1. Definitions
1.1 “Seller” shall mean DiaOseal and its successors and assigns.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Seller to the Client (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Seller to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 “Quotation” Shall mean any order, tender or quotation requested from the Seller for estimation or price of requested products or Goods. Any errors or omissions in qualities and/or measurements made by Seller are excepted, and Seller reserves the right to make any variations to the quotation, the order and the price arising out of any such errors or omissions.
1.7 “Price” shall mean the cost of the Goods as agreed between the Seller and the Client subject to clause 4 of this contract.
2. Acceptance
2.1 Any instructions received by the Seller from the Client for the supply of Goods and /or the Client’s acceptance. Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Client’s shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
2.4 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.5 The Client undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Client’s name and /or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice).
3. Goods
3.1 The Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms or email correspondence as provided by the Seller to the Client.
4. Price and Payment
4.1 At the Seller’s sole discretion;
(a) The Price shall be as indicated on invoices provided by the Seller to the Client in respect of Goods supplied; or
(b) The Price shall be the Seller’s current Price, at the date of delivery of the Goods, according to the Seller’s current Price list ; or
(c) The Price of the Goods shall (subject to clause 4.2) be the Seller’s quoted price which shall be binding upon the Seller provided that the Client shall accept in writing the Seller’s quotation within thirty (30) days.
4.2 Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Seller’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation, correspondence or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.5 At the Seller’s sole discretion, for certain approved Clients payment will be due either seven (7), fourteen (14) or thirty (30) days following the date of the invoice.
4.6 At the Seller’s sole discretion, payment for approved Clients shall be due on 30th day of each month following the end of month in which the Goods are purchased or as per contracted trading terms.
4.7 If there are any delays due to the failure of the Client their sub-contractors or agent(s) to provide access to the site or the correct information to enable the Seller to carry out the Services then the Client shall be charged for the delays at Seller’s quoted rate. The Client shall also be responsible for all other expenses and costs incurred by the Seller due to delays caused by the Client their sub-contractors or agent(s).
4.8 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card, a surcharge of up to 4% may be applicable) or by direct credit, or by any other method as agreed to between the Client and Seller.
4.9 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent those taxes are expressly included in any quotation given by the Seller.
5. Delivery Of Goods / Services
5.1 Delivery of the Goods shall be made to the Client’s address. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Client at the Seller’s address.
5.2 Delivery of the Goods to a carrier, either named by the Client or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Client, is deemed to be a delivery of the Goods to the Client.
5.3 Where there is no agreement that the Seller shall send the Goods to the Client, delivery to a carrier at limited carrier’s risk at the expense of the Client is deemed to be delivery to the Client.
5.4 Goods delivered to site shall be at the Client’s risk and will be deemed to be delivered upon appearing on a delivery schedule.
5.5 The Client shall take delivery of the Goods tendered not withstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a) Such discrepancy in quantity shall not exceed 5% , and
(b) The Price shall be adjusted pro rata to the discrepancy.
5.6 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.7 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
6. Risk
6.1 If the Seller retains property in the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Client, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7. Client’s Disclaimer
7.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Client acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Client and shall not be transferable to any subsequent Client.
8. Defect / Returns
8.1 The Client shall inspect the Goods on delivery and shall within twenty four (24) hours of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.2 For defective Goods, which the Seller has agreed in writing that the Client is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods provided that :
(a) The Client has complied with the provisions of clause 8.1;
(b) The Goods are returned at the Client’s cost within fourteen (14) days of the delivery date;
(c) The Seller will not be liable for Goods which have not been stored or used in a proper manner;
(d) The Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonable possible in the circumstances.
8.3 The Seller may (in its discretion) accept the Goods for credit but this may incur a handling fee of 10 % of the value of the returned Goods plus any freight.
8.4 Goods made to special order, Client specification or non-catalogue items are under no circumstances acceptable for credit or return. Cancellation of orders for special or non-catalogue items will definitely not be accepted, once these orders are in production.
9. Warranty
9.1 Subject to the conditions of warranty set out in Clause 9.2 the Seller warrant that if any defect in any workmanship or product by the Seller becomes apparent and is reported to the Seller within twelve (12) years from the date of Service or any other Goods for which the warranty period has been defined at the time of application (time being of the essence) then the Seller will either (at the Seller's sole discretion) repair the defect or replace the workmanship/product.
9.2 The conditions applicable to the warranty given by Clause 9.1 are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
i) Failure on the part of the Client to properly maintain any Goods; or
ii) Failure on the part of the Client to follow any instructions or guidelines provided by the Seller; or
iii) Any use of any Goods otherwise than for any application specified on a quote or order form; or
iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent occupant, user