You acknowledge credit provided by Haven Kitchens by Formica is wholly and predominantly for business purposes.
To assist us with processing your application, please ensure you have the following information ready
1.1 We cannot extend credit without acquiring and using personal information.
1.2 We may collect and use your personal information for:
(a) our primary purposes, which include, but are not limited to, providing goods and services to you, obtaining your credit report, contacting your trade references, assessing your application for commercial credit, reviewing your credit terms, assessing your credit worthiness, assessing credit guarantees (current and prospective), reporting upon overdue payments, and collecting overdue payments due to us, and matters reasonably necessary in complying with your requests (together, Primary Purposes); and
(b) purposes other than our Primary Purposes.
1.3 If you sign and send to us:
(a) the Credit Agreement as a Customer; or
(b) the Deed of Guarantee and Indemnity as a Guarantor;
(c) you will be providing personal information to us; and
(d) you are accepting the terms of this Privacy Statement.
This Privacy Statement encompasses consents, notifications, and disclosures under, or in relation to, the Privacy Act 1988 (Cth) (Privacy Act).
3.1 You consent to us, to the extent permitted by law, collecting, using, and disclosing your personal information for our Primary Purposes.
3.2 You also consent to us undertaking the below enquiries and disclosures pursuant to the following sections and items of the Privacy Act:
(a) obtaining a copy of your credit report from a credit reporting body for a commercial credit related purpose (item 2 of section 20F(1));
(b) obtaining a copy of your credit report from a credit reporting body for a credit guarantee purpose (item 3 of section 20F(1));
(c) obtaining a copy of your credit report from a credit reporting body for a trade insurance purpose (item 8 of section 20F(1);
(d) disclosing credit eligibility information about you to other credit providers (section 21J(1) or 21K(1)); and
(e) disclosing credit eligibility information about you to another entity and/or its professional legal or financial advisers where the recipient proposes to use that information for the purposes described in section 21N(3) of the Privacy Act (section 21N(2).
3.3 You also consent to us collecting, using, and disclosing your personal information (including sensitive information), for purposes other than our Primary Purposes, including, but not limited to, internal management purposes, marketing (including direct marketing), and sales and business development purposes.
4.1 You consent to us, to the extent permitted by section 21D of the Privacy Act, disclosing your credit information to any or all of the following credit reporting bodies and their successors and assigns.
(a) Equifax Australia: GPO Box 94, North Sydney NSW 2059, www.equifax.com.au, 13 8332.
(b) Creditor Watch: GPO Box 276, Sydney NSW 2001, https://creditorwatch.com.au, 1300 501 312.
(c) NCI: PO Box 3315, Rundle Mall SA 5000, https://nci.com.au, 1800 882 820.
(d) Illion: PO Box 7405, St Kilda Road, Melbourne VIC 3004, https://www.illion.com.au, 13 23 33.
(e) Experian: GPO Box 1969, North Sydney NSW 2060, https://www.experian.com.au, (02) 8907 7200.
4.2 Our credit reporting policy contains a statement of notifiable matters in accordance with section 21C of the Privacy Act and items 4.1 and 4.2 of the Privacy (Credit Reporting Code) 2014 (Cth) (Credit Reporting Code).
5.1 You consent to us disclosing your personal information (including your credit information) to our subsidiaries, employees, agents, and related bodies corporate, past, present, the credit reporting bodies noted above, any trade credit bureau of which we are a member, your trade references, the related bodies corporate of the preceding entities, and overseas recipients in countries including New Zealand.
5.2 By reason of your consent to the disclosure to overseas recipients pursuant to clause 5.1 of this Privacy Statement, Australian Privacy Principle 8.1 will not apply to our dealings with your personal information.
LAMINEX GROUP PTY LIMITED
A.B.N. 98 004 093 092.
TERMS AND CONDITIONS OF SALE
By submitting a credit application and/or ordering goods or services (“Goods”) from Laminex Group Pty Ltd (ABN 98 004 093 092) (“Laminex”) (as that term is defined in the Corporations Act 2001 (Cth)), the Customer agrees that the following standard terms and conditions of sale (“Terms”) will apply.
1.1 In these Terms:
(a) “Application” means the approved Application for Credit Account and Agreement set out in Section A for purchasing Goods on credit;
(b) “Australian Consumer Law” means the Australian Consumer Law being schedule 2 in the Competition and Consumer Act 2010 (Cth);
(c) “Consumer” means a consumer as that term is defined in the Australian Consumer Law;
(d) “Consumer Contract” means a contract for the supply of goods or services to an individual whose acquisition of the goods or services is wholly or predominantly for personal, domestic or household use or consumption. However, if the relevant parts of the definition of ‘Consumer’ under the Australian Consumer Law are amended at any time, this definition is also amended accordingly.
(e) “Contract” has the meaning given to that term in clause 2;
(f) “Fletcher Group” means Fletcher Building Limited (ARBN 096 046 936) and any of its related bodies corporate (as that term is defined in the Corporations Act 2001 (Cth));
(g) “Force Majeure Event” means any event outside a party’s reasonable control including acts of Gods, declared or undeclared war, act of terrorism, fire, flood, storm, earthquake, hurricane, cyclone, epidemic, pandemic, (Covid-19), government directive, riot, power failure, industrial action, defaults of manufacturers or suppliers, the inability to obtain equipment, supplies or other facilities that are not caused by a failure to pay labour disputes, theft, any criminal act or other similar events beyond a party’s control that may prevent or delay a party from performing their obligations under any Contract provided that lack of funds for whatever reasons is not considered a Force Majeure Event;
(h) “Intellectual Property Rights” means all intellectual property rights throughout the world, whether present or future, including rights in relation to copyright, trade secrets, know how, trade marks (whether registered or unregistered or whether in word or logo/device form), designs, patents and patentable inventions, including the right to apply for registration of any such rights.
(i) "Law" means any Commonwealth or Australian state or territory legislation regulations and the general law and includes in particular the Competition and Consumer Act 2010 (Cth) and regulations as amended from time to time and the PPSA and regulations as amended from time to time.
(j) “Personal Information” has the meaning given in the Privacy Act 1988 (Cth);
(k) “PPSA” means the Personal Property Securities Act 2009 (Cth).
(l) "Purchase Monies Securities Interest" or "PMSl" has the meaning given in section 14 of the PPSA as amended from time to time.
(m) “Special Conditions” means any special conditions issued by the Supplier from time to time that may apply to a particular transaction including but not limited to the Special Conditions for Haven Kitchens by Formica™
(n) “Small Business Contract” has the meaning given in Australian Consumer Law are amended at any time, this definition is also amended accordingly;
(o) “we”, “us”, “our” or “the Supplier” means Laminex Group Pty Limited (ABN 98 004 093 092) trading as The Laminex Group and any member of the Fletcher Group that is named as the party making or accepting an order;
(p) “you”, “your” or “the Customer” means the person stated in the Application or order and any other person(s) acting on your behalf.
2.1 The contract between you and the Supplier is constituted by:
(a) these Terms;
(b) the Application;
(c) any Special Conditions; and
(d) the extent to which the Supplier accepts an order in accordance with clause 3.4,
(e) (each a “Contract”).
The Terms, the Application, the Special Conditions and the extent to which the Supplier accepts the order govern all contracts for the supply of Goods by the Supplier to you and constitute the entire agreement in connection with the supply of Goods between you and the Supplier. To the extent of any inconsistency, the order of precedence set out in clauses 2.1(a) to 2.1(d) applies. All prior representations, trade custom or previous dealings between you and the Supplier are excluded and are not applicable in the interpretation of the Contract. No modification or variation to the Terms or the Application, any additional terms or conditions or any terms inconsistent with the Terms or the Application provided by you (whether put forward in the order, your specification or otherwise) will bind the Supplier, unless expressly and specifically agreed to in writing by the Supplier. The Terms and the Application supersede any terms and conditions which have previously governed a contract for the sale of Goods between you and the Supplier. The Terms and Application will prevail to the extent of any inconsistency between them and any quotation, order or other documents from you. The Terms and Application bind you even if you or the Supplier do not sign them promptly or at all.
