individual, the estate of an individual, a body politic, a corporation, an association (incorporated or
unincorporated) and a statutory or other authority.
“PPSA” means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it.
“Price” means the purchase price for the Product as provided for in the Sales Invoice total.
“Product” means any and all goods and or services provided to the Buyer by the Seller.
“Sales Invoice” means the sales invoice issued by the Seller to the Buyer in which these terms and conditions are deemed to be incorporated.
“Seller” in relation to any sales invoice means Innov8ive Group Pty Ltd:
“Services” means all services provided to the Buyer by the Seller.
“Tax Invoice” has the meaning given to it by the GST Law.
“Taxable Supply” has the meaning given to it by GST Law.
1.2 Interpretation:
(a) Any terms included in a Sales Invoice that are inconsistent with this document shall prevail to the extent of the inconsistency.
(b) Words importing the singular shall include the plural (and vice-versa).
GOVERNING TERMS AND CONDITIONS
(a) The Buyer acknowledges that the Seller does not make any representations or warranties regarding the Product or any matter which is or might be relevant to the Buyer buying or selling the Product other than that which is expressly stated in this document, the Sales Invoice and any supplementary written agreement between the Buyer and the Seller.
(b) The Buyer is deemed to have accepted to these Terms and Conditions if the Buyer places an order or accepts delivery of the Product or Services.
3. TERMS OF PAYMENT
(a) Payment to the Seller for the Product must be made in accordance with the terms agreed to between the Seller and the Buyer (these terms will be offered to the Buyer by the Seller for acceptance if Application for Credit is approved).
Failure of the Buyer to make Payment in accordance with this clause shall render the Payment immediately due and payable. Interest on overdue payments shall attract interest at the rate of 10% per annum calculated on a daily basis from the due date to the date it is paid.
(b) The costs of collection of any moneys that are due and payable by the Buyer, including the fees of any mercantile agent or lawyer engaged by a Seller shall be payable by the Buyer.
4. INSPECTION AND ACCEPTANCE
The Buyer agrees that it shall inspect the Product upon delivery.
The Product shall be deemed to be accepted by the Buyer if the Seller has not received written notice from the Buyer within 7 business days of delivery of the Product that the Product is not in accordance with the Buyer’s order.
5. PASSING OF PROPERTY AND RISK
(a) Risk in the Product shall pass to the Buyer upon delivery of the Product to the Buyer or collection of the Product by the Buyer’s agent or courier as the case may be. In the event that the Seller arranges for delivery of the Product to the Buyer, the Buyer acknowledges and agrees that the Seller will arrange, at the Buyer’s additional cost, appropriate insurance against the Product being damaged or lost in transit until delivered to the Buyer’s nominated address (even if the Buyer is not present at the address). The cost of such insurance will
be added to the Price and payable in the same manner and on the same terms as those stipulated in clause 3 herein. In all other circumstances it will be the Buyer’s responsibility to arrange for its own insurance of the Products whilst in transit.
(b) Delivery to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this Agreement.
(c) If the Buyer requests the Seller to leave the Product outside the Seller’s premises or to deliver the Product to an unattended location, then such Product shall be left at the Buyer’s sole risk.
(d) Any time or date given by the Seller to the Buyer is an estimate only. The Buyer must still accept delivery of the Product even if delivery is late and the Seller will not be liable for any loss or damage incurred by the Buyer as a result of the delivery being late.
(e) Property and title in the Product supplied by the Seller to the Buyer shall not pass to the Buyer until Payment has been made in full and the Buyer shall.
(i) Store such of the Product which has not been paid in full for separately.
(ii) Keep separate records in relation to the proceeds of the sale of such of the Product which has not been paid for, bank the proceeds of any such sale into a separate account and immediately remit such funds to the credit of the Seller.
(iii) If any of the Product is used in a manufacturing process or mixed with other materials, the Buyer shall record the value of the Product so consumed in relation to each unit of finished product and upon sale of any unit of finished product immediately remit that amount from the proceeds of sale to the Seller.
(iv) If the Buyer does not pay for any Product on the due date the Seller is hereby irrevocably authorised by the Buyer to enter the Buyer’s premises (or any premises under the control of the Buyer or as agent of the Buyer if the Product is stored at such premises) and use reasonable force to re-take possession of the Product without liability for the tort of trespass, negligence or payment of any compensation to the Buyer whatsoever.
