These Terms and Conditions of Sale are for Greene Fire Manufacturing Pty Limited (ABN: 40 642
327
526)
trading as
Aluflam Australia (“Company”). Except as otherwise expressly agreed upon in writing between a
duly
authorised officer of
the Company and the Customer, these Terms and Conditions will apply despite any Order or other
document
issued by any
Customer, unless specifically agreed in writing by the Company.
General
1. The Company may issue quotations for the supply of Goods to Customers. Quotations are valid
for a
period of 30
calendar days from the date of issue, after which time prices may vary in the absolute
discretion of
the
Company. A
quotation is not an offer, and no binding contract shall be formed on the issue of a
quotation.
2. All Orders placed with the Company are subject to these Terms and Conditions and the
Company may,
at
any time and
from time to time, vary or alter these Terms and Conditions. Any such variation to these Terms
and
Conditions will apply
upon notification by the Company to the Customer.
3. If a Customer cancels or alters any Order or part Order for Goods at any time after the
Company
has
received the
Order, then the Company reserves the right to charge to the Customer the cost of the Goods
already
acquired for the
Order together with cost of the labour and tooling expended to the date of such cancellation or
alteration.
4. Commencement of provision of Goods based on a quotation is subject to approval by the
Company of
the
Customer’s
Credit Account Application.
5. Any representation, warranty, condition or undertaking that would be implied into these
Terms and
Conditions by
legislation, common law, equity, trade, custom or usage is excluded to the maximum extent
permitted
by
law. Nothing in
these Terms and Conditions excludes, restricts or modifies any condition, warranty, right or
remedy
conferred on a party
by the Competition and Consumer Act 2010 or any other applicable Australian law that cannot be
excluded,
restricted or
modified by agreement.
6. Where the Customer has more than one proprietor, or where there is more than one Applicant
under
a
Credit
Application, the liability of those applicants or proprietors under these Terms and Conditions
will
be
Joint and
Several.
7. “Customer” means both the Customer in these Terms and Conditions and the Applicant under
the
Credit
Account
Application.
8. These Terms and Conditions together with the quotation and the Order constitute the entire
agreement
between the
Customer and the Company. They supersede any previous (written or oral) arrangements,
correspondence,
tenders,
representations, proposals, understandings and communications. If there is any ambiguity,
inconsistency
or conflict
between these Terms and Conditions and any other (written or oral) arrangements, correspondence,
tenders,
representations, proposals, understandings and communications, these Terms and Conditions take
precedence unless
otherwise stated. If any provision of these Terms and Conditions is voidable or unenforceable
that
provision will be
severed and the rest of these Terms and Conditions will remain in full force and effect
9. The Customer must comply with Change in Law affecting the Goods and services or these Terms
and
Conditions. “Change
in Law” is a new Law (other than common law, equity or an Approval) which takes effect after the
Effective Date, which
could not reasonably have been anticipated by a competent supplier of the Goods and services,
and:
a) directly affects and necessitates a physical change to the Goods and services; and
b) directly increases or decreases the Company’s cost of supplying the Goods and services, but
excludes
a change in
income tax, GST or indirect tax.
10. These Terms and Conditions apply to all Goods and services supplied by the Company
irrespective
of
whether those
Goods and services were supplied prior to the date these Terms and Conditions were notified to
the
Customer.
Order
11. The Customer must place an order for the Goods with the Company on an order form
(“Order”). This
Order is then
binding on the Customer.
12. The Customer must provide the dimensions of the goods required on the Order and must
clearly
state
whether the
dimensions provided are for the size of the Goods or the size of the site into which the Goods
are
to be
installed.
13. All dimensions submitted by the Customer on the Order for the Goods shall be the sole
responsibility
of the
Customer. If the Goods are not suitable for the site as a result of incorrect dimensions being
provided
by the Customer,
the Customer will remain liable for the full cost of the Goods.
Pricing
14. If there is any error or omission in a quotation, the Company reserves the right to amend
the
quotation price. This
clause applies even if the quotation has been accepted by the Customer.
15. Unless otherwise stated, all prices quoted are GST exclusive. GST will be payable in
addition to
the
price and will
be added in relation to delivery, supply and installation of all goods and services.
Terms of Payment
16. All Customers will be required to make prepayment prior to Goods being provided until they
have
completed and had
approved a Credit Account Application with the Company.
17. All payments due to the Company are to be made, without retention, within thirty (30)
calendar
days
of the date of
the invoice. Payment will be considered to be made when the funds are cleared in the Company’s
nominated
bank account.
