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Conditions of Sale
1. Definitions
In these terms:
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) as amended;
“Agreement” means any agreement for the provision of goods by Mr Scaffold to the Customer;
“Consumer” is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement;
“Customer” means the person, jointly and severally if more than one, acquiring goods from Mr Scaffold;
“goods” means good supplied by Mr Scaffold to the Customer;
“GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
“PPSA” means the Personal Property Securities Act 2009 and associated regulations as amended:
“Mr Scaffold” means Mr Scaffold Pty Ltd (ABN 73 109 955 606); and
“Terms” means these Terms and Conditions of Sale.
2. Basis of Agreement
2.1 Unless otherwise agreed by Mr Scaffold in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
2.2 Any quotation provided by Mr Scaffold to the Customer for the proposed supply of goods is:
(a) valid for 30 days;
(b) an invitation to treat only; and
(c) only valid if in writing.
2.3 The Terms may include additional terms in Mr Scaffold’s quotation, which are not inconsistent with the Terms.
2.4 An Agreement is accepted by Mr Scaffold when Mr Scaffold accepts, in writing or electronic means, an offer from the Customer or provides the Customer with the goods.
2.5 Mr Scaffold has absolute discretion to refuse to accept any offer.
2.6 The Customer must provide Mr Scaffold with its specific requirements, if any, in relation to the goods.
2.7 Mr Scaffold may vary or amend the Terms by written notice to the Customer at any time. Any variations or amendments will apply to orders placed after the notice date.
3. Pricing
3.1 Prices quoted for the supply of goods exclude GST and any other taxes or duties imposed on or in relation to the goods.
3.2 If the Customer requests any variation to the Agreement, Mr Scaffold may increase the price to account for the variation.
3.3 Where there is any change in the costs incurred by Mr Scaffold in relation to the goods, Mr Scaffold may vary its price to take account of any such change, by notifying the Customer.
3.4 Prices are in Australian Dollars and payment will only be accepted in Australian Dollars.
4. Payment
4.1 Unless otherwise agreed in writing:
(a) Subject to 4.1(b), full payment for the goods must be made within 30 days of Mr Scaffolds’ invoice date.
(b) Mr Scaffold reserves the right to require payment in full on delivery of the goods.
4.2 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.3 Payment terms may be revoked or amended at Mr Scaffolds’ sole discretion immediately upon giving the Customer written notice.
4.4 The time for payment is of the essence.
5. Payment Default
5.1 If the Customer defaults in payment by the due date of any amount payable to Mr Scaffold, then all money which would become payable by the Customer to Mr Scaffold at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Mr Scaffold may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent for the period from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify Mr Scaffold from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any goods;
(c) cease or suspend supply of any further goods to the Customer;
(d) by written notice to the Customer, terminate any uncompleted contract with the Customer.
5.2 Clauses 5.1(c) and (d) may also be relied upon, at Mr Scaffolds option:
(a) Where the Customer is a natural person 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, administrator, receiver or manager or similar functionary appointed in respect of its assets 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.
6. Passing of Property
6.1 Until Mr Scaffold receives full payment in cleared funds for all goods supplied by it to the Customer, as well as all other amounts owing to Mr Scaffold by the Customer;
(a) title and property in all goods remain vested in Mr Scaffold and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for Mr Scaffold;
(c) the Customer must keep the goods separate from its own goods and maintain Mr Scaffolds labeling and apckaging;
(d) the Customer must hold the proceeds of sale of the goods on trust for Mr Scaffold in a separate account with a bank to whom the Customer has not given security however failure to do so will not affect the Customers obligation as trustee;
(e) in addition to its rights under the PPSA, Mr Scaffold may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of Mr caffold, and for this purpose the Customer irrevocably licences mr Scaffold to enter such premises and alos indemnifies Mr Scaffold from and against all costs, claims, demands or actions by any party arising from such action.
