Terms & Conditions - Ocean Grove Joinery

Terms and Conditions of Trade

1. SUPPLY OF PRODUCTS AND SERVICES

1.1 Supply

OGJ will supply and the Customer will buy the Products and/ or Services in accordance with this Agreement.

1.2 Acceptance and Engagement

The Customer will be taken to have accepted this Agreement if the Customer:

(a) executes this Agreement and return it to OGJ;

(b) otherwise communicates their acceptance to OGJ (whether in writing or verbally); or

1.3 Exclusion of all other terms and conditions

(a) This Agreement:

(i) applies to the exclusion of all other terms and conditions and supersedes all terms and conditions previously issued by OGJ or otherwise agreed between OGJ and the Customer, and all prior discussions, representations and arrangements relating to the supply of the Products and/or Services;

(ii) applies to all Quotations and tenders submitted by OGJ; and

(iii) overrides any terms of purchase used by the Customer to order and purchase the Products and/or Services.

(b) No variation of this Agreement is binding unless expressly agreed in writing by an authorised representative of OGJ.

2. PRODUCTS AND SERVICES

2.1 Price of Products and Services

(a) OGJ will advise the Customer of the Purchase Price of the Products and/or Services in a Quotation.

(b) Unless expressly stated otherwise, the Purchase Price is exclusive of GST and all other taxes, duties or government charges levied in respect of the Products and/or Services.

(d) Unless otherwise stated, a Quotation provided to the Customer by OGJ will be valid for 30 days from the date of issue, or until earlier revoked.

2.2 Order

(a) Once accepted by OGJ, Orders cannot be cancelled or varied by the Customer without the written approval of OGJ. OGJ reserves the right to charge a reasonable cancellation fee, which may include an amount for loss of profit.

As the Purchase Price has been calculated by OGJ based on the quantities of Products and/or Services to be supplied or designated to the Customer, if the Customer requests a change to the quantity or designation of Products or may at its sole discretion charge interest on overdue accounts at the default rate of 12% per annum plus an account keeping fee of $5 per month.

1.1 Recovery Costs

The Customer must pay all costs and expenses incurred by OGJ, its advisers, mercantile agents and any other person, in respect of any action instituted or considered against the Customer, whether for debt, repossession of Products or otherwise.

1.2 No right to offset

No amount owing, whether present or future, actual, contingent or prospective and on any account whatsoever by the Customer to OGJ may be offset against any Liability whether present, future, actual, contingent or prospective of the Customer to OGJ under this Agreement or on any other account whatsoever.

1.3 GST

(a) In this clause expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law.

(b) Unless expressly indicated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this Agreement has been determined without regard to GST and must be increased on account of any GST payable in accordance with this clause.

(c) If GST is imposed on any supply made under or in accordance with this Agreement, the recipient of the supply (Receiving Party) must pay to OGJ (Supplier) an additional amount equal to the GST payable on the supply, subject to the Receiving Party receiving a valid tax invoice, or a document that the Commissioner will treat as a tax invoice, in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with this Agreement.

2. USE OF PRODUCTS

2.1 Customer warranty

The Customer warrants not to make use of a Product outside of any specifications for the Product.

2.2 Disclaimer

OGJ will not be responsible for any Defect in the Products or for Liabilities resulting directly or indirectly from:

(a) the use of any materials at the request of the Customer that is not approved by OGJ. Where OGJ notifies the Customer that any material requested by the Customer to be used in the Products is not approved by OGJ the Customer acknowledges and agrees that the Customer is assuming all risk in relation to the Products and/ or Services provided using such materials and OGJ makes no warranties or representations in respect of such Products and/ or Services and disclaims all responsibility and/ or Liability in respect therefore for any loss or damage or deterioration of the Products after delivery.

1.1 Title and the PPSA

(a) Ownership of the Products will remain with OGJ until all amounts owing by the Customer to OGJ have been paid in full.

(b) OGJ will apply amounts it receives from the Customer towards its oldest outstanding Invoice.

