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The Nitty Gritty
To the fullest extent legally permissible all dealings between Bathroom Tech and any Customer relating to any products ["Products"] and/or services are subject to the following terms and conditions of trade ["these Terms"] unless otherwise agreed in writing:
1. Payments to be by cash, money transfer, cheque or bank cheque. If Bathroom Tech receives or recovers money in respect of debts of the customer or anyone else, Bathroom Tech may use it to pay off whichever part of those debts it chooses.
2. Interest will be charged on overdue accounts at the rate prescribed by the Penalty Interest Rates Act 1983.
3. Property: Even if Bathroom Tech grants any credit facility and/or time to pay:
a. property in Products shall not pass to the Customer until payment in full and of all monies owed to Bathroom Tech and Bathroom Tech reserves the right to take possession and dispose of Products as it sees fit at any time until full payment;
b. the Customer grants permission to Bathroom Tech to enter any property to recover the Products and with such force as is necessary;
c. the Customer agrees that a certificate purporting to be signed by an officer of Bathroom Tech identifying Products as unpaid for shall be conclusive evidence that Products have not been paid for and of Bathroom Tech title to those Products;
d. without derogating from Bathroom Tech rights as a creditor of the Customer or arising under these Terms if Products are used in any construction, building, fabrication and/or manufacturing process ["the Process"] which results in an entitlement of the Customer to receive money from any other person the Customer agrees to hold such part of any monies received by the Customer (or the corresponding book debt owed to the Customer in respect of those monies) as is equivalent to the value of any Products used in the Process as invoiced to the Customer by Bathroom Tech UPON TRUST for Bathroom Tech until payment in full for those Products and all monies owed to Bathroom Tech
4. Limitation of Liability: The Customer agrees:
a. to limit any claim it makes to the cost of replacement of Products or of acquiring equivalent products;
b. that outside Sydney metropolitan area (South) Campbelltown (North) Hornsby (West) Windsor and (East) Double Bay, servicing of products is not supported outside the above mentioned areas only replacement of product is provided.
c. that Bathroom Tech shall not be liable for any loss or expense arising after seven days from delivery (or at all once Products have been unpacked, affixed and/or otherwise used or applied) after which there shall be deemed to be unqualified acceptance;
d. that to the fullest extent legally permissible Bathroom Tech shall not be liable for any damages for personal injury, any damage to property and/or any contingent, consequential, direct, indirect, special or punitive damages whether due to negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly; and
e. that to the fullest extent legally permissible no other term, condition, agreement, warranty, representation and/or understanding whether express or implied, in any way extending to, otherwise relating to or binding upon Bathroom Tech other than these Terms is made or given by or on behalf of Bathroom Tech other than by these Terms save and except to the extent otherwise required by law.
5. Exclusions: The Customer agrees that:
a. the Customer shall rely on its own knowledge and expertise in selecting Products for any purpose and any advice or assistance given by or on behalf of Bathroom Tech shall be accepted at the Customer's risk and shall not be deemed to have been given as expert or adviser nor to have been relied upon;
b. Products are sold subject to each and every manufacturer's trading terms and conditions and are protected by each and every manufacturer's warranty and Bathroom Tech shall not be liable to the extent that any manufacturer is liable under a manufacturer's warranty unless otherwise required by law; and
c. Bathroom Tech shall not be liable nor responsible for any failure to comply with any requirements of the Customer or any other person (whether relating to manufacture, design, fabrication, installation and/or any other particular intended use of any Products and/or otherwise) which are not precisely and accurately communicated in writing directly to the appropriate personnel at Bathroom Tech prior to the entry by Bathroom Tech into any relevant sale contract.
6. Cancellations and Returns: The Customer agrees that:
a. the Customer shall at no time cancel the whole or part of any order placed without Bathroom Tech prior approval;
b. the Customer shall not return Products without Bathroom Tech prior written approval and if Products are not in brand new and unused condition with undamaged packaging and if three weeks or more have passed since the earliest delivery date;
c. Bathroom Tech may otherwise elect to take back Products in saleable condition on such terms as Bathroom Tech considers to be reasonable;
d. the Customer shall in all cases pay to Bathroom Tech a restocking fee of 20% of the gross invoice value of all returns;
e. notwithstanding any other provisions of these Terms the Customer shall not return Products without first providing to Bathroom Tech an original invoice as proof of purchase; and
f. Notwithstanding any other provisions of these Terms the Customer shall not return any Products which have been custom made, custom cut, custom processed or custom acquired.
7. Orders: The Customer agrees that:
a. each order it places shall be deemed to include a representation that it is solvent and able to pay all of its debts as and when they fall due; and
b. when any order is placed the Customer shall inform Bathroom Tech of any facts which might reasonably affect any decision to accept the order and/or grant credit and that any failure to do so shall be deemed to create and constitute an inequality of bargaining position, the taking of an unfair advantage of Bathroom Tech and to be unconscionable, misleading and deceptive.