2.2 You will purchase and we will supply Goods to you on the terms of each Contract.
2.3 We may at any time, and from time to time, alter these Terms, the Application and/or Special Conditions by notice in writing to you. If the Contract is a Consumer Contract or a Small Business Contract, then you may consider the variation and, if not acceptable, may elect not to proceed with the purchase of Goods ordered before the date of the variation, but which are intended to be subject to the variation. If the Contract is not a Consumer Contract or a Small Business Contract, you agree that Goods delivered and/or ordered after the date of a notice of variation will be subject to the variation and acceptance of the Goods or the placing of the order will be deemed to be an acceptance of such varied terms and conditions.
3. QUOTATIONS AND ORDERS
3.1 Any quotation or price list given by us to you does not constitute an offer to sell goods to you. We reserve the right to alter the quote or price list without notice to you, however such changes will not affect prices which are part of already accepted orders unless agreed.
3.2 Any quotation or price list provided by us to you applies strictly to Goods ordered and delivered to a location within the same State as your address and to which the quotation or price list applies.
3.3 A quotation by the Supplier is an estimate only and will not constitute an offer to sell Goods to the Customer. No contract for the supply of Goods will exist between the Supplier and the Customer until a Customer's order has been accepted by the Supplier (such acceptance of the Customer's orders may be made and communicated by the Supplier in writing including an order acknowledgment or by overt act of acceptance). If only part of an Order is accepted, the Supplier will notify the Customer of this. The Customer is deemed to have agreed to only part of the order being accepted unless written notice is received by the Supplier that the Customer wishes to cancel the whole order within 5 days of the date of issue of the Supplier’s notice. The Customer will be under no obligation to place an order with the Supplier. The Supplier reserves the right to accept or refuse any order for goods or services in its absolute discretion and may make its acceptance of an order conditional upon the earlier of it receiving a satisfactory credit assessment of the Customer or payment in full as contemplated under clause 5.1.
3.4 By placing an order with us, you are making a binding irrevocable offer to purchase those Goods.
3.5 We reserve the right to modify the design of Goods and cease to manufacture or supply Goods without notice. If the Contract is a Consumer Contract or a Small Business Contract and we modify the design of Goods after we have accepted your order for those Goods:
(a) we will give you notice of the modification in writing; and
(b) you may consider the modification and, if not acceptable, may elect not to proceed with the purchase of Goods ordered before the date of the notice, but which are intended to be subject to the modification.
3.6 The Customer warrants that all drawings, measurements, specifications and other design information provided to the Supplier are accurate and correct in all respects, comply with any relevant codes, Australian Standards and Laws, and do not infringe upon the Intellectual Property Rights of any party including any copyright, patents, designs or trademarks of a third party.
4. PRICES, GST, FREIGHT AND INSURANCE
4.1 Unless otherwise expressly agreed in writing, the price of the Goods will be the price specified in our invoice plus the amount which we are required to pay on account of any charges which may be levied by any government authority (domestic or foreign) plus any amount that reflects any increase in exchange rates, costs of labour, materials and overheads. If the Contract is a Consumer Contract or a Small Business Contract, then you may consider any alterations to the price referred to in this clause or clause 3.2, prior to the date of dispatch of Goods or the performance of services and, if not acceptable, may elect not to proceed with the purchase of Goods ordered before the date of the alteration, but which are intended to be subject to the alteration by providing written notice to us.
4.2 The price is exclusive of any freight charges, packing charges, customs duty and GST or similar taxes, which the Customer will pay in addition to the price at the same time and in the same manner as the price.
4.3 You are responsible for all freight costs. If you nominate a carrier, this must be advised to us in writing in the absence of which we will choose a carrier.
4.4 Unless otherwise expressly stated, all amounts stated to be payable by you under any Contract are exclusive of GST.
4.5 If GST is imposed on any supply made under or in accordance with any Contract, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with the Contract subject to the provision of a tax invoice.
4.6 In this clause the expressions "GST, "tax invoice", "recipient" and "taxable supply" have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.
5.1 You agree that until we confirm that a credit facility has been granted to you, all Goods are supplied on a cash before delivery basis.
5.2 Unless otherwise agreed, all amounts owing to the Supplier for Goods supplied to you via a trading account are due and payable 30 days of the end of month in which Goods are delivered or collected.
5.3 You may pay by Visa or MasterCard or American Express. However, a payment surcharge is payable by the Customer if accounts are paid using Visa, Mastercard or American Express credit accounts or accounts using contactless payments (ie: PayWave, PayPass). The payment surcharge is a percentage of the amount being paid and varies depending on the payment method used. The current surcharge rate will be notified by us from time to time. As at the date of these Terms, the surcharge rate is, 1.25% for Visa or Mastercard and 2.97% - American Express. The surcharge is payable at the same time as the account to which it relates is due.
5.4 You agree that if you fail to pay in accordance with this clause 5, without prejudice to any of our rights, we may:
(a) charge interest on debts at four percent (4%) above the rate prescribed pursuant to the Penalty Interest Rates Act (Vic) 1983 from time to time;
(b) charge a dishonour handling fee at the rate advised by us from time to time where we are unable to obtain payment from your credit card provider or a cheque is not paid by your bank;
(c) withhold supply; and
(d) sue for the money owing on the Goods.
5.5 The late payment fee and any interest will be charged daily from the due date for payment until the actual date of payment and will be payable together with the overdue amount. The parties agree that the fees and interest charged pursuant to clause 5.4 are a genuine pre-estimate of the loss that will be suffered by the Supplier for late payment.
5.6 Any forbearance by us in charging any of the fees set out in clause 5 does not constitute a waiver of our right to do so in the future.
5.7 The Customer must pay for its own legal, accounting and business costs and all of the Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Customer, including dishonoured cheque fees, collection costs, debt recovery fees and legal costs on an indemnity basis. The Customer must also pay for all stamp duty and other taxes payable in connection with any Contract and credit agreement (if any).
5.8 Any payments by, or on behalf of, the Customer will be applied by the Supplier as follows.
(a) firstly, in payment of any and all collection costs and legal costs in accordance with clause 5;
(b) secondly, in payment of any interest incurred in accordance this Contract;
(c) thirdly, in payment of the outstanding invoice(s), or part thereof in an order determined by the Supplier in its absolute discretion.
6.1 The Customer acknowledges and accepts that any period or date for delivery stated by the Supplier is intended as an estimate only and is not a contractual commitment. The Supplier will not in any circumstances be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated delivery of Goods or performance of services provided such Goods or services are delivered and performed (as appliable) within a reasonable time.
6.2 Provided delivery is made within a reasonable time, the Customer will not be relieved of any obligation to accept or pay for Goods or services by reason of any delay in delivery or performance.
6.3 Goods will be delivered or deemed to delivered upon the earlier of when the Goods are delivered to the delivery place nominated by the Customer or the Goods are collected by the Customer or its agent from the Supplier's premises. If no such address is nominated or the Customer fails to collect the Goods then delivery will be deemed to occur at the time when the Goods are ready for collection at the Supplier's premises.
6.4 The Customer will pay to the Supplier packing (other than the standard packing of the Supplier), crating and delivery charges in accordance with the Supplier's current rates, as at the date of dispatch. If there is no current rate then the Supplier may charge a reasonable amount to the Customer. The Supplier may charge a reasonable amount for storage if delivery instructions are not provided by the Customer within 14 days of a request by the Supplier for such information. If we do not receive delivery instructions sufficient to enable us to dispatch the Goods within fourteen (14) days of you being notified that the Goods are ready for delivery, you will, from the fifteenth day after notification:
(a) the terms of payment will apply; and
(b) assume risk in the Goods, except to the extent of any wilful destruction or negligence by the Supplier.