1.2 Registration of Title under the Personal Property Securities Act 2009 (PPSA)

(a) The Customer acknowledges and agrees that this Agreement constitutes a Security Agreement for the purposes of the PPSA and creates a security interest in all Products that have and will be supplied in the future by OGJ to the Customer in the future.

(b) The Customer grants a Purchase Money Security Interest to OGJ to secure any amounts owing to OGJ by the Customer under this Agreement.

(c) The Customer consents to OGJ registering any Security Interest contemplated by this Agreement on the PPSA register and the Customer agrees to provide all assistance reasonably required to facilitate registration and perfection of OGJ’s security interest so that it has priority over all other security interests in the Products. The Customer waives the right to receive notice of a verification statement in relation to any registration on the PPSA register.

(d) Notices or documents required or permitted to be given to OGJ for the purposes of the PPSA will be provided in accordance with the PPSA.

1.3 Application of PPSA

If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising in connection with this Agreement, the Customer agrees that sections 95 and 130 (to the extent they require OGJ to give notice to the customer), and section 96, 121(4), 125, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA will not apply to the enforcement of this Agreement.

2. WARRANTIES, GUARANTEES AND CONDITIONS

2.1 All implied guarantees, warranties and conditions (including warranties as to the quality or fitness for purpose of Products and/ or Services) are excluded to the maximum extent permitted by Law.

2.2 To the maximum extent permitted by Law, OGJ is not liable:

(a) for any Consequential Loss under or in connection with this Agreement; or

(b) for any loss or damage to the Products resulting from any action or omission (including any negligent action or omission) on the part of OGJ, or the employee, contractors or agents of OGJ.

3. INTELLECTUAL PROPERTY

3.1 No licence or assignment

The Customer’s purchase of Products and/ or Services does not confer on the Customer any licence or assignment of any copyright, patent, design or trademark, or any other intellectual property right (whether registered, registrable or not) that subsists in the Products and/ or Services.

3.2 No warranty from Company

for any loss or damage or deterioration of the Products after delivery.

1.1 Title and the PPSA

(a) Ownership of the Products will remain with OGJ until all amounts owing by the Customer to OGJ have been paid in full.

(b) OGJ will apply amounts it receives from the Customer towards its oldest outstanding Invoice.

1.2 Registration of Title under the Personal Property Securities Act 2009 (PPSA)

(b) The Customer grants a Purchase Money Security Interest to OGJ to secure any amounts owing to OGJ by the Customer under this Agreement.

(d) Notices or documents required or permitted to be given to OGJ for the purposes of the PPSA will be provided in accordance with the PPSA.

1.3 Application of PPSA

2. WARRANTIES, GUARANTEES AND CONDITIONS

2.1 All implied guarantees, warranties and conditions (including warranties as to the quality or fitness for purpose of Products and/ or Services) are excluded to the maximum extent permitted by Law.

2.2 To the maximum extent permitted by Law, OGJ is not liable:

(a) for any Consequential Loss under or in connection with this Agreement; or

(b) for any loss or damage to the Products resulting from any action or omission (including any negligent action or omission) on the part of OGJ, or the employee, contractors or agents of OGJ.

3. INTELLECTUAL PROPERTY

3.1 No licence or assignment

3.2 No warranty from Company

1.1 OGJ may make any arrangement or compromise with the Guarantor, obtain additional guarantees, indemnities or securities from any party or release or compromise with any Guarantor or party without affecting the Guarantor’s liability.

1.2 OGJ may grant or apply a credit limit to the Customer at OGJ’s absolute discretion and any such credit limit will not limit the Guarantor’s liability to OGJ.

1.3 OGJ may handle the Guarantor’s personal information (including credit worthiness information) in accordance with clause 13.