(f) The Buyer and Seller agree that the provisions of this clause apply notwithstanding any arrangement under which that Seller grants credit to the Buyer
6. SUSPENSION OR TERMINATION OF CREDIT FACILITY
The Seller may, at any time without notice, terminate or suspend the Buyer’s right to purchase the Product upon credit and the Seller
shall not be liable to the Buyer for any loss or damage the Buyer may sustain as a result of such refusal.
7. DEFAULT OF BUYER
If these terms and conditions are not strictly observed by the Buyer, the Seller may in its absolute discretion, refuse to supply to the Buyer and the Seller shall not be liable to the Buyer for any loss or damage the Buyer may sustain as a result of such refusal.
8. RETURNS
(a) Returns will be accepted for faulty or defective Product or any other non-excludable obligations of the Seller set out in the Competition and Consumer Act 2010 (Cth), or similar State and Territory legislation.
(b) Returns other than those referred to in (a) above, must be approved by the Seller in its absolute discretion. These authorised returns must be freight prepaid and will only be accepted if they are in a saleable condition. Notwithstanding the Seller’s approval of returns pursuant to this clause, the Seller reserves the right to charge a handling fee equal to 15% of the price of the returned Product. Product specifically purchased, manufactured, machined or cut to size or to the Buyer’s specification or are provided exclusively by the Buyer are not returnable unless they are of the kind referred to in (a) above.
9. SUPPLY
The Seller reserves the right to suspend or discontinue the supply of Product to the Buyer without being obliged to give any reason for its action.
10. INSTALLATION
The Seller’s Sale Invoice is made on a supply only basis. Installation and commissioning (if any) is at the expense of the Buyer unless otherwise specified in writing by the relevant Seller. The Buyer accepts that installation and commissioning of the Product is at the Buyer’s sole risk. The Buyer acknowledges that the Seller will not be liable for any loss or damage incurred by the Buyer which relates to the installation and/or commissioning of the Product.
11. DESCRIPTIONS
(a) Photographs, drawing illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a Quotation, descriptive literature or a catalogue approximate the Product offered but may be subject to alteration without notice.
(b) Any performance data provided by the Seller or a manufacturer is an estimate only and should be construed accordingly.
12. SHIPMENT AND DELIVERY
(a) Upon acceptance of any order by the Seller the Seller will seek confirmation of the period of shipment or delivery. If any variation has occurred in the quoted period (which will delay delivery by more than 14 days) the Seller will notify the Buyer. Unless the Buyer objects in writing within 7 days of that notification to the Buyer, the period of shipment or delivery notified to the Buyer will be the contractual period for shipment or delivery. The Buyer acknowledges and agrees that the period of shipment or delivery quotes by the Seller is an estimate only and may be varied unilaterally by the Seller but (not by more than 14 days).
(b) A delivery charge may apply to deliveries with the exception of back order deliveries which are part of an original order that has been partly fulfilled.
(c) Unless otherwise agreed in writing, if the Seller prepays freight, insurance, custom and import duties (if any), landing and delivery charges and all other charges in connection with shipment and delivery of the Product, then any such charges shall be to the Buyer’s account. The Seller reserves the right to nominate the means of delivery.
(d) The Seller reserves the right to make part deliveries of any order, and each part delivery shall constitute a separate sale of the Product upon these terms and conditions. A part delivery of an order shall not invalidate the balance of an order.
(e) The Seller shall not be responsible or liable for any costs, expenses, losses or damages for delay in the delivery or supply of the Product.
(f) The Buyer shall be responsible or liable for any costs, expenses, loses or damages for deliveries in emptying and returning shipping containers used to deliver the Products to the Buyer (including but not necessarily limited to container detention fees, redirecting fees and storage fees).
13. VARIATION BY MANUFACTURER
Where the Seller is acting as agent for a manufacturer or supplier, the Seller shall not be liable for any alteration or variation in the Product made by the manufacturer or the supplier.
14. CURRENCY
Where the Product is imported into or exported from Australia, any adverse variation in the price arising from fluctuation in exchange rates between the date of the Buyer’s order and the date of payment by the Seller will be to the Buyer’s account.
15. CONTINGENT EXPENSES
Any charge, duty, impost, sales tax or other expenditure which is not applicable at the date of Sales Invoice but which is subsequently levied upon a Seller in relation to a Sales Invoice as a result of the introduction of any legislation, regulation or government policy, shall be to the Buyer’s account.