18. If the Customer fails to make payment in accordance with the terms of clause 17, the
Company
will be
entitled to:
a) charge default interest at the rate of 2% per annum above the Reserve Bank of Australia 10
year
Government Treasury
Rate prevailing at the Due Date on all overdue amounts (including late payment charges and
amounts
other
than the price)
calculated daily on and from the due date for payment and the parties agree that any amount so
calculated is not a
penalty but rather an accurate pre-estimate of the damage to be incurred by the Company.
Payments
received from the
Customer will be credited first against any default interest, then in payment of services and
then
against payment of
any goods, and all such charges will be payable on demand;
b) claim from the Customer, all costs relating to any action taken by the Company to recover
money
due
from the Customer
including any legal costs and disbursements on a solicitor-client basis;
c) cease all work remaining to be performed by the Company under the quotation and terminate
any
agreement in relation
to delivery of Goods that have not been delivered prior to the Customer’s default; and
d) require the payment of cash upon delivery of any further Goods.
e) exercise any rights under Security of Payment Legislation as per Clause 39.
19. The Company may set-off or deduct from payments from the Company to the Customer (under
any
other
arrangement):
a) money paid by the Customer to the Company;
b) amounts wrongly paid to the Customer;
c) amounts due and owing by the Customer to its employees, consultants, contractors or agents
that
have
been paid
directly by the Company.
Delivery & Inspection
20. Any date or time for delivery quoted by the Company is an estimate only and the
Company will
endeavour to meet that
estimate, but failure to do so will not confer on the Customer any right of cancellation
on the
Customer’s part or
render the Company liable for any loss or damages directly or indirectly sustained by
the Customer
as a
result thereof.
21. The Company’s obligation to deliver will be discharged on arrival of the Goods at
the Customers
nominated delivery
destination, nominated transport company, nominated agent or the address appearing on
the quotation.
22. Unless specifically agreed otherwise in writing, the Customer is responsible for
all costs and
charges in respect of
delivery and transport of the Goods, including insurance.
23. The Customer is responsible for the unloading of the Goods upon delivery. The
Company is not
liable
for any damage
caused to the Goods during unloading, or any other loss or damage occasioned in that
regard.
24. The Customer will examine the Goods immediately after delivery and the Company
will not be
liable
for any
mis-delivery, shortage, defect or damage unless the Company receives details in writing
from the
Customer within 7
calendar days of the date of delivery of the Goods.
Risk and Indemnity
25. The Company shall have in place all relevant insurances required at law.
26. Title in any Goods supplied and/or installed will remain with the Company until
the Customer has
paid and discharged
any and all indebtedness to the Company on any account whatsoever including all
applicable sales
taxes
and other taxes,
levies and duties. Any payment made by or on behalf of a Customer that is later avoided
by the
application of any
Statutory Provision will be deemed not to discharge the Customer’s indebtedness and in
such an event
the
parties are to
be restored to rights each respectively would have had if the payment had not been
made.
27. The risk in any Goods supplied and/or installed will pass to the Customer upon
delivery (actual
or
constructive) to
the Customer.
28. The Customer acknowledges that if the Customer is in possession of any Goods
supplied and/or
installed, the Goods
are held by the Customer solely as a fiduciary bailee for the Company until payment has
been made in
full to the Company
as described in Clause 18.
29. The use operation and maintenance by the Customer of any Goods supplied must be in
accordance
with
the Company’s
directions (whether written or otherwise) and the manufacturer’s advice.
30. Should any item of equipment supplied by the Company be modified by or for the
Customer without
the
written approval
of the Company, any warranty on the modified item or equipment will cease.
31. The Customer acknowledges that it has informed itself as far as practically
possible as to the
nature and scope of
the works, the extent to which it may be affected by the nature and location of the site
and to have
taken account of
all information available. The Customer warrants that all information given by it to the
Company is
correct and the
Company accepts no responsibility for problems arising from inaccurate
information.
32. The Customer acknowledges that the Goods quoted is to the specification set out in
the Company’s
quotation
33. To the extent permitted at law, the Company will not be liable to the Customer or
any third
party
for liquidated
damages in any form, any delay costs, consequential loss including (without limitation)
any loss of
profits, loss of
revenue, loss of production, loss of business opportunity, loss of goodwill, loss of
business
reputation, economic loss
or any indirect, remote and/or unforeseeable loss.
34. The aggregate liability of the Company in damages (however arising) in respect of
any act or
omission of the Company
in connection with its obligations under these Terms and Conditions will not exceed the
amount of
one
thousand dollars
(AUD$1,000), even if the Company has been advised by the Customer as to the possibility
of such loss
being incurred.
35. The Customer is obliged to inform the Company as to the possibility of any loss to
the Company
being
incurred and to
mitigate all such loss.