2. PRIVACY AND CREDIT INFORMATION

2.1 Handling of personal and credit information

The Customer and Guarantor separately agree that OGJ may, to the extent permitted by law:

(a) obtain information about the Customer’s commercial credit activities from any of the trade references or the accountant named in the Credit Application or any business which provides information about the commercial credit worthiness of persons;

(b) obtain a consumer credit report from a credit reporting body:

(i) about the Customer to assess this or any application for credit made by the Customer, or to collect overdue payments; and

(ii) about the Guarantor for the purpose of assessing whether to accept them as a guarantor in respect of this Agreement;

(c) at any time (including before and after any provision of credit to the Customer), give a credit reporting body certain personal information about the Customer or Guarantor as authorised by Law, including (as applicable):

(i) permitted identity details;

(ii) that the Customer has applied for credit and the amount;

(iii) that OGJ is or is no longer a current credit provider to the Customer;

(iv) that the Guarantor has offered to act as guarantor; and

(v) any other information authorised by Law;

(d) disclose the Customer’s personal information (including credit reports and other information relating to the Customer’s credit worthiness) to the Guarantor or a prospective guarantor. Credit reports and credit worthiness information would be disclosed to prospective guarantors for the purpose of them deciding whether to act as guarantor;

(e) exchange the Customer’s and Guarantor’s personal information (including banker’s opinions, credit reports and other information relating to credit worthiness) with other credit providers for purposes including:

(i) assessing the Customer’s application for credit or the Guarantor’s application to act as guarantor;

(a) it disposes of the whole or any material part of its assets, operations or business;

(b) there is a change in ownership of the Customer;

(d) it ceases to be able to pay its debts as they become due;

(e) any step is taken by a mortgagee to take possession or dispose of the whole or part of its assets, operations or business;

(f) any step is taken to enter into any arrangement between it and its creditors; or

(g) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person in relation to the whole or part of its assets, operations or business.

1.1 Termination for termination events

OGJ may terminate the Agreement immediately without notice if any event referred to in clause 14.2 occurs.

1. AFTER TERMINATION

1.1 After termination

If the Agreement is terminated the Customer must, within 5 Business Days of termination, pay OGJ all amounts it owes OGJ irrespective of whether those amounts have fallen due and whether or not an invoice has been issued by OGJ.

1.2 Surviving provisions

Clauses 1 and 5 to 9 inclusive continue to apply after termination of the Agreement.

2. FORCE MAJEURE

No party is liable for any failure to perform or delay in performing its obligations under this Agreement if that failure or delay is due to a Force Majeure Event. If that failure or delay exceeds 90 days, the other party may terminate the Agreement with immediate effect by giving written notice to the other party. This clause does not apply to any obligation to pay money.

3. ASSIGNMENT

OGJ may in its absolute discretion sub-contract the manufacture or delivery of the Products and/or Services or otherwise assign this Agreement. The Customer must not otherwise assign or deal with the Agreement or any rights under the Agreement without the prior written consent of OGJ.

4. GENERAL PROVISIONS

4.1 Notice

A notice to be given by a party to another party under the Agreement must be in writing and sent to the address previously nominated by that party and will be deemed to be duly given:

(a) in the case of hand delivery, on the day of delivery;

(b) three Business Days after the date of posting by pre-paid registered post; or

1.1 work stoppage, labour dispute, material shortage, utility outage, delay in transportation, fire, flood, earthquake, severe weather, act of God, accident, trade sanction, embargo, act of war, act of terror, condition caused by national emergency, new or changed Law, pandemic, epidemic or any other act or cause beyond the reasonable control and without fault of the delayed party, and whether affecting that party or its contractors or suppliers, for as long as the event prevails.

1.2 GST means any goods and services tax or similar tax.

1.3 GST Law means A New Tax System (Goods and Services Tax) 1999 (Cth).

1.4 Guarantor means the guarantor or guarantors named in the Credit Application and a reference to “Guarantor” includes all Guarantors.

1.5 Law means any legislation, ordinance, regulation, bylaw, order, award, proclamation, direction and practice note of the Commonwealth, State or Territory or any government agency, certificate, licence, consent, permit, approval, qualification, registration, standard and requirement, or any other Law from which legal rights and obligations arise.