6.5 The Customer authorises the Supplier to deliver Goods to the place nominated by the Customer and to leave the Goods at such place whether or not any person is present to accept delivery. Subject to the other terms of the Contract, the Supplier will not be liable on any basis whatsoever for loss suffered by the Customer after delivery.
6.6 The Supplier will not be obliged to obtain a signed receipt or other acknowledgment from any person at the nominated place for delivery but if a signed receipt or other acknowledgment is obtained from someone believed by the Supplier to be authorised by the Customer to sign or otherwise take delivery, then such signed receipt or other acknowledgment will be conclusive evidence of the Customer's acceptance of the Goods delivered.
6.7 The Supplier reserves the right to deliver Goods by instalments and each instalment will be deemed to be sold under a separate Contract. Subject to clause 6.2, failure to deliver any instalment or deliver any instalment on time will not entitle the Customer to repudiate the Contract in whole or in part.
6.8 The Customer must make all arrangements necessary to take delivery of the Goods when they are tendered for delivery. Where a Customer proposes to delay delivery of Goods beyond the estimated delivery date, the Customer must immediately notify the Supplier. The Supplier is under no obligation to agree to any extension of the estimated delivery date. The Supplier may, as a condition of its approval to the new delivery date, vary the prices specified on the Supplier’s quotation or invoice (as relevant) to include any additional costs to the Supplier for such delay including to reflect the Supplier’s current prices and charges as at the new delivery date and any temporary storage fees.
6.9 Containers (which includes but is not limited to stillages, formers and pallets) in or on which Goods are delivered and for which a deposit charge is made, remain our property. Upon the containers’ return in good order (subject to fair wear and tear and any damage caused prior to delivery) the deposit will be returned to you. We reserve the right to deduct moneys from your deposit to compensate us for any damage to the container(s) after delivery.
7. CLAIMS AND LIABILITIES
7.1 Any claim by you as to breach of Contract including any failure to comply with the Customer's order whether due to shortfall, defect, incorrect delivery or otherwise must be made to us in writing within seven (7) days of delivery, for which time is of the essence, except in the case of a claim involving a Consumer or Small Business Contract alleging a breach of the guarantees under the Australian Consumer Law.
7.2 If you do not notify us of any claim within seven (7) days of delivery in accordance with clause 7.1, the Goods are deemed accepted by you in compliance with the terms of the Contract.
7.3 If you are a Consumer, the provisions of this clause 7.3 apply:
(a) Subject to clause 7.3(e), unless agreed in writing by the Supplier, the Supplier will not accept the return of Goods. Goods accepted for return by the Supplier may attract a charge to recover restocking and repackaging charges. The amount of this charge will be determined by the Supplier and either debited from your credit account or payable on a cash before return delivery basis.
(b) Your proof of purchase must accompany all Goods returned to the Supplier.
(c) The Goods and services 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 to compensation for any other reasonably foreseeable loss or damage in accordance with the Australian Consumer Law. You are 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. You are also entitled to have services re- supplied or be paid for the cost of having the services re-supplied if the services do not comply with the guarantees.
(d) The guarantees under the Australian Consumer Law are given by the Supplier.
(e) If you believe the Goods or services do not comply with the statutory guarantees, you must contact the Supplier and the parties may make arrangements for the return of the Goods. Any returned Goods must be accompanied by proof of purchase. If the Supplier agrees that the Goods do not comply with the statutory guarantee, the Supplier will refund the costs of returning the Goods to the Supplier and, in all other respects, act in accordance with its obligations under the Australian Consumer Law.
(f) Subject to clause 7.3(f), all other terms, representations, warranties, guarantees and conditions that might otherwise be granted or implied by law are expressly excluded to the maximum extent permitted by law, unless agreed by the Supplier in writing. The Supplier does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified except to a limited extent, as between you and the Supplier by Law.
7.4 If you are not a Consumer, the provisions of this clause 7.4 apply:
(a) All terms, representations, warranties and conditions that might otherwise be granted or implied by law are expressly excluded to the maximum extent permitted by law, unless the Supplier agrees in writing. The Supplier does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified except to a limited extent, as between you and the Supplier by Law.
(b) The Supplier's liability for breach of a non-excludable condition or warranty is limited at the Supplier's option, to any one of the following:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of providing replacement Goods or of acquiring equivalent Goods;
(iv) the payment of the cost of having the Goods repaired, or
(v) in the case of services, the re-supply of the services or paying for the cost of re-supplying the services.
(c) Subject to the other terms of the Contract (including clause 7.4(b)) and to the extent permitted by Law, if the Contract is not a Consumer Contract or a Small Business Contract, the Supplier will not be liable to the Customer or any other person for any loss, cost, damage or expense whatsoever arising directly or indirectly as a result of or in connection with any Contract, including but not limited to loss, costs, damages or expenses arising directly or indirectly from the supply of the Goods or services by the Supplier, the use or performance of the Goods, a breach of any Contract (including any implied warranty, representation, term or condition in relation to the Goods), any failure to install the Goods in accordance with their applicable installation instructions and manuals provided with the Goods or to operate the Goods in accordance with their operation instructions and manuals provided with the Goods or the negligence or wilful act of the Supplier (including its employees or agents), the Customer or any third party, including in relation to the installation of the Goods.
7.5 Without limiting clause 7.6, if the Contract is not a Consumer Contract or Small Business Contract, you indemnify the Supplier for any loss, cost, damage or expense suffered by the Supplier arising from or in connection with:
(a) negligence by you or persons under your control;
(b) any breach of Law by you or persons under your control;
(c) any breach of third-party Intellectual Property Rights; or
(d) the death or injury to any person or damage to any property arising from the performance or non-performance by you of your obligations under any Contract.
7.6 If you default in the performance or observance of Your obligations under any Contract of which these Terms form part, then:
(a) we will give you notice requesting of such default and request that you remedy any breach within the time stipulated in these Terms or, if no time is stipulated, a reasonable time; and
(b) if that demand is not met then you indemnify us in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that we have suffered arising therefrom.
7.7 Your liability to indemnify us under a provision of the Contract (including these Terms and any Special Conditions) will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or a breach of our obligations under Contract or our breach of law has contributed to the claim, loss, damage, or cost which is the subject of the indemnity.
7.8 Each indemnity in a Contract is a continuing obligation separate and independent from Your other obligations and survives the termination or performance of any contract of which these Terms form part.
7.9 For each indemnity in a Contract, we will take steps to mitigate our loss and damage and act reasonably in relation to Your applicable default.
7.10 Without limiting clauses 7.5 and 7.6, You indemnify Us for any loss, cost, damage or expense suffered by Us arising from any failure to install the Goods in accordance with their applicable code, Australian Standard, Law, installation instructions and manuals provided with the Goods or to operate the Goods in accordance with their applicable operation instructions and manuals provided with the Goods or in connection with your negligence or the negligence of any third party, including in relation to the installation or operation of the Good.
7.11 We will not be responsible for non-delivery or delay in delivery of any Goods due to Force Majeure. Where such non-delivery or delay occurs, we may deliver the Goods not delivered or delayed within a reasonable time after the event of Force Majeure has ceased and, subject to clause 13.2, you must accept and pay for them.
7.12 To the extent permitted by Law, the Supplier is not liable to you or any other person:
(a) for any loss, cost, damage or expense to the extent that it is for indirect, special, economic or consequential loss, where consequential loss means any loss, cost, damage or expense beyond the normal measure and beyond that which every plaintiff in a like situation would suffer; and
(b) for any loss of revenue, business or profits or any nature whatsoever, loss of expected savings, loss of chance or business opportunity, business interruption, loss or reduction of goodwill or damage to reputation or any loss of value of intellectual property.