36. The Customer unconditionally and irrevocably indemnifies the Company against all
losses,
damages,
costs, charges,
liabilities and expenses of whatsoever kind which the Company may at any time and from
time to time
suffer or incur due
to any act or omission of the Customer in connection with its obligations under these
Terms and
Conditions so long as
such losses, damages, costs, charges, liabilities and expenses are not caused by the
negligent or
fraudulent act of the
Company.
37. As security for payment, the Customer (and where applicable each Guarantor) agrees
to grant the
Company a Security
Interest (as defined in the Personal Property Securities Act 2009 (Cth) (“PPSA”) in the
outstanding
payments and all
after acquired property and an irrevocable right to register this interest against it or
its
property
(as the case may
be) on the Personal Property Securities Register established under Chapter 5 of the PPSA
(“Register”)
including (without
limitation) where applicable, as a purchase money security interest. The Customer grants
the Company
an
irrevocable
right to search the Register from time to time in relation to it or its property. The
Customer
agrees
for the purposes
of the PPSA and to the extent permitted by law, Sections 95, 121(4) 128, 129, 130,
132(3)(d),
132(4),
135 and 143 of the
PPSA have no application to these arrangements and the Company is not required to give
notice under
section 135 of the
PPSA. If the Company receives any notice in relation to the Customer under section 64 of
the PPSA,
all
outstanding
payments will become immediately due and payable. The Customer agrees to pass such
resolutions,
execute
and sign any
documents or forms, as required from time to time to formalise, affirm or perfect the
said Security
Interest.
38. All claims for payment issued by the Company are issued in accordance with the
relevant Security
of
Payment Act or
equivalent Legislation.
39. The customer hereby irrevocably grants to the Company, its agents and servants, an
unrestricted
licence, without
notice, to enter premises occupied by the customer to identify and remove any of the
Goods the
property
of the Company
or which the Company has a Security Interest in, in accordance with these Terms and
Conditions of
Sale
without in any
way being liable to the customer or any person claiming through the customer. The
Company will have
the
right to sell or
dispose of any such Goods removed or otherwise in its sole discretion and will not be
liable for any
loss occasioned
thereby.
Consumer Law
40. The Goods come with guarantees that cannot be excluded under the Australian
Consumer Law. You
are
entitled to a
replacement or refund for a major failure and compensation for any other reasonably
foreseeable loss
or
damage.
41. No additional express warranty for defects or otherwise are provided for our
Goods. Consumers
may
rely upon their
statutory rights and remedies under the Australian Consumer Law.
42. The Company can be contacted in relation to claims as follows:
a) Telephone Number: (02) 9526 3100
b) Email Address: accounts@greenefire.com.au
c) Mailing address: PO Box 688, Caringbah NSW 1495
43. Any cost incurred in contacting us or delivering the Goods to us will be borne by
you.
Force Majeure
44. The Company will not be liable for any failure or delay in supply, delivery or
installation
where
such failure or
delay is wholly or partly due to any cause or circumstances whatsoever outside the
reasonable
control of
the Company
including, but not limited to war, strikes, lockouts, industrial disputes or unrest,
government
restrictions or
intervention, transport delays, fire, act of God, breakdown of plant, shortage of
supplies or
labour,
storms or tempest,
vandalism or riot, epidemic and pandemic, civil commotions or accidents of any kind
(each an “Event
of
Force Majeure”).
The Company’s obligations will be suspended until the Event of Force Majeure ceases to
cause the
failure
or delay (as
the case may be). The Customer will not be relieved of any obligation to make payment to
the Company
regardless of any
party being affected by an Event of Force Majeure. If the Company is prevented from
complying with
their
obligations due
to an Event of Force Majeure, the Company may at its option at any time cancel the
contract.
45. The Customer acknowledges and agrees that the Company relies upon the performance
of its
suppliers,
manufacturers
and subcontractors to comply with its obligations under these Terms and Conditions. The
Customer
agrees
that a written
notice from the Company of delay on the behalf of its suppliers, manufacturers and
subcontractors
will
be conclusive
evidence of delay.
Confidentiality
46. The Customer shall not (and shall procure that its subcontractors, officers,
employees and
agents do
not), without
the Company’s prior written consent, disclose Confidential Information to others or use
Confidential
Information for
purposes other than as permitted under these Terms and Conditions. “Confidential
Information” means
any
information
relating to the goods, work or Services procured in connection with these Terms and
Conditions
including
a Quotation,
the Company operations or any other information provided by the Company to the Customer
(including
information
concerning the Services), other than information:
a) made available to the public at large, otherwise than as a result of a breach of
these Terms and
Conditions;
b) already known to the Customer prior to being furnished to the Customer; or
c) made available on a non-confidential basis by a third party who is not prohibited
from providing
the
information to
the Customer.