1.6 Liabilities means all damages, losses, liabilities, costs, charges, expenses, outgoings or payments (whether direct or indirect, consequential or incidental) including any damages, losses, liabilities, costs, charges, expenses, outgoings or payments in respect of any damage to property or injury to, or death of, any person.

1.7 OGJ means Ocean Grove Cabinetry Pty Ltd (ACN 632 386 906) as trustee for the Ocean Grove Cabinetry Unit Trust trading as Ocean Grove Joinery.

1.8 Products means any products supplied by OGJ to the Customer.

1.9 Order means any order for Products and/or Services placed by the Customer.

1.10 Purchase Price means the price payable by the Customer to OGJ for the Products and/ or Services.

1.11 Quotation means a statement of price given by OGJ to the Customer for supplying specified Products and/or Services, which may include specified terms and conditions.

1.12 Services means any services provided to the Customer by OGJ.

(a) Services, OGJ has a right to adjust the Purchase Price accordingly.

1.1 Customer cooperation

To perform the Services and/ or supply the Products successfully, OGJ requires the Customer’s timely co-operation. Accordingly, the Customer must provide in a timely fashion all information, data, documents and instructions that OGJ reasonably requires to enable OGJ to provide the Services and/ or supply the Products.

1.2 Information from the Customer

The Customer hereby represents and warrants to OGJ that all documentation and information it provides to OGJ is and will be:

(a) complete, true and accurate in all material respects; and

(b) not misleading in any material respect, nor rendered misleading in any material respect by any failure to disclose any other information.

1.3 Timeframe

Unless agreed otherwise in writing between OGJ and the Customer, any estimate of time for the provision of the Services and/ or delivery of the Products is intended for planning and estimating purposes only and is not binding. The timely completion of the Services requires the Customer’s co-operation and any estimates of time for completion of the Services are given on the assumption that such co-operation is provided. Any default or delay by the Customer in providing any necessary co-operation may result in additional fees.

1.4 Obligations owed to the Customer only

Unless agreed otherwise in writing between OGJ and the Customer the Services and/ or Products will be provided solely for the benefit and use of the Customer and OGJ accepts no liability or responsibility to any third party in respect of the Services and/ or Products.

1. INVOICING AND PAYMENT

1.1 Details in Invoice

All invoices issued by OGJ will include details of the Purchase Price and any other costs and charges payable by the Customer in accordance with this Agreement and the payment terms.

1.2 Payment of Purchase Price

(a) Subject to clause 3.2(b), payment is due upon delivery of the Products or completion of the Services.

(b) If OGJ has agreed to supply the Products or Services on credit, the Customer must pay the Purchase Price, without deduction, by the end of the month immediately following provision of the Products and/or Services.

1.3 Payment in cleared funds

Payment by cheque or other negotiable instrument is not regarded as received until funds are cleared.

1.4 Interest

Without in any way limiting OGJ’s right to require payment in full in accordance with clause 3.2, OGJ

(a) the use of accessories not supplied by OGJ as manufactured for, or approved for, use with the Product;

(b) any modifications of the Products not authorised in writing by OGJ;

(d) inadequate or improper maintenance of the Products.

1. DEFECTIVE PRODUCTS

1.1 OGJ’s liability for Defective Products

Subject to the Customer’s compliance with the warranty under clause 4.1 and the disclaimer under clause 4.2, OGJ will replace or repair any Defective Products where OGJ has been notified of the Defect within six months’ of the date of delivery.

1.2 Exclusions and limit of liability

(a) So far as permitted by Law:

(i) OGJ’s liability to the Customer in relation to any Defects is limited to, at OGJ’s option, replacement of Products, supply of equivalent Products or payment of the cost of replacement of the Products; and

(ii) OGJ is not liable under any circumstances for damage arising from any Defects except in accordance with this clause 5.

(b) OGJ will not be liable for any costs incurred by the Customer in returning the Products.

(c) Should a Product returned to OGJ as Defective be found on inspection by OGJ not to be faulty, such Product will be returned to the Customer and all charges for the freight and handling will be charged to and must be paid for by the Customer.