8. RETURNED GOODS
8.1 You may only return Goods with the prior written approval of the Supplier. Goods accepted for return by the Supplier must be returned within 14 days from the date of delivery in an unsoiled, undamaged and resalable condition and, where appropriate, in the original packaging. You may be charged handling fee for any returned Goods. The amount of this charge will be determined by the Supplier and debited to your credit account.
8.2 Your proof of purchase must accompany all Goods returned to the Supplier.
8.3 Where Goods are returned to us, credit will only be issued subject to the following conditions set out in clauses 8.4 to 8.9:
8.4 RETURN AUTHORISATION:
(a) A Goods Return Credit (“GRC”) authority number must be obtained from the supply point prior to the return of any Goods. We may refuse to give a GRC authority or accept the return of any Goods.
(b) You must provide the invoice number and date of purchase before a GRC will be issued.
(c) The GRC authority number must be clearly marked on the packaging of Goods returned to us. Failure to comply with this requirement could result in our refusing to accept delivery of the returned Goods.
All claims for credit must be supported by:
(a) carrier’s consignment note or similar receipt of delivery;
(b) our relevant invoice number; and
(c) the GRC number issued by us.
8.6 UNACCEPTABLE RETURNS:
Without in any way limiting our discretion to refuse to accept the return of any Goods, the following Goods will not be returnable:
(a) any Goods that have been held by you or your agent for more than seven (7) days; or
(b) any Goods which are not in original condition; or
(c) any Goods that are manufactured as made to order (“mto”) items unless faulty. Any manufacturing surcharge is non refundable.
8.7 FAULTY GOODS:
If you are not a Consumer, we will only recognise claims for faulty Goods that are lodged within seven (7) days of you receiving the Goods.
Goods must be returned by the carrier specified by us.
8.9 RESTOCKING / REPACKAGING FEE
You agree to pay us a restocking and/or repackaging fee at the rate advised by us from time to time.
9. OWNERSHIP & RISK
(a) The risk of loss or damage to the Goods passes to you on the earlier of the date and at the time that the Goods are delivered (or deemed delivered) to you or at the date and time the Goods are collected from the Supplier’s warehouse.
(b) Ownership of any Goods supplied by us will not pass to you until all amounts owing by you to us under the Contract have been received by us.
(c) Until ownership passes to you, the Goods supplied are held by you for us as bailee and, if required, you will store the Goods so that it is clear they belong to us.
(d) If you wish to resell any Goods before ownership passes,:
(i) you may do so only by way of bona fide sale in the ordinary course of business and as our agent, but you must not represent to any other person that you are acting for, or have any authority to bind, us. The installation or resale of the Goods does not relieve the Customer of its obligations to pay.
(ii) You will hold the proceeds of sale on trust for us and you must account to us for the proceeds of any sale of the Goods.
(e) The Customer will insure the Goods for their full replacement value against loss, theft or damage until such time as the Customer has paid for the Goods in full or until the Goods are installed or sold by the Customer whichever occurs first and the Supplier will be entitled to call for details of the insurance policy.
10. PERSONAL PROPERTY SECURITIES ACT 2009
(a) You acknowledge that by assenting to the terms of the Contract, the Customer grants a security interest to the Supplier in all Goods (and their proceeds) supplied now or in the future by the Supplier to the Customer (or to its account) and a security interest in the personal property of the Customer.
(b) The Customer undertakes to execute all documents, provide any information or do anything else the Supplier requests, to ensure that any security interest created in the Supplier’s favour by these Terms is, to the fullest extent possible under the PPSA, perfected in accordance with Part 2.2 of the PPSA.
(c) Unless the Customer has obtained the Supplier’s prior written consent, the Customer undertakes not to:
(i) register a financing change statement in respect of a security interest contemplated or constituted by these Terms; nor
(ii) create or purport to create any security interest in the Goods, nor 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.
(d) To the extent permitted by Law, you waive your rights under the following provisions of Part 4 of the PPSA:
(i) to receive a notice of intention of removal of an accession (section 95);
(ii) to receive a notice that we decide to enforce our security interest in accordance with land law (section 118);
(iii) to receive a notice of enforcement action against liquid assets (section 121(4));
(iv) our obligation to dispose of or retain collateral (section 125);
(v) to receive a notice of disposal of goods by us purchasing the Goods (section 129);
(vi) to receive a notice to dispose of Goods (section 130);
(vii) to receive a statement of account following disposal of Goods (section 132(2));
(viii) to receive a statement of account if no disposal of Goods for each 6-month period (section 132(4));
(ix) to receive notice of any proposal of ours to retain Goods (section 135(2));
(x) to object to any proposal of ours to either retain or dispose of Goods (section 137(2));
(xi) to redeem the Goods (section 142);
(xii) to reinstate the security agreement (section 143);
(xiii) to receive a notice of any verification statement (section 157(1) and section 157(3)).
(e) You further agree that where we have rights in addition to those under Part 4 of the PPSA, those rights will continue to apply.
(f) Until ownership of the Goods passes, you must not give to us a written demand or allow any other person to give us a written demand requiring us to register a financing change statement under the PPSA or enter into or allow any other person to enter into the register of personal property securities a financing change statement under the PPSA.
(g) You acknowledge that you have received value as at the date of first delivery of the Goods and have not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to us under the Terms.
(h) The Customer will, upon demand, pay all of the Supplier's expenses and legal costs (on a solicitor/agent/client basis) in relation to or in connection with the registration of the Supplier's security interests and all other costs associated with protection and enforcement of the Supplier's security interests created by the Terms or by undertaking an audit under the provisions of the PPSA and which the Supplier considers are reasonably necessary in order to protect its legitimate interests under the Contract.
(i) For the avoidance of doubt, the Supplier’s interest constitutes a PMSI pursuant to the PPSA.
(j) This PMSl does not lose its priority as a result of the renewal, refinance, consolidation or restructure of the subject matter of the Terms and any purchase money obligations.
(k) The Customer's right to possession of Goods still owned by the Supplier under the Terms will cease if:
(i) where the Customer is an individual, the Customer commits an act of bankruptcy;
(ii) where the Customer is a company, circumstances arise where a receiver, manager, administrator or controller becomes entitled to take possession of any of the Customer’s assets, any proceedings are instituted for winding-up of the Customer or the Customer enters into a Deed of Company Arrangement;
(iii) the Customer ceases or threatens to cease conducting business in the normal manner or applies for deregistration or receives a deregistration notice;
(iv) any cheque the Customer provides to the Supplier or any Fletcher Group Member is dishonored for payment;
(v) the Customer fails to comply with any demand for payment issued by the Supplier or any Fletcher Group Member for an amount which is overdue under the Contract; or
(vi) the Customer materially breaches any term of the Contract or any other agreement between the Supplier or any other Fletcher Group Member and the Customer.
(l) The Customer expressly and irrevocably agrees that, until such time as title in the Goods passes to the Customer, the Supplier may require the Customer to return the Goods to it on demand and is entitled to enter any premises where the Goods supplied by the Supplier are located and repossess, remove and sell such Goods if any event set out in clause 10(k) occurs or we have cause to exercise any of our rights under sections 123 and/or 128 of the PPSA. The Customer (its successors and assigns, including any external manager or administrator) will not object to the Supplier, or its agents entering any premises for the purpose of this clause and agrees to indemnify and keep the Supplier indemnified in respect of any claims, actions and costs that may arise against the Supplier in relation to the removal, repossession and sale of the Goods pursuant to the Terms including any claims brought by third parties, except to the extent that the Supplier has been negligent or breached the Law or the Contract. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Customer against the Supplier, its employees, servants or agents.
