GENERAL TERMS & CONDITIONS
Definitions & interpretation
1.1 In this Agreement: “Buyer” means the Buyer issued with the Quotation; “ModularWalls” means Modular Walls Pty Ltd ACN 667 192 921, ABN 36 667 192 921; “Price” means the Price for the Goods and Services in $A exclusive of GST; “Goods and Services” means the Goods and/or Services the subject of the sale described by the Quotation; “Quotation” means the quotation provided by ModularWalls to the Buyer which together with these Terms and Conditions of Sale form the agreement, clerical errors and omissions excepted.
1.2 Headings in this Agreement are for convenience only and will not affect their interpretation.
Orders and payment
2.1 The terms and conditions of this Agreement apply to every order placed by the Buyer with ModularWalls for the Goods and Services immediately upon acceptance of that order by ModularWalls. Orders must be placed by the Buyer in writing referring to the Quotation number and subject to any conditions stated on the Quotation. The Buyer must satisfy itself that the quantities, descriptions and specifications in the Quotation are correct and that the goods including their specifications are suitable for the Buyer’s purposes before placing an order. ModularWalls reserves the right to withdraw a Quotation at any time. ModularWalls is not obliged to accept any order placed by a Buyer.
2.2 ModularWalls will issue a tax invoice to the Buyer for the supply the Goods and Services pursuant to an order. Any tax invoice issued by ModularWalls is issued as a payment claim pursuant to section 13 of the Building and Construction Industry Security of Payment Act 1999 (NSW) if applicable.
2.3 ModularWalls has 2 usual payment methods, cash payments and payments on account: (a) In respect of “Non Account Customers”, the Buyer must pay the deposit stated on the Quotation when placing an order. If there is no deposit specified, the deposit is 30% of the Price (plus GST). The balance of the Price must be paid in full prior to supply of the Goods and Services and within 30 days of the date of the tax invoice. (b) In respect of an “Account Customer”, the terms of payment are as set out in the relevant credit application, if approved by ModularWalls.
2.4 If the Buyer is unable to accept delivery of the Goods on the shipment date, ModularWalls reserves the right to charge a storage fee of 5% of the Price (plus GST) per month until such time as the Buyer accepts delivery of the Goods.
2.5 At delivery, ModularWalls will unload the Goods at kerbside adjacent to the delivery address unless (a) the Buyer requests and ModularWalls agree to unload the Goods elsewhere. (b) If the Buyer requires ModularWalls to cross curbs or footpath the Buyer shall provide written approval from Council or the relevant authority. (c) Delivery will be subject to ModularWalls’ carrier being satisfied that access for delivery is safe and permissible.
2.6 If ModularWalls’ carrier is delayed at the Buyer’s site for more than one (1) hour carrying out a delivery for a reason beyond the carrier’s control or ModularWalls’ control, ModularWalls reserves the right to charge for waiting time. If ModularWalls’ carrier cannot identify the site because the delivery address the Buyer has provided is inadequate, ModularWalls reserves the right to store the Goods at the carrier’s premises and charge the Buyer for the reasonable costs incurred as a result.
2.7 The Buyer indemnifies ModularWalls from any damage resulting from the carrier’s vehicle entering onto the delivery site.
2.8 The Buyer agrees to pay to ModularWalls interest on any amounts due to ModularWalls but unpaid after 30 days at the rate of 10.0% per annum, calculated daily until paid.
2.9 The Buyer further agrees that all costs and disbursements incurred by ModularWalls in recovering payment of any overdue invoice or in enforcing its rights under this Agreement, including, without limitation, legal costs on a solicitor and client basis and any costs of registration under Clauses 2.10 and 5 (Recovery Expenses) are recoverable against the Buyer as a debt. 2.10 The Buyer charges in favour of ModularWalls any real property and personal property in which it has an interest with payment of any outstanding invoices issued to the Buyer and any associated costs and expenses, including Recovery Expenses (Charge) and where the Buyer is a corporation, if any tax invoice remains unpaid for 60 days or more, ModularWalls may enforce the Charge by the appointment of a receiver by the Supreme Court of New South Wales and the Buyer consents to the appointment of such a receiver.
2.11 Apart from the right of cancellation conferred by clause 8 below, no order from the Buyer may be cancelled by the Buyer except with the written consent of ModularWalls and on terms agreed with ModularWalls, including that the Buyer must immediately pay to ModularWalls a cancellation fee of 35% of the Price (plus GST) or all costs and expenses which may have been incurred by ModularWalls in providing or preparing to provide the Goods and Services to the time of cancellation, whichever is the greater.
2.12 If a Buyer wishes to alter an order placed with and accepted by ModularWalls, ModularWalls may accede to such a request on terms including an increase in the Price. Where no materials have been ordered and no work has been undertaken, there may be no cost for such alterations.