16. FORCE MAJEURE
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of the Seller or the Buyer either is unable to perform in whole or in part any obligation under this agreement such party shall be relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and shall not be liable to the other party to this agreement in respect of such inability.
17. BUYER’S CANCELLATION
Unless otherwise agreed in writing, the Buyer shall have no right to cancel an order which has been accepted by a Seller. If a right of cancellation is expressly reserved to the Buyer in writing, such right of cancellation must be exercised by notice in writing from the Buyer to the Seller not later than 28 days prior to the estimated date of shipment by the Seller. Unless otherwise agreed between the Buyer and the Seller, any cancellation by the Buyer prior to shipment shall immediately render any deposit paid by the Buyer to be forfeited to the Seller and the Buyer is liable for 50% of the invoice value of the order cancelled (less any deposit forfeited).
18. LIABILITY
(a) The Seller will not be liable for any claims or damages arising out of or in respect to the supply and or manufacture of the Product including, but not limited to, claims for faulty design, negligent or misleading advice, damages arising from loss or use of the Product, and any direct, special or consequential damages or injury to any person, corporation or other entity.
(b) The Seller makes no express warranties under this Agreement except that to the extent that the Product supplied is covered by the manufacturer’s warranty, the Seller will pass onto the Buyer the benefit of the manufacturer’s warranty.
(c) Upon discovery of any defect in the Product supplied by a Seller the Buyer shall immediately notify the Seller in writing. The Buyer shall not carry out any remedial work to allegedly defective Product without first obtaining the written consent of the Seller to do so.
(d) The Seller excludes all conditions, warranties and terms, whether expressed or implied by law or otherwise in respect of the Product which may apart from this clause be binding upon the Seller, except any implied conditions and warranties the exclusion of which would contravene any statute or cause
this clause to be void.
(e) The Buyer expressly acknowledges and agrees that it has not relied upon, any advice given by the Seller, its agents or employees in relation to the suitability for any purpose of the Product supplied by the Seller.
(f) In the event that the Buyer (or a third party directed by the Buyer) provides to the Seller any plans, designs or specifications in relation to a Product that the Buyer requires the Seller to fabricate, manufacture and/or supply to the Buyer, whether directly by the Seller or through any third party, the Buyer unconditionally and irrevocably indemnifies the Seller from and against any and all liability, claims, damages, losses and/or reasonable costs (including but not limited to any demands, actions, proceedings and/or claims brought against the Seller by a third party alleging infringement of intellectual property rights owned or controlled by the third party in respect of the Product or such plans, designs or specifications provided by the Buyer).
19. ALTERATION TO CONDITIONS
The Seller may, at any time and from time to time, alter these terms and conditions.
20. GST
The parties agree that:
(a) the Price is inclusive of GST.
(b) all other Payments have been calculated without regard to GST.
(c) each partly will comply with its obligations under the Trade Practices Act 1974 when calculating the amount of any Payment and the amount of any relevant Payments will be adjusted accordingly.
(d) if the whole or any part of any Payment is the consideration for a Taxable Supply (other than for payment of the Price) for which the payee is liable to GST, the payer must pay to the payee an additional amount equal to the GST Amount, either concurrently with that Payment or as otherwise agreed in
writing.
(e) any reference to a cost or expense in this Agreement excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party can claim an Input Tax Credit, and the payee will provide to the payer a Tax Invoice.
21. CHARGE IN LAND
(a) By executing this Credit Application the Buyer and if the Buyer is a company, each of the Directors of the Buyer (“the Directors”), hereby create an interest in land and charge in favour of the Seller in respect of all real estate, land and buildings owned by the Buyer and/or the Directors of the Buyer.
(b) To better secure the interest in land and charge given by clause 21 (a) the Buyer and the Directors hereby consent to the Seller lodging and registering a caveat on the titles of each and any piece or parcel of land owned by the Buyer and each and any piece or parcel of land owned by the Directors or any of them.