(m) The Customer agrees that where the Goods have been retaken into the possession of the Supplier, the Supplier has the absolute right to sell or deal with the Goods, and if necessary, sell the Goods with the trademark or name of the Customer which is already attached to those Goods, and the Customer hereby grants an irrevocable licence to the Supplier to do all things necessary to sell the Goods bearing the name or trademark of the Customer.
(n) The Customer agrees that repossession and retention of the Goods pursuant to the PPSA will only satisfy so much of the monies which may become payable to the Supplier by the Customer as is equivalent to the Supplier's estimation of the market value of the Goods as it is at the date of repossession and the repossession and retention will immediately extinguish any rights for interest the Supplier has on the value of the Goods recovered.
11. SET OFF
11.1 You agree that:
(a) we may set-off any credit amount that we owe to you against any debit due by you to us under the Contract; and
(b) you are not entitled to withhold payment of any money in respect of any set-off or claim you might have against us.
12.FITNESS FOR PURPOSE
(a) the Customer is not a Consumer; and
(b) the Contract is not a Consumer Contract or a Small Business Contract,
then the Customer agrees that:
(i) it does not rely on the skill or judgment of the Supplier in relation to the suitability of any Goods or services for a particular purpose; and
(ii) any advice, recommendation, information or assistance provided by the Supplier is provided without any liability by the Supplier whatsoever.
(a) the Customer is a Consumer; or
(b) the Contract is a Consumer Contract or a Small Business Contract,
then the Customer acknowledges and agrees that:
(i) it must install the Goods in accordance with their applicable codes, Australian Standards, Laws, installation instructions and manuals provided with the Goods or to operate the Goods in accordance with their applicable operation instructions and manuals provided with the Goods; and
(ii) any advice, recommendation, information or assistance provided by the Supplier is provided in good faith, and is not relying upon the accuracy and completeness of information provided by Customer to Supplier.
13. ACTS OF DEFAULT
(a) you fail to pay for any Goods on the due date and such payment is not made within 5 days of the due date, or the Supplier has reasonable grounds to believe that you may not be able to make payment to the Supplier of any monies which are due and payable by you under the Contract; or
(b) you exceed your credit limit at any time and have failed to rectify this within 5 days of the date of such exceedance;
(c) subject to paragraphs (a) and (b), you otherwise breach any warranty, undertaking or a material term of the Contract with us or any other agreement between you and the Supplier or another member of the Fletcher Group; or
(d) you cancel the delivery in breach of the Contract or fail to take delivery of any Goods; or
(e) you commit an act of bankruptcy; or
(f) you allow a trustee in bankruptcy, receiver or receiver and manager to be appointed to you or any of your personal property; or
(g) you allow distress to be levied or a judgment, order or security to be enforced, or to become enforceable against your property including under the PPSA; or
(h) you are a company and:
(i) proceedings are commenced to wind you up or any of your subsidiaries; or
(ii) a controller, receiver, administrator, liquidator or similar officer is appointed to you or in respect of any part of your property; or
(i) contractual performance by either you or the Supplier is delayed or prevented due to a Force Majeure Event,
then the Supplier and any member of the Fletcher Group may, without prejudice to any other rights they may have, do any or all of the following:
(j) all monies payable by you to the Supplier may, at the Supplier’s election, become immediately due and payable, notwithstanding that the due date for payment may not have expired;
(k) vary, suspend or withdraw any credit facilities that may have been extended to you;
(l) immediately terminate or suspend the whole or any outstanding part of any Contract;
(m) withhold the delivery of further Goods;
(n) enter upon your premises (doing all that is necessary to gain access) where Goods supplied under any Contract are situated at any time and retake possession of any or all of the Goods we have supplied to you in which title has not passed to you and we reserve the right to resell the Goods concerned;
(o) recover from you the cost incurred by the Supplier for materials or goods acquired for the purpose of future deliveries of Goods to you which the Supplier will not otherwise be able to recover from refunds or future sales to other customers;
(p) exercise such rights as are afforded to the Supplier under the PPSA; and
(q) register a default with any credit reference facility.
13.2 If the Contract is a Small Business Contract and:
(a) an administrator, liquidator or provisional liquidator or external manager is appointed in respect of the Supplier; or
(b) a receiver, receiver and manager, administrator or controller is appointed in respect of any assets or group of assets of the Supplier; or
(c) the Supplier is wound up; or
(d) the Supplier becomes, admits in writing that it is, or is declared by a court to be unable to pay its debts as and when they fall due; or
(e) there is a breach by the Supplier of a material term of any Contract or agreement with you; or
(f) contractual performance by either you or the Supplier is delayed or prevented due to any Force Majeure Event,
then you may, without prejudice to any other rights you may have, terminate or suspend the whole or any outstanding part of the Contract.
14.1 If we conduct a re-sale pursuant to clause 13.1(n):
(a) we may do so at our premises or place; and
(b) the re-sale may, at our discretion, be by public or private sale; and
(c) we may recover from you as liquidated damages for our loss of bargain, the difference between the re-sale price and the unpaid price (together with any incidental damages, such as holding expenses and charges but less expenses saved as a result of your breach).
15. GOVERNING LAW
Each Contract is governed by the laws of Victoria. You and the Supplier irrevocably submit to the exclusive jurisdiction of the Victorian courts and federal courts sitting in Victoria.
Should any part of any Contract be held to be void or unlawful, the Contract will be read and enforced as if the void or unlawful provisions have been deleted.
17.1 You agree to comply with the Anti-Corruption Law and must not commit any act or omission which causes or would cause you or the Supplier to breach, or commit an offence under, any Anti- Corruption Laws.
17.2 You warrant and represent that you have not been convicted of any offence, and have not been the subject of any investigation or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence under Anti-Corruption Laws.
17.3 You must, to the extent permitted by law, promptly notify the Supplier in writing if you become aware at any time during the term of any Contract, that any of the representations or warranties in clause 17.2 are, or might reasonably be expected to be, no longer correct.
17.4 For the purpose of clause 17, “Anti-Corruption Law” means any law prohibiting or relating to bribery, corruption, kickbacks, secret commissions or money laundering, including without limitation, the Foreign Corrupt Practices Act 1977(US), the Bribery Act 2010 (UK), the Criminal Code Act 1995 (Cth) and any anti-corruption regulations and provisions applicable in the European Union or in any other locations in which any member of the Fletcher Group carries on business.
18.1 You acknowledge and agree that the Supplier may collect Personal Information and credit information about you and your directors, officers, partners and the Guarantors (as defined in the Application) (each a “Relevant Party”).
18.5 You warrant to the Supplier that you have obtained the consent of each of the Relevant Parties to the collection, use and disclosure of their Personal Information and credit information by the Supplier in accordance with this clause 18 and the Supplier’s Policies.
19.1 Either party may waive any of its rights or remedies under the Contract at any time and will notify the other party in writing of any waiver.
19.2 The failure by a party to exercise a right or remedy, or any delay by a party in exercising a right or remedy, or the exercise by a party of only part of a right or remedy, or the granting of any indulgence by a party in favour of the other party does not:
(a) affect the party's rights against the other party;
(b) constitute a waiver of any term or condition; or
(c) prohibit the party from exercising that right or remedy in relation to that breach or any other breach.
19.3 A waiver of a breach of a term or condition does not constitute a waiver of another breach of the same term or any other term.
19.4 The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded.
20. ENGINEERED STONE LICENCE
20.1 If you are based in the state of Victoria, the provisions of this clause 20.1 apply:
(a) You warrant that you hold a valid Engineered Stone Licence (“Licence”) as required under the Occupational Health and Safety Act 2004 (Vic) and the Occupational Health and Safety Regulations 2017 (Vic) (“ESL Laws”) and that you will continue to hold a Licence at any time we supply the Goods to you.