2.13 ModularWalls may refrain from providing any Goods and Services, cease production and terminate this Agreement in accordance with clause 8 if the Buyer has not strictly complied with any term of this Agreement.
2.14 All orders of less than A$250.00 (not including freight cost) attract an order processing fee of A$100.00.
2.15 ModularWalls reserves the right to charge a credit card processing fee of 1.5% of the Price (plus GST) in lieu of the merchant fees payable by ModularWalls to credit card providers.
Design and measurements
3.1 Unless otherwise agreed in writing, the Goods and Services shall be as set out in ModularWalls’ literature. The Buyer is responsible for the design of the Goods and Services and ModularWalls assumes no responsibility for design. ModularWalls relies on the accuracy of all drawings, designs and plans provided by the Buyer and its consultants. The Buyer undertakes to provide ModularWalls with any revisions to design drawings and specifications.
Title and risk
4.1 Risk passes to the Buyer upon delivery of any Goods associated with the provision of the Goods and Services to the Site
4.2 Title in such Goods does not pass to the Buyer until payment of the Price and any associated costs and expenses, in full. If Goods are delivered prior to payment of the Price in full, until payment of the Price in full, the Buyer must hold the Goods as bailee for ModularWalls and must insure and securely store the Goods in a manner such that they are readily distinguishable from other similar Goods of the Buyer or third parties.
4.3 Until payment of the Price in full, the Buyer grants ModularWalls the irrevocable right to enter upon any premises owned or occupied by the Buyer to retake possession of the Goods without liability for any damage caused.
4.4 Any claim by the Buyer for short delivery, damage or defective workmanship must be notified to ModularWalls by telephone within forty eight (48) hours of delivery and then in writing and with a digital photograph within seven (7) days of delivery, failing which no claim may be made. In the event of a claim, the Goods must not be removed from stacks after delivery, other than to inspect them.
PPSA registration
5.1 The Buyer agrees that all Goods supplied to them by ModularWalls will be subject to a security interest as that term is defined in the Personal Property Securities Act 2009 (PPSA) and will treat the security interest in the Goods as continuing and subsisting security with priority over a registered general security and any unsecured creditors.
5.2 Accordingly, the Buyer grants ModularWalls a security interest in the Goods and in any proceeds arising from the sale of the Goods or in any accessions in the Goods or if the Goods become an accession the accession and the Goods, to secure the Buyers obligations to ModularWalls including, but not limited to, t he obligation to make payment for the goods.
5.3 The Buyer is responsible for all costs incurred by ModularWalls in registering its interest under the PPSA and all costs of enforcement. Furthermore, the Buyer also agrees if needed to the unconditional ratification of any actions by ModularWalls in relation to the protection of ModularWalls’ security interest.
5.4 If ModularWalls, pursuant to PPSA, takes all or any of the Goods in satisfaction of the Buyer’s obligations to ModularWalls, the Buyer will remain liable to ModularWalls for the difference between the market value of the Goods at the time they are first able to be sold by ModularWalls free from all rights and interests of the Buyer and other persons and the amount of the Buyer’s obligation for which they are in default.
5.5 The Buyer agrees that ModularWalls has unconditional access to any premises where the Goods are stored, or where they are reasonably thought to be stored, and acknowledges that ModularWalls has the right to take possession of these Goods. The Buyer forfeits any civil or criminal claims in respect of this, and exempts ModularWalls from being liable to any damage that may occur in taking possession of the Goods.
5.6 The Buyer agrees to waive to the maximum extent possible at law the following rights under the PPSA: receipt of a verification statement pursuant to section 157; and a statement of account under section 132; to recover any proceeds under section 140; to receive notice from ModularWalls to dispose of collateral under section 130, or to retain collateral under section 135 and to object to that notice under section 137; to redeem collateral under section 142; to reinstate a security agreement under section 143; to not have goods damaged or to be reimbursed in respect of such damage if ModularWalls takes possession of an accession of goods (section 92 and 93); to refuse permission to remove an accession until security is given by ModularWalls for reimbursement as per section 94); to receive notice of removal of an accession under section 95); to apply to court for an order concerning removal of an accession; and any other right in favour of the Buyer that can be lawfully contracted out of under the PPSA (including but not limited to the provisions listed in section 115)
5.7 In addition the Buyer acknowledged that sections 96 and 125 do not apply to any security agreement created on the basis of these terms.
5.8 The Buyer will immediately notify ModularWalls of any change in its name, address, contact or personal details to enable ModularWalls to register a financing change statement, if required. In the absence of such notification, the address ModularWalls holds in its records is deemed to be the Buyer’s relevant address.
5.9 The Buyer will immediately inform ModularWalls of any changes made to its business practices which may effect ModularWalls’ interest/s.