2. LIABILITY FOR SERVICES

2.1 So far as permitted by Law, OGJ’s liability to the Customer in relation to a failure of the Services to comply with an applicable consumer guarantee is limited at the option of OGJ to:

(a) supplying the Services again; or

(b) the payment of the cost of having the Services supplied again.

2.2 To the extent permitted by law, OGJ will not be liable for any Liability (including Consequential Loss) to any property or person resulting from the provision or delay in the provision of the Services.

3. APPORTIONMENT OF LIABILITY

If the Customer makes any claim against OGJ for any Liability arising out of, or in connection with, the Services, Products or this Agreement and some or all of that Liability was due to, or contributed to by the Customer or another third party, OGJ will be liable only for that proportion of the Liability which its acts and omissions bear in relation to the total conduct of all persons causing or contributing to that Liability.

4. RISK, TITLE AND THE PPSA

4.1 Risk

The risk in the Products passes to the Customer on delivery of the Products to the Customer’s requested delivery location. OGJ is not liable to the Customer

OGJ makes no representation or warranty to the Customer of any kind that the Products and/ or Services will not infringe any intellectual property rights of a third party.

1.1 Customer warranty

The Customer warrants that any design or instructions provided by the Customer to OGJ will not cause OGJ to infringe any intellectual property rights of a third party.

2. INDEMNITY

The Customer indemnifies OGJ against any Liabilities which OGJ suffers, incurs or is liable for as a result, directly or indirectly, of:

2.1 any breach of this Agreement by the Customer; or

2.2 any negligent act or omission by the Customer.

3. GUARANTEE INDEMNITY AND CHARGE

3.1 The Guarantor guarantees to OGJ payment of all monies and performance of all obligations including any past, present and future indebtedness by the Customer or the Guarantor arising from any past, present or future dealing with OGJ and indemnifies OGJ against all Liabilities suffered by OGJ arising from any past, present or future dealing with the Customer or the Guarantor.

3.2 The Guarantor agrees:

(a) to pay any person nominated by OGJ any amount OGJ certifies is payable before being entitled to dispute whether that amount is payable;

(b) that this Agreement will remain effective notwithstanding any conduct or event (including any Deed of Company Arrangement) which, but for this clause, may release or vary any obligation of the Customer or the Guarantor;

(c) any payment which is subsequently avoided by any Law relating to insolvency will be deemed not to have been paid; and

(d) that the Guarantor signs both in his or her personal capacity and as trustee of every trust of which the Guarantor is a trustee.

3.3 The Guarantor grants a charge in favour of OGJ over all the Guarantor’s estate and interest in any land and in any other assets whether tangible or intangible in which the Guarantor has any legal or beneficial interest or in which the Guarantor acquires any such interest in the future, to secure OGJ’s rights under this Agreement and the Guarantor agrees, upon request, to execute any document requested by OGJ to further secure OGJ’s rights under this Agreement.

3.4 In consideration of the Guarantor’s promises under this Agreement, OGJ may grant credit to the Customer from time to time at OGJ’s discretion.

3.5 For the purpose of giving effect to the Guarantor’s obligations pursuant to this Agreement, the Customer irrevocably appoints OGJ its attorney.

3.6 If there is more than one Guarantor, each Guarantor agrees to be jointly and severally liable for the full amount owed by OGJ under this Agreement.

1.2 OGJ may grant or apply a credit limit to the Customer at OGJ’s absolute discretion and any such credit limit will not limit the Guarantor’s liability to OGJ.

1.3 OGJ may handle the Guarantor’s personal information (including credit worthiness information) in accordance with clause 13.