(b) You warrant each time you place an order with us that the Licence has not expired or otherwise been revoked, suspended or cancelled, and that all required details
(c) under the ESL Laws of the Licence have been provided to us and that those details are true and correct to the best of your knowledge.
(d) If the Licence has expired or otherwise been revoked, suspended or cancelled or you no longer hold a Licence for any other reason on or before the date of supply of Goods, you must notify us immediately.
(e) If you have applied for a Licence before 15 November 2022, and the application for the Licence has not yet been granted or refused by WorkSafe Victoria, you must notify us immediately after you are notified of any decision by WorkSafe Victoria to grant or refuse that Licence application.
(f) If you have advised us that you will not be carrying out an Engineered Stone Process (as defined under ESL Laws) on the Goods, you warrant that you will not do so and agree that you will ensure when you supply the Goods to another party that they hold a valid Licence, if required under ESL Laws.
By requesting the Ancillary Services, requesting a quote, or placing an order for one or more products or services from Haven Kitchens by Formica™, the Customer agrees that the following Special Conditions will apply.
These Special Conditions are to be read with our standard terms and conditions of sale which can be viewed at https://www.havenkitchens.com.au/t-and-cs/special-conditions (Terms). Our Terms are incorporated to the express exclusion of any current or future terms and conditions offered by the Customer. These Conditions prevail to the extent of any inconsistency.
1.1 In these Special Conditions (“Special Conditions”):
(a) Accessories mean the accessories selected by the Customer (if any) and included in the Design Documents. The Accessories are not manufactured by the Supplier;
(b) Appliances mean the appliances selected by the Customer (if any) and included in the Design Documents. The Appliances are not manufactured by the Supplier;
(c) Ancillary Services mean the activities described in clause 5.3;
(d) Background IP means all intellectual property rights held by a party prior to prior to the date of the Contract, or developed by a party independently of this Contract;
(e) Check Measure means checking the Customer’s measurements of the Site to reduce errors and minimise wastage;
(f) Customer Supplied Items means any products, accessories, appliances or other materials supplied by the Customer to be incorporated into or with the Works;
(g) Domestic Builder means a building practitioner as defined under the Building Act 1993 (VIC) who is required to be registered with the Victorian Building Association to oversee or carry out the Works;
(h) Design Documents means all design documentation (including any design brief, drawings, layout, schedules, specifications, calculations, renders, reports, Site inspection details) in electronic and written form relating to the Goods supplied and/or verified by the Customer including any information created, amended, improved, modified from time to time by the Supplier or its subcontractors for the Goods in accordance with the terms of this Contract (including any Ancillary Services);
(i) Goods means the goods including the Products, Appliances, and Accessories supplied by us from time to time;
(j) Products means the products selected by the Customer (if any) and included in the Design Documents. The Products are not manufactured by the Supplier;
(k) Referral Program means the trade / installer program in which each participating Customer is required to verify that they have, hold and will maintain any required licence and/or registration to perform the Works;
(l) Site means where the Customer will perform the Works;
(m) Specification means the documents, drawings and Design Documents, supplied and/or verified by the Customer;
(n) Standards mean all applicable standards published by Australian Standards setting out specifications and procedures designed to ensure products, services and systems are safe, reliable and consistently perform the way they are intended to;
(o) Works means and includes all works and services necessary for the measuring, design, assembly, fabrication, installation, testing and commissioning of the Goods on Site by the Customer.
2. CUSTOMER WARRANTY
2.1 By requesting the Ancillary Services, requesting a quote or placing an order with the Supplier for our Haven Kitchens by Formica™ range, the Customer warrants and undertakes to the Supplier that the Customer:
(a) has, holds and will maintain at all relevant times all consents, approvals, permits, registration and licences which are required by Law or are otherwise necessary for the design, assembly, fabrication and installation of the Goods and related services for your client, including registration as Domestic Builder of the relevant class to oversee or carry out the Works (if required);
(b) assumes all responsibility for the Specification, design (including the Design Documents), assembly, fabrication, installation and commissioning of the Goods;
(c) has read and understood the Haven Kitchen by Formica™ product literature including the installation manual, care and maintenance and warranties;
(d) has all relevant expertise to oversee and/or perform the Works and services for its client(s);
(e) is not the owner of the site on which the Works will be performed;
(f) intend to on-sell the Goods to its client(s);
(g) will certify each stage of the Works as meeting all applicable Standards, codes, and Laws;
(h) is not relying on the Supplier’s due care and skill in respect of any free Ancillary Services provided by the Supplier other than to supply the Goods in accordance with its order;
(i) has, holds and maintain all insurances that may be required in performing the Works for its client;
(j) has the necessary resources (including financial resources) sufficient to enable it to perform the Works;
(k) will ensure that any Intellectual Property Rights or other proprietary rights of any other person will not be infringed by the Suppliers use of (or reliance on) the Design Documents to manufacture and supply of the Goods; and
by supplying Goods in accordance with its order (including the Design Documents), the Goods will be:
(l) free from defects in design;
(m) fit for sale to its client and fit for any purpose held out by its client or made known to the Customer prior to the Customer placing your order.
2.2 In relation to the Works, the Customer warrants and undertakes that:
(a) the Customer will perform and commission the Works:
(i) in a proper and safe manner, with the degree of professional expertise, skill, care and diligence that can reasonably be expected of a professional service provider experienced in providing services in the nature of the Works;
(ii) in a timely and expeditious manner;
(iii) in accordance with best industry practice;
(iv) in a manner that ensures that when complete, the Works:
(A) are fit for purpose including any purpose held out by your client or made known to the Customer prior to the Customer placing your order;
(B) are in accordance with the Design Documents (including your clients design brief); and
(C) meet all applicable codes, Standards and Laws;
(b) it will, at its cost, make good any errors, defects or omissions in the Works (other than manufacturing defects in the Goods);
(c) where the Customer sell the Goods to a Consumer, the Customer will be liable for all claims, costs, losses or damages that a consumer may claim under the Australian Consumer Law in respect of the Works (other than manufacturing defects in the Goods);
(d) it will manage all warranty claims made by its client in respect of the Works and advise the Supplier of any claim within 3 business days of receipt.
2.3 No limitation: The warranties provided in clauses 2.2 (b), (c) and (d), are in addition to any obligations that the Supplier may owe under the Australian Consumer Law.
2.4 The Supplier relies on the Customer’s express warranties and undertakings set out in the Terms and these Special Conditions in submitting a quote or accepting your request for the Ancillary Services; and/or your order.
3. CUSTOMERS RESPONSIBILITIES
3.1 The Customer is solely responsible for:-
(a) conducting a preliminary Site inspection to verify the location of any gas, electrical, plumbing, telephone and other connections;
(b) arranging the disconnection, reconnection and/or installation of any gas, electrical, plumbing, telephone and other connections as may be necessary for the Works;
(c) verifying the structural support, fire ratings, load ratings or other requirements as may be necessary to ensure the Site is suitable for the Works and installing the Goods;
(d) ensuring safe and clear access to Site for any of the Supplier’s employees or agents to perform one or more Ancillary Services and must accompany the Supplier whenever the Supplier is required to attend Site;
(e) collecting the Goods from the Suppliers nominated premises;
(f) any loss of or damage to the Product, Appliances or Accessories to the extent that it occurs after collection or delivery (including, without limitation, as a result of any acts or omissions of the Customer, or any third party, such as a trades person or installer, engaged by the Customer);
(g) all works and services that may be required to prepare the Site for the Works including any demolition, removal, disposal, and reinstatement of existing materials or installing new third party products, appliances or materials (as may be required);
(h) the assembly, fabrication, installing and commissioning the Goods on Site. The Supplier is not responsible for any claim, damage or loss in connection with the assembly, fabrication, installation and commissioning of the Goods;
(i) the Customer Supplied Items; and
(j) obtaining their clients written sign off following completion of the Works.