5.10 The Buyer will not agree, encourage or allow any other person to register a financing statement without the express written consent of ModularWalls and shall notify ModularWalls as soon as it is aware of any other person taking steps to register an interest in the goods.
Force majeure
6.1 ModularWalls will not be liable to the Buyer in any manner or be deemed to be in breach of this Agreement because of any delay in performing or any failure to perform any of ModularWalls’ obligations under this Agreement if the delay or failure was due to any cause beyond ModularWalls’ reasonable control.
6.2 The following will be included (without limitation) as causes beyond ModularWalls’ reasonable control: (a) governmental actions, war or threats of war, national emergency, riot, civil disturbance, sabotage or requisition; (b) Acts of God, fire, explosion, flood, epidemic or accident; (c) import or export regulations or embargoes; (d) labour disputes not including disputes involving ModularWalls’ work -force; (e) any kind of carriage, transportation or postal delay; or (f) inability to obtain or delay in obtaining supplies to enable the provision of the Goods and Services. WARR ANTIES ModularWalls will provide the Goods and Services in accordance with any applicable industry or statutory standards, any applicable literature regarding the Goods and Services as published by ModularWalls from time to time and any specifications agreed in writing between the parties. This warranty does not affect the Buyer’s obligation to pay the Price. To the maximum extent permitted by law, ModularWalls does not provide any other warranty in relation to the Goods and Services other than those in this clause. To the maximum extent possible, any other warranties that may be asserted whether express or implied and including through statute, are expressly negatived.
Termination
8.1 ModularWalls may terminate this Agreement without cause and without prior notice in its absolute discretion.
8.2 Subject to clause 2.11, the Buyer may terminate this Agreement on 7 days notice.
8.3 Termination by either party must be notified in writing to the other party.
8.4 Upon the termination of this Agreement, the Buyer must immediately pay to ModularWalls an amount equal to 35% (plus GST) of the Price as a cancellation fee or reimburse ModularWalls for any amounts payable for work done in providing or preparing to provide the Goods and Services to that time, whichever is the greater. A tax invoice in this regard will be issued as in clause 2.2.
8.5 The termination of the Agreement is without prejudice to the rights and obligations of either the party accrued prior to termination.
Limitation of liability
To the maximum extent permitted by law, ModularWalls’ total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement is limited to the Price or provision of further Goods and Services at ModularWalls’ absolute discretion.
Claims
All claims in relation to any defect or fault with the Goods and Services shall be notified in writing to ModularWalls at the time of delivery or as soon as practicable. ModularWalls has the right to inspect and if warranted, the right to rectify or replace the Goods or Services, before the Buyer exercises any other right including that of set – off or deduction. ModularWalls shall have a reasonable time to repair and rectify the Good s and Services having regard to the time it takes to source products or parts from overseas.
Indemnity
The Buyer indemnifies ModularWalls and its officers, contractors, delegates, employees and agents for any and all loss, cost, damage, liability or expense, whether direct, indirect, special or consequential, that ModularWalls suffers itself or incurs in relation to any third party, where the loss, cost, damage, liability or expense is caused by or contributed to by an act or omission of the Buyer or its officers, contractor s, delegates, employees or agents for such things including but not limited to the use, installation and maintenance of the Goods.
No assignment
Neither this Agreement nor any rights or obligations in this Agreement may be assigned or otherwise transferred by the Buyer without the prior written consent of ModularWalls, which may be withheld in the ModularWalls’ absolute discretion. ModularWalls may assign its rights or obligations without the Buyer’s consent.
Delegation
ModularWalls may delegate or sub-contract the performance of any obligation under this Agreement without the written consent of the Buyer.
Governing law and jurisdiction
This Agreement and the transactions contemplated by this Agreement are governed by the law in force in New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia and all courts competent to hear appeals from the courts of New South Wales, Australia in respect of all proceedings arising in connection with this Agreement.
Arbitration of dispute
All questions, disputes or differences which arise between the parties with respect to this Agreement are to be referred to a single arbitrator in accordance with the provisions of the Commercial Arbitration Act 2010 (NSW) or any re-enactment or statutory modification of that law for the time being in force.
Variation and waiver
15.1 The terms of this Agreement may be varied only by a written agreement between the parties.
15.2 No right or remedy under or arising from this Agreement may be waived other than in writing signed by all the parties. Accordingly, any non-exercise or partial exercise of, or any delay in exercising any right or remedy does not constitute a waiver of that right or remedy.
Severance
If any provision of this Agreement should be held to be void, illegal or unenforceable in any way, it may be severed or read down as appropriate and the remaining provisions will not in any way be effected or impaired thereby and this Agreement will be construed so as to most nearly give effect to the intent of the parties as it was originally executed.
Entire agreement
This Agreement (including the Quotation) constitutes the entire agreement of the parties about its subject matter and any previous document, understanding and negotiation on that subject matter ceases to have any effect.