47. The Customer may disclose Confidential Information:
a) as required by Law, provided the Customer has notified the Company before doing so
and the
Company
has had a
reasonably opportunity to take steps that the Company considers necessary to protect the
confidentiality
of that
information;
b) to legal advisers, accountants, auditors, financial advisers or other advisers
under a duty of
confidentiality; or
c) for related bodies corporate, employees, agents or contractors of the Customer who
have a need to
know for the
purposes of these Terms and Conditions (and only to the extent that each has a need to
know)
provided
they have been
directed by the Customer to keep confidential all Confidential Information.
48. The Customer shall not disclose any Confidential Information through any media
communication
without
the Company’s
prior written consent. The Customer shall refer to the Company any media enquiries it
receives
concerning the Company’s
operations or these Terms and Conditions.
Protection of Intellectual Property, Know-How and Proprietary Information
49. The Customer shall not cause or permit anything which may damage or endanger the
Company’s
Intellectual Property
(including all patents, trade marks, copyright, designs, drawings, test reports,
regulatory and
industry
approvals and
certificates, technical data pertaining to the Company’s Goods and services, and also
includes the
use
of the words
“Greene Fire”, “Aluflam” and product names) or other intellectual property licensed to
the Company
or
the Company’s
title to it), moral rights, Know-How (any practical information, formula, process,
business method,
pattern, device or
compilation of information which is used by the Company, howsoever described or
communicated to the
Customer), or
Proprietary Information (confidential or private information in the Company’s ownership,
control or
possession which is
capable of commercial exploitation) or to cause or permit anything which may allow third
parties to
do
so.
50. The Customer may only make use of the Confidential Information, Intellectual
Property, moral
rights,
Know-How and
Proprietary Information for the purposes authorised in these Terms and
Conditions.
51. The Customer must:
a) comply with all regulations and practices in force or use in New South Wales and
Australia to
safeguard the Company’s
rights in the Intellectual Property, Confidential Information, moral rights Know-How and
Proprietary
Rights;
b) notify the Company of any suspected infringement of Clause 49; and
c) indemnify the Company for any damages caused to third parties against all losses,
damages, costs,
charges,
liabilities and expenses of whatsoever kind caused by any breach of Clause 49 by the
Customer.
Termination
52. The Customer may terminate these Terms and Conditions and/or any Order immediately
if the
Company
has failed to
remedy a breach, provided the Customer has given the Company written notice describing
the breach,
and
the Company has
not remedied the breach within thirty (30) calendar days of receiving such
notice.
53. If the Customer fails to comply with any of these Terms and Conditions or the
Credit Account
Application Terms (if
applicable) being a natural person or persons commits any act of bankruptcy or being a
corporation
passes a resolution
for winding up or liquidation (other than for the purpose of reorganisation or
reconstruction) or
enters
into any
composition or arrangement with creditors or if a receiver, manager, receiver manager or
administrator
is appointed for
any property or assets of the Customer or becomes liable to be wound up by reason of
insolvency or
if
any petition is
presented for its winding up, or if a Liquidator or Provisional Liquidator is appointed,
the Company
may, in addition to
exercising all or any of its rights against the Customer, suspend any further deliveries
and
immediately
enter premises
occupied by the Customer to recover possession of any Goods not paid for in accordance
with these
Terms
and Conditions
without in any way being liable to the Customer or any person claiming through the
Customer.
54. The obligations under clauses 46 to 51 are continuing and shall survive the
expiration or
termination of these Terms
and Conditions.
55. On the expiry or termination of these Terms and Conditions, the Customer must
forthwith cease to
use
the Company’s
Confidential Information, Know-How, Intellectual Property and Proprietary Information
save as
expressly
authorised by
the Company in writing
Installation
56. The Company licences the Customer to install the Goods if appropriate. The Company
does not
provide
installation
services but can provide the Customer with contact to other companies who can provide
these
services.
57. If the Goods are affixed to other materials the totality thereof will be the sole
and exclusive
property of the
Company until payment as defined in Clause 18 has been made in full to the Company
unless the other
materials or part
thereof are or is the property of a party or parties other than the customers in which
case the
totality
thereof will be
deemed to be owned as tenants in common with such other party or parties in shares
corresponding to
the
respective
amounts paid or payable by the customer in respect of such other party or
parties.
58. The Customer must ensure that the working conditions on the site are reasonable
and must comply
with
their
Obligations under the Work Health and Safety Act.
59. The Customer will be fully responsible for site conditions and prepared surfaces,
and the
Company
bears no liability
for any defect in site conditions or prepared surfaces.
Governing Law & Jurisdiction 60. The Customer agrees that these Terms and Conditions
will be
construed
according to the
Laws of the State of New South Wales and consents to any proceedings being instituted
and heard in
the
State of New
South Wales applying the Laws of New South Wales.