4. SUPPLIERS RESPONSIBILITIES
(a) Subject to the Terms and these Special Conditions, the Supplier is solely responsible for:
(i) supplying the Goods in accordance with the Customer’s Design Documents; and
(ii) performing the Ancillary Services with reasonable skill and care.
(b) The Supplier’s Referral Program identifies tradespeople for related works. The Supplier does not warrant, endorse or assume any responsibility for any works performed by these or any other tradespeople. If the Customer engages any such person, it does so independently of the Supplier and at its own risk. The Customer must make and rely on its own enquiries to ensure any trade person it engages has the requisite skill and expertise to perform any related works and that all registration, licences and other qualifications remain current before retaining anyone from the Referral Program.
5. CUSTOMER’S DESIGN
5.1 Without limiting sections 2 and 3 of these Special Conditions, the Customer:
(a) is solely responsible for the design of the Works including the preparation and content of the Design Documents submitted to or developed in consultation with the Supplier;
(b) warrants that by providing the Supplier with any Design Documents, it has verified that the design meets all applicable Standards and Laws;
(c) warrants that prior to the date of this Contract, it checked and carefully considered their client’s design brief and that the content of the Design Documents are accurate, complete, reliable and suitable for the Site into which the Goods are to be installed and for fulfilling the Customer’s obligations under its agreement with their client;
(d) must carry out all Works, tasks and activities additional to those contemplated by their client’s design brief which are necessary or otherwise desirable to ensure that its obligations are fulfilled; and
(e) acknowledges and agrees that it is not entitled to make any claim arising out of, or in any way connected with, any defects in the Goods arising as a result of the Design Documents or any deficiency, incompleteness, discrepancy, faults, lack of coordination or integration within or between the design it provides to the Supplier under this Contract and the Customer’s obligations to its client.
5.2 The Supplier shall not be bound to review or comment upon the Design Documents or to check the Design Documents for errors, omissions or compliance with the requirements of this Contract, codes, Standards or Laws. The Supplier’s receipt of, or review of, or direction in respect of, or comment on, the Design Documents and any other documents provided by the Supplier (including performing the Ancillary Services), shall not relieve the Customer from responsibility for the design or the Works. The Supplier is responsible for errors or omissions or departure from the warranties given, or liabilities expressly assumed by the Supplier in this Contract.
5.3 At the request of the Customer or otherwise, in addition to clause 5.2, the Supplier may provide free Ancillary Services including:
(a) lead generation and/or referral;
(b) issuing a quote;
(c) a Check Measure;
(d) 3D rendering of the Goods (in situ), and drawings, specifications, calculations, notes and any other necessary documentation strictly for illustrative purposes;
(e) any prefabrication, assembly, advice, recommendation, information or assistance provided by the Supplier including any such services under clause 5.2 and section 9;
5.4 The Customer acknowledges that the Ancillary Services are provided:
(a) solely for the Customer (and not for any third party including any client of the Customer);
(b) for information purposes only, do not constitute technical, engineering, design or other professional advice and cannot be relied upon in any respect;
(c) “as is” without any express or implied warranty or guarantee of any kind including as to its fitness for a particular purpose, accuracy, reliability, currency, completeness or that they comply with relevant Standards or codes;
(d) to assist the Customer to finalise its order of Haven Kitchens by Formica™ products; and
the Customer must adapt, modify, amend and verify the Ancillary Services to ensure they meet all applicable codes, Standards and Laws before incorporating any part of the Ancillary Services into the Design Documents.
5.5 To the extent permitted by law, the Supplier expressly disclaims all liability to the Customer arising from any reliance the Customer places on the Ancillary Services.
6. MANUFACTURERS WARRANTY
6.1 The Appliances and Accessories are supplied subject to warranties offered by other manufacturers. The Contract does not alter any manufacturer’s warranties, which are supplied separately (where applicable) by the third-party manufacturer.
6.2 The Customer must pass all manufacturer warranties and any associated product literature (including any relating to the Goods), to its client upon completion of the Works.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All Intellectual Property Rights in any Background IP held by a party prior to entry into the Contract, or developed by a party independently of the Contract, remains the property of that party (as relevant).
7.2 All Intellectual Property Rights, other than improvements or modifications to the Customer’s Background IP, developed under the Contract will immediately vest in the Supplier upon creation.
7.3 The Supplier grants the Customer a non-exclusive, revocable license to use its Background IP and any improvements or modifications to its Background IP (if necessary) developed under the Contract, only to carry out the Work and for no other purpose. The Supplier does not grant any rights to amend, alter, modify, exploit or develop the Intellectual Property Rights other than as set out in these Special Conditions.
7.4 The Customer grants the Supplier a non-exclusive revocable license to use its Background IP only to manufacture and supply the Goods and for no other purpose. The Customer does not grant any rights to amend, alter, modify, exploit or develop the Intellectual Property Rights other than as set out in these Special Conditions.
8.1 The Supplier is not responsible for any delay or inability to supply the Goods or complete the Works provided such Goods are delivered or made available within a reasonable time.
8.2 The Supplier will use its reasonable endeavours to perform its obligations as soon as reasonably practicable.
8.3 In addition to clause 7.6 of the Terms, if for any reason the Supplier is unable to supply a particular item of Product, Appliance or Accessory, the Supplier will notify the Customer and request the Customer to choose a substitute item of similar standard and value.
9. DESIGN DEVELOPMENT
9.1 The Customer may submit its own design and/or develop its design in consultation with the Supplier as part of the Supplier’s Ancillary Services.
9.2 If the Customer relies on its own design, the Supplier will issue a quote for review and approval.
9.3 If any design is developed in consultation with the Supplier, clause 5 of these Special Conditions apply. In developing the Customer’s design, the Supplier will carry out design of the Goods based on the Customer’s instructions. The Customer must provide all information, documents and directions required for the Supplier to develop the design. The Supplier will promptly submit to the Customer all designs prepared by it including drawings, specifications, calculations, notes and any other necessary documentation required to complete the design in accordance with the Customer’s requirements together with a quote for review and approval. No comment, consultation, review, modification or design development performed by the Supplier will relieve the Customer of any its responsibility for the design.
9.4 Within 30 calendar days of receipt of a design and/or quote under clauses 9.2 or 9.3, the Customer will notify the Supplier in writing if the design and/or quote is accepted. If the design is not accepted the Customer must provide any comments, adjustments or variations to the design to reach acceptance. In the event the design documentation submitted under clause 9.3 is rejected, the Supplier must re-submit amended design documentation within 5 business days for further review and approval by the Customer. Either party may terminate the design development process at any time by written notice.
9.5 By accepting:
(a) the design, the Customer warrants that the design is sufficient to discharge its obligations under these Special Conditions; and
(b)the quote, the Customer confirms its order for the Goods.
9.6 The Supplier will not commence manufacture of the Goods relating to any design until such acceptance is received.
9.7 The Supplier will rely on the Customer’s acceptance to order any Appliances, Accessories and materials necessary to manufacture Product and supply the Goods in accordance with the Customer’s design.
9.8 If the Customer requests a variation to the design after acceptance has been issued, the Supplier may be required to requote for the Goods.
10.1 Subject to section 7 of the Terms, to the maximum extent permitted by law:
(a) the Customer indemnifies the Supplier against any action, claim, demand, cost, loss, damage, expense or liability suffered or incurred by the Supplier arising out of or in connection with the:
(i) performance or non-performance of the Works including any failure of the Works to comply with applicable codes, Standards or Laws;
(ii) Design Documents, including any breach of any third-party Intellectual Property Rights; or any defect, error, omission in the Goods caused by the Customers design;
(iii) failure by the Customer to provide any manufacturer warranties and any associated product literature (including any relating to the Goods), to its client,
except to the extent that such action, claim, demand, cost, loss, damage, expense or liability is caused by the Supplier’s negligence, breach of law or breach of the Contract; and.