8. Minimum Invoice Policy and Purchase Price: The Customer agrees that:
a. the Customer shall at all times and in all respects comply with Bathroom Tech minimum invoice policy as may at any time and from time to time apply on such terms as Bathroom Tech considers to be reasonable; and
b. All sales are otherwise made by Bathroom Tech at its ruling price at the time of delivery and on such other terms as Bathroom Tech considers to be reasonable.
a. Bathroom Tech accepts no responsibility or duty to deliver but may elect to arrange delivery at its discretion and without liability and at the Customer's cost and risk in all things;
b. Bathroom Tech shall not be liable for delay or any failure or inability to deliver;
c. Products shall be deemed to be delivered as soon as they are ready for delivery at which time risk shall be deemed to have passed to the Customer; and
d. Bathroom Tech may charge for frustrated delivery to cover Bathroom Tech reasonable expenses.
10. Other Terms and Conditions: No terms and conditions sought to be imposed by the Customer upon Bathroom Tech shall apply.
11. Recovery Costs: The Customer shall pay all costs and expenses (including legal costs on an indemnity basis) incurred by Bathroom Tech and/or its agents in respect of the Customer whether relating to any debt, possession of Products and/or otherwise.
12. Customer Restructure: The Customer shall notify Bathroom Tech in writing of any change in its structure and/or management including any change in director, shareholder and/or management and any change in partnership or trusteeship within seven days of the date of any such change.
13. Credit Limit: The grant of any credit facility or nomination of any credit limit is an indication only of Bathroom Tech intention at the time. Bathroom Tech may vary and/or withdraw any credit facility at any time at its discretion and without any liability to the Customer or any other party.
14. Security for Payment: As security for payment to Bathroom Tech of all monies payable by the customer, the customer does hereby charge in favour of Bathroom Tech all of the customer's interest in freehold and leasehold property both current and later acquired.
15. Forward Orders: The Customer agrees:
a. to pay for so much of any forward order as is from time to time invoiced by Bathroom Tech;
b. that no delay or failure to fulfil any part of such order shall entitle any cancellation or variation of any order or delay or reduce any payment; and
c. To pay any demurrage and/or other costs and expenses of Bathroom Tech in handling and/or holding Products once ready for delivery.
16. Force Majeur: Bathroom Tech shall not be or be deemed to be in default or breach of any contract as a result of Force Majeur. Force Majeur shall include any cause beyond the reasonable control of Bathroom Tech including strikes and lockouts.
17. Disputes: The Customer agrees to pay into an interest-bearing trust account in the joint names of Bathroom Tech and the Customer any amount claimed by Bathroom Tech as a condition precedent to any dispute by the Customer of any such claim on the basis that upon resolution of the dispute the trust fund and any interest shall be dispersed according to the resolution. This clause shall operate as a bar to any defence or claim by the Customer until fully complied with.
18. Defaults: Upon default or breach of these Terms by the Customer Bathroom Tech may inter alia retain all monies paid, cease further deliveries, recover from the Customer any loss of profits arising and/or at Bathroom Tech election take immediate possession of Products not paid for without prejudice to any other rights Bathroom Tech may have and without Bathroom Tech being liable in any way to any person.
19. Severability: Any part of these Terms being a whole or part of a clause shall be capable of severance without affecting any other part of these Terms.
20. Goods and Services Tax [GST]: All monies payable to Bathroom Tech and any other consideration for any other "taxable supply" (within the meaning of A New Tax System (Goods and Services Tax) Act 1999 and associated legislation as amended from time to time) shall unless Bathroom Tech otherwise directs be deemed at all times to be exclusive of GST and/or any other applicable taxes, government charges, levies and/or imposts of any kind whatsoever - any and all of which must be paid by the Customer to Batrhroom Tech as and when and in such manner as Bathroom Tech reasonably requires.
21. Warranty Policy: Save and except as required by law no warranty is given where Bathroom Tech is not the manufacturer of Products other than the warranty offered by the manufacturer and to the fullest extent legally permissible Bathroom Tech liability shall in all cases be strictly limited in accordance with clauses 4. & 5. of these Terms. Where Bathroom Tech is or might be deemed to be a manufacturer then the Bathroom Tech Standard Warranty applies for the period applicable to specific Products.
22. Credit Information: The Customer irrevocably authorises Bathroom Tech and its servants and agents to make such enquiries from time to time as Bathroom Tech may deem necessary to obtain information and/or to investigate the creditworthiness of the Customer including enquiries with persons nominated as trade references, bankers of the Customer, any other credit provider, any credit reporting agency, any land titles office, the ASIC, ITSA and/or any similar body and/or related information service ["the Sources"] and including personal credit and consumer credit information and any property, business and/or solvency information. The Customer by this clause irrevocably authorises the Sources to disclose anything about the Customer which is in the Sources' possession and the Customer agrees that Bathroom Tech may disclose any information it has about the Customer to any interested person (subject only to any obligations Bathroom Tech may have under the Privacy Act 1988 (Cth)).
23. Notice: The Customer agrees that it shall be deemed to have notice of any change to these Terms immediately any change is adopted by Bathroom Tech and whether or not the Customer has actual notice thereof. The Customer shall be bound by any terms and conditions of trade which may be adopted by Bathroom Tech immediately they are so adopted and notwithstanding any other purported or pre-existing terms and conditions which might otherwise have applied.