7. Personal Property Securities Act
7.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
7.2 For the purposes of the PPSA;
(a) terms used in clause 7 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and Mr Scaffold has a Purchase Money Security Interest in all present and future goods supplied by Mr Scaffold to the Customer and the proceeds of the goods;
(c) The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(d) the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by Mr Scaffold on the Personal property Securities Register.
7.3 The security interest arising under this clause 7 attaches to the goods when the goods are collected or dispatched from mr Scaffolds premises and not at any later time.
7.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 1221(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
7.5 Mr Scaffold and the Customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.
7.6 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on Mr Scaffold will apply on to the extent that they are mandatory or Mr Scaffold agrees to their application in writing; and
(b) where Mr Scaffold has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
7.8 Mr Scaffold may allocate amounts received from the Customer in any Mr Scaffold determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by Mr Scaffold.
7.9 For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Terms or the sale of the goods, except as otherwise required by law or that is already in the public domain.
8. Risk and insurance
8.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the goods being delivered to the Customer or taken from Mr Scaffolds premises.
8.2 The goods are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.
8.3 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the goods sold by Mr Scaffold, unless recoverable from Mr Scaffold on the failure of any statutory guarantee under the ACL.
9. Performance Agreement
9.1 Any period or date for delivery of goods stated by Mr Scaffold is an estimate only and not a contractual commitment.
9.2 Mr Scaffold will use its reasonable endeavours to meet any estimated dates for delivery of the goods but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
10. Delivery
10.1 Subject to clause 10.6, Mr Scaffold will arrange for the delivery of the goods to the Customer.
10.2 The Customer is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Customer for the goods provided.
10.3 Mr Scaffold may make part deliver of goods and Mr Scaffold may invoice the Customer for the goods provided.
10.4 The Customer indemnifies Mr Scaffold against any loss or damage suffered by Mr Scaffold, its sub-contractors or employees as a result of delivery, except where the Customer is a consumer and Mr Scaffold has not used due care and skill.
10.5 If delivery is attempted and is unable to be completed the Customer is deemed to have taken delivery of the goods. The Customer is liable for storage charges payable monthly on demand.
10.6 If agreed that the Customer will collect the goods;
(a) the Customer must collect the goods within 7 days of being advised they are ready;
(b) if the Customer does not collect the goods within this time, the Customer is deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand.
11. Liability
11.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or any contractual remedy for their failure.
11.2 If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against mr Scaffold for failure of a statutory guarantee under the ACL.
11.3 If the Customer on-supplies the good to consumer:
(a) if the goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276(1) of the ACL is the absolute limit of Mr Scaffolds’ liability to the Customer;
(b) if the goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then payment of any amount required under section 274 of the ACL is the absolute limit of Mr Scaffolds’ liability to the Customer;
howsoever arising under or in connection with the sale, use of, storage or any other dealings with the goods by the Customer or any third party.
11.4 If clause 11.2 or 11.3 do not apply, then other than as stated in the Terms or any written warranty statement Mr Scaffold is not liable to the Customer in any way arising under or in connection with the sale, use of, storage or any other dealings with the goods by the Customer or any third party.
11.5 Mr Scaffold is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
11.6 The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Mr Scaffold in relation to the goods or their use or application.
(b) it has not made known, either expressly or by implication, to Mr Scaffold any purpose for which it requires the goods and it has the sole responsibility of satisfying itself that the goods are suitable for the use of the Customer.
11.7 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which canot be excluded, restricted or modified.
12. Cancellation
12.1 If Mr Scaffold is unable to deliver or provide the goods, then it may cancel the Customers order (even if it has been accepted) by written notice to the Customer.
12.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on mr Scaffold once the order has been accepted.
13. Force Majeure
13.1 Mr Scaffold is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, Mr Scaffold may suspend or terminate the Agreement by written notice to the Customer.
14. Miscellaneous
14.1 The law in Victoria from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
14.2 Mr Scaffolds failure to enforce any of these Terms shall not be construed as a waiver of any of Mr Scaffolds rights.
14.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
14.4 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.