22. POWER OF ATTORNEY
The Buyer and the Directors warrant and agree that they will when called upon by the Seller and/or each/all of the owners of the business to so do, expeditiously sign any consent or other document required by the Department of Environment and Resource Management (or its replacement controlling the registration of caveats) to cause or permit the registration of any such caveat. If the Buyer or any Director refuses or neglects to execute such consent or other document, the Buyer and each of the directors hereby duly appoint the Seller their lawful attorney to execute such consent or other document on its/their behalf. The Buyer and the Directors indemnify and hold harmless the business for cost of preparing and registering such caveat.
23. PERSONAL GUARANTEE
In consideration for the Seller providing the Product to the Buyer, the Guarantors (and if more than one then jointly and severally) hereby guarantees to the Seller the obligations of the Buyer pursuant to these Terms and conditions, particularly, but not necessarily limited to, the payment of any and all monies by the Buyer to the Seller.
24. GOVERNING LAW
These terms and conditions and any contract including them shall be governed by and construed in accordance with the laws of the State of Queensland and the Seller and Buyer submit to the nonexclusive jurisdiction of the Courts of Queensland.
25. TERMS & CONDITIONS TO CONTINUE TO APPLY
The terms of this Agreement are continuing and apply to all subsequent sales by Innov8ive to the Buyer.
26. PPSA
26.1 The Buyer acknowledges that the Seller has a security interest (for the purposes of the PPSA) in the Product and any proceeds from the on-sale thereof until the title in and to the Product passes to the Buyer in accordance with clause 5(e). This security interest secures all moneys owing by the Buyer to the Seller (including the Price of the Product) under any contract or otherwise (“the Amounts Owing”).
26.2 The Buyer acknowledges that each security interest over Product (or their proceeds) arising under this clause 26 is a purchase money security interest to the extent that it secures payment of the Amounts Owing in relation to that particular Product.
26.3 The Buyer must not assign or grant a security interest in respect of any accounts owed to it in relation to the Product without the Seller’s prior written consent. The Company has a security interest in all such accounts to secure the Amounts Owing.
26.4 The Buyer consents to the Seller effecting a registration on the PPSA Register (in any manner the Seller considers appropriate) in relation to any security interest contemplated by these Conditions of Sale and the Buyer agrees to provide all assistance reasonably required to facilitate this.
26.5 The security interests arising under this clause 26 attach to the Product when the Purchaser obtains possession of the Product and the Buyer and the Seller confirm that they have not agreed that any security interests arising under this clause 26 attach at any later time.
26.6 In addition to any rights the Seller may have under Chapter 4 of the PPSA the Seller shall be entitled at any time until the title in and to the Product passes to the Buyer in accordance with clause 5(e):
(a) to demand the return of the Product, upon which the Buyer must immediately return to the Seller that Product.
(b) to the extent permitted by law, to enter (or have its representative enter) any premises occupied by the Buyer in order to search for and remove the Product without notice to the Buyer and without liability to the Buyer (including liability in relation to negligence). The Buyer and its representatives shall provide all reasonable assistance to the Seller and its representatives for this purpose.
(c) to retain, sell or otherwise dispose of that Product on any terms and In any manner It sees fit and, subject to section 140 of the PPSA, may apply the proceeds to repay any debt owed to it by the Buyer.
26.7 If there is any inconsistency between the rights of the Seller under clause 26 and its rights under Chapter 4 of the PPSA, clause 26 prevails to the extent permitted by law.
26.8 The Buyer indemnifies the Seller against any claim (including negligence) in respect of any damage to the property of, or the premises occupied by, the Buyer or any consequential loss or pure economic loss caused by another party when searching for and removing the Goods in accordance with
clause 26.6.
27. SET-OFF
27.1 The Buyer agrees that:
(a) The Seller may set-off any credit amount that the Seller owes to the Buyer against any debt due by Buyer to the Seller at the Seller’s sole discretion.
(b) The Buyer is not entitled to withhold payment of any money in respect of any alleged set-off or claim the Buyer might have against the Seller.
28. SEVERANCE AND WAIVER
28.1 If any part of this agreement is found to be void, unlawful, or unenforceable then that part will be deemed to be severed from the agreement and the severed part will not affect the validity and enforceability of any remaining provisions. Any waiver of the Seller’s right under this agreement must be in writing and signed by an authorised representative of the Seller.
Limited Manufacturer’s Warranty for Innov8ive Group Window and Door Products
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
The Warranty
We warrant that the Product is manufactured in accordance with Australian Standards and is free from defects in workmanship and materials for the Warranty Period.