(b) the Supplier’s total aggregate liability to the Customer for any loss or damage arising out of or in connection with this Contract is limited to the price of the Goods.
11. RETURNED GOODS
This section 11 replaces section 8 of the Terms and applies to Goods from Haven Kitchens by Formica™.
(a) You may only return Goods with the prior approval from the Trade Centre manager where the order was placed. Goods accepted for return by the Supplier must be returned within 14 days from the date of the invoice in an unsoiled, undamaged and, in the Supplier’s opinion, in a resalable condition and in the original packaging. You may be charged handling and repackaging fee for any returned Goods.
(b) Your proof of purchase must accompany all Goods returned to the Supplier.
(c) Where Goods are returned to us, credit will only be issued subject to the following conditions set out in clauses 11(d) to (h).
(d) All claims for credit must be supported by:
(i)carrier’s consignment note or similar receipt of delivery/collection; and
(ii) our relevant invoice number.
1.1 We may extend you credit if:
(a) we receive a completed Credit Application from you on terms which are satisfactory to us; and
(b) we consider, in our sole discretion, that your application ought to be approved.
1.2 You acknowledge that any credit we may approve under subclause 1.1 will be subject to these Credit Terms which (together with the Privacy Statement and the Terms and Conditions of Sale (incorporated under clause 2)) are incorporated into the Credit Application.
1.3 If you wish to negotiate the terms of the credit facility or otherwise any terms incorporated in the Credit Application, you should respond to us marking up the terms you seek, and drawing those changes to our attention and obtain our agreement in writing.
2.1 By applying for a credit facility with us, you:
(a) warrant that you have read and understand our Terms and Conditions of Sale, which may be found at https://www.laminex.com.au/terms-and-conditions and are available upon request at any time by email to Apps.Credit@laminex.com.au;
(b) acknowledge that our Terms and Conditions of Sale are incorporated into these Credit Terms and continue to apply to trade on your credit facility; and
(c) agree to be bound by our Terms and Conditions of Sale.
3.1 Charges on your approved credit facility must be paid:
(a) by the time as nominated by us in writing at the time we establish your credit facility; and
(b) without deduction or setoff.
4.1 You are solely responsible for ensuring there is no unauthorised use of your credit account. You must keep details of your credit facility with us confidential, including your account number, and treat it like a banking PIN or password.
4.2 If you become aware that your credit facility is, or may be, the subject of unauthorised use, you must:
(a) notify us in writing as soon as possible via email to Apps.Credit@laminex.com.au; and
(b) provide us with any information you have regarding the misuse or potential unauthorised use of your credit account.
4.3 You will be liable for charges that you have not authorised to your credit account unless:
(a) we ought to have known that they were unauthorised; or
(b) you have notified us in accordance with clause 4.2.
5.1 Your account will be ascribed a credit limit, which you must not exceed.
5.2 At our sole discretion we may:
(a) extend, or refuse, credit to you for any reason;
(b) provide you with credit in excess of your credit limit; and
(c) cease to provide further credit even if your credit limit has not been, or will not be, exceeded.
5.3 We may close your credit facility if you do not use it for six (6) months.
6.1 We may increase or decrease your account credit limit by written notice to you effective immediately.
(a) we decrease your credit limit by giving notice pursuant to subclause 6.1; and
(b) your credit facility would fall into default as a consequence by reason of that notice,
then we will not treat this as an event of default.
6.3 From time to time, we may otherwise amend our Credit Facility Terms with you, in which case:
(a) we will give you at least fourteen (14) days’ written notice of the change; and
(b) your credit facility will be subject to those amended terms in respect of any further supplies made after the fourteen (14) day period has expired unless you have issued a written notice to us objecting to the varied terms within the fourteen (14) day period.
7.1 Your credit facility will be in default if any of the below events occur.
(a) You fail to pay any sums to us when they fall due.
(b) Your account balance exceeds the amount we have identified as your credit limit and subclause 6.2 does not apply.
(c) Any corporate entity that is a Customer or Guarantor is the subject of the appointment of administrators, liquidators, receivers, provisional liquidators or enters into an arrangement or compromise with creditors.
(d) Any individual person that is a Customer or Guarantor commits an act of bankruptcy.
(e) You have given us information in support of your credit account which is false or misleading.
(f) You breach an obligation under the Terms and Conditions of Sale.
7.2 If your credit facility is in default, then:
(a) we may temporarily suspend your credit account;
(b) we may give you a notice requiring that all charges on your credit facility may, at our election, fall immediately due and payable, notwithstanding clause 3; and
(c) we may close your credit facility.
8.1 As security for the sums you owe, or may owe, us, you charge in our favour all of your estate and interest in:
(a) any real property (i.e. any house or land); and
(b) personal property (i.e. any other assets including for example and without limitation, any plant, equipment, vehicles, personal effects and household items),
(c) such property is held in your own right or in your capacity as trustee;
(d) you own the property at present or later acquire it; and
(e) wherever it is situated.
8.2 You irrevocably appoint our company secretary or our solicitors from time to time as your duly constituted attorney to execute in your name a real property mortgage, general or specific security agreement, bill of sale, or consent to any caveat upon written notice and demand to you.
8.3 If you have previously entered into an agreement with us by which you have granted a charge, mortgage, or other security interest in respect of your property then those security interests will continue and will co-exist with the security interests created in these Credit Terms and will secure all of your indebtedness and obligations hereunder. We may, at our election and upon the provision of written notice, vary the terms of such previous charges, mortgages, or other securities to reflect these Credit Terms.
8.4 You acknowledge that:
(a) you have read and understood clause 8; and
(b) clause 8 is necessary to protect our legitimate interests including having regard to:
(i) the risk that retention of title and personal guarantees (if applicable in the Credit Application) may not in substance, provide adequate protection to us;
(ii) the terms of any credit we may approve under subclause 1.1 are given on the basis that this clause 8 would apply, and if that were not the case, we would not have given the same credit terms; and
(iii) the risk of your insolvency given the nature of the industry in which you and we operate.
9.1 If you are the trustee of a trust (whether disclosed to us or not), you warrant to us that:
(a) you enter into these Credit Terms in both your capacity as trustee and in your personal capacity;
(b) you have the right to be reasonably indemnified out of trust assets;
(c) you have the power under the trust deed to enter into these Credit Terms; and
(d) you will not retire as trustee of the trust nor appoint any new or additional trustee without first notifying us in writing and having the new or additional trustee sign an agreement on terms substantially the same as these Credit Terms.
9.2 You must give us a true and complete copy of the trust deed upon request.
A waiver of any provision of these Credit Terms will only be effective if made by the affected Party in writing.
11.1 You warrant that if you have entered into these Credit Terms in reliance upon any oral understanding or representation that you have written such matters on the Credit Application and brought them to our attention in accordance with subclause 1.3.
11.2 Otherwise, these Credit Terms (together with all terms incorporated in the Credit Application):
(a) constitutes the entire agreement and understanding between the Parties in relation to its subject matter;
(b) excludes all implied terms; and
(c) supersedes all previous negotiations, understandings, representations, and warranties.
11.3 Notwithstanding subclauses 11.1 and 11.2, where you have previously entered into a credit agreement with us (Original Agreement), these Credit Terms will constitute a variation of the Original Agreement whereby the terms the Original Agreement are deleted and replaced with these Credit Terms, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by these Credit Terms, in which case they will co-exist with these Credit Terms and, to the extent of any inconsistency, these Credit Terms will prevail.