2. PRIVACY AND CREDIT INFORMATION

2.1 Handling of personal and credit information

The Customer and Guarantor separately agree that OGJ may, to the extent permitted by law:

(b) obtain a consumer credit report from a credit reporting body:

(i) about the Customer to assess this or any application for credit made by the Customer, or to collect overdue payments; and

(ii) about the Guarantor for the purpose of assessing whether to accept them as a guarantor in respect of this Agreement;

(i) permitted identity details;

(ii) that the Customer has applied for credit and the amount;

(iii) that OGJ is or is no longer a current credit provider to the Customer;

(iv) that the Guarantor has offered to act as guarantor; and

(v) any other information authorised by Law;

(i) assessing the Customer’s application for credit or the Guarantor’s application to act as guarantor;

(i) notifying other credit providers of the Customer’s defaults or the Guarantor’s failure to comply with its guarantor obligations;

(ii) exchanging information about the status of the person’s obligations to OGJ where the person is in default with another credit provider;

(iii) assessing the Customer’s or Guarantor’s credit worthiness; and

(iv) any other purpose authorised by Law;

(a) exchange the Customer’s and Guarantor’s personal information (including credit reports and other information relating to credit worthiness) with its related parties;

(b) use or disclose personal information about the Customer and Guarantor:

(i) for the management of the Customer’s account and administrative purposes including research, planning, service development, security and risk management;

(ii) where a third party acquires or wishes to acquire, or makes inquiries in relation to acquiring, an interest in OGJ’s business;

(iii) for the investigation and prevention of fraud and crime prevention and investigation; or

(iv) to the extent that OGJ is required or authorised by Law to do so;

(c) share personal information with the Customer’s or Guarantor’s executor, administrator, trustee, guardian, attorney and agents (such as financial or legal advisers); and

(d) share personal information with OGJ’s service providers including organisations that provide archival, auditing, debt collection, banking, marketing, advertising, mailhouse, delivery, recruitment, call centre, technology, research, utility, professional advisory and security services.

1.1 Access to personal information

The Customer and the Guarantor may request access to any of their personal information which OGJ may hold.

1. TERMINATION

1.1 Breach of agreement

OGJ may terminate this Agreement with immediate effect by giving written notice to the Customer if:

(a) the Customer breaches any material provision of this Agreement (including without limitation any breach in respect of an obligation to pay money) and fails to remedy the breach within 7 days after receiving notice requiring it to do so; and

(b) the Customer breaches a material provision of the Agreement where that breach is not capable of remedy.

1.2 Termination events

The Customer must notify OGJ immediately if:

1.1 Governing Law

This Agreement is governed by the Law applicable in the State of Victoria, and the parties consent to the exclusive jurisdiction of the courts of the State of Victoria.

1.2 Time

Time is not of the essence except in relation to payment.

1.3 Waiver

The failure of a party at any time to require performance of any obligation under the Agreement is not a waiver of that party’s right:

(a) to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; or

(b) at any other time to require performance of that or any other obligation under the Agreement.

1.4 Confidentiality

The parties agree to keep the terms of this Agreement and all information provided between the parties in relation to the Agreement confidential.

1.5 Unenforceable provision

Where a clause in this Agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.

1.6 Relationship between the parties

Nothing in this Agreement creates any fiduciary relationship, nor any partnership, joint venture or agency relationship between the parties.

2. DEFINITIONS

Unless otherwise inconsistent with the context:

2.1 Agreement means the agreement constituted by these Terms and Conditions of Trade and any associated Credit Application completed by the Customer and Guarantor.

2.2 Consequential Loss means any loss or damage suffered by the Customer or any other person which is indirect or consequential; or which is by way of loss of revenue, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity.

2.3 Customer means a customer supplied or to be supplied Products and/or Services by OGJ.

2.4 Defect means a defect, flaw or imperfection in a Product which prevents the Product from being used for the purposes intended under this Agreement, but does not include anything which has been disclosed as a feature or limitation of the Product by OGJ prior to the date of purchase, any defect, flaw or imperfection that is trivial or insubstantial, accidental damage, normal wear and tear or damage resulting from wilful neglect and Defective has a corresponding meaning.

Force Majeure Event means any failure or delay in the performance of a party’s obligations under this Agreement as a result of a national strike, lockout,

Want to Chat?

Brad Frost | Managing Director
0405 383 170

(03) 5256 1886
20 Sinclair Street, Ocean Grove Vic 3226