What we must do if the Product is Defective
Subject to the conditions of warranty set out in clause 3, if the Product is found to be defective and is returned to the place of purchase at your expense during the Warranty Period, we will repair or replace the Product free of charge.
What you must do to Claim Under the Warranty
In order to claim under the Warranty, you must:
1.1 Advise us of your claim in writing within thirty (30) days of becoming aware of the defect arising in the Product.
1.2 Be able to show that the Product was installed in accordance with the relevant Australian Standards and building practice and manufacturer’s instructions.
1.3 Be able to show that the damage or defect has arisen solely from faulty materials or manufacture.
1.4 Be able to show that the Product has not been misused, mistreated, damaged or neglected by physical means including but not limited to, faulty installation, overloading or movement caused by natural movement of other structures, fair wear and tear, natural colour variations or fading, pests, accidents or acts of God, after purchase.
1.5 Be able to show that you have fulfilled your Product Maintenance Obligations.
1.6 Be able to show that the Product has not been used, including altered, modified or repaired, in a manner inconsistent with the Prescribed Purpose, Australian Standards and building practice or a use for which the Product has not been designed or approved by us for.
1.7 Be able to show that the Product has not at any time been:
a. Inadequately waterproofed and/or re-sealed.
b. Exposed to extreme heat and/or humidity, salt spray, corrosive chemicals, excessive vibrations or movements, or other location-related factor.
c. Re-installed at a location other than the original installation site.
d. Inadequately supported by any structure to which it is installed.
1.8 Be able to show that the Product was inspected and accepted within forty-eight (48) hours of the purchase.
1.9 Be able to show that you are the original purchaser by production of the original receipt of purchase clearly showing the Date of Purchase.
1.10 Pay all transportation charges incurred in returning the defective Product (or parts thereof) for repair or replacement, together with the cost of returning them to you.
Limitations
2.1 We accept no responsibility for glass breakage (except for faulty workmanship or material) that occurs after delivery of the Product to you in accordance with our Terms and Conditions.
We do, however, warrant that glass used within the Product complies with Australian Standards.
2.2 We accept no responsibility for errors made by you or your builder, for example, ordering the wrong materials, size or performance ratings.
2.3 This Warranty does not apply to:
a. moving parts such as lock cylinders, rollers, lever handles,hinges, activators or springs.
b. damage caused by accident, transport, installation or any external cause.
c. service work or repairs carried out by a party other than us.
d. any defects or allowances permitted in accordance with Australian Standards
e. any defects in powder coating or glass.
Other Important Information in Relation to the Warranty
3.1 Our Liability pursuant to this Warranty is (to the extent it is lawful to do so) limited to the cost of repair or replacement of the Product. We shall not in any circumstances be liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising from the Product or its use or application by you.
3.2 This Warranty is non-transferable and does not apply to any purchaser who bought the product from a reseller or distributor not authorised by us, including but not limited to purchases from internet auction sites or purchases considered as second-hand goods.
3.3 Should the Product prove to be irreparable, we reserve the right to substitute an equivalent product if available or to retract the Warranty if no replacement is available.
3.4 The benefits provided to you by the Warranty are in addition to other rights and remedies available to you.
Who is Giving the Warranty?
The entity giving the Warranty is:
Innov8ive Group Pty Ltd
ACN 632 521 763
27 Barclay Road,
Derrimut VIC 3030
hone: (03) 8322 0199
Email: [email protected]
Definitions
“Australian Standards” means the applicable codes and guidelines published from time to time by Standards Australia.
“the Date of Purchase” means the date the Product is purchased and fully paid for from an authorised retailer as evidenced by the properly dated receipt issued to you at the time of purchase on or after 01st January 2020.
“Product Maintenance Obligations” means the obligations set out in the Care and Maintenance guide provided to you with the Product and any applicable manufacturer’s instructions. Care must be taken to avoid damage and to ensure the Product is not neglected in storage or on site. Harsh or inappropriate cleaning chemicals, i.e. bleach, acid, chlorine, must never be used to clean your Product.
“the Product” means an Innov8ive Window or Door product ordinarily manufactured and sold by us.
“We, Our or Us” means Innov8ive Group Pty Ltd.
“the Warranty Period” means six (6) years from the Date of Purchase.
“the Prescribed Purpose” means for use solely and exclusively as a window or door for personal domestic and household use.
“You” means the purchaser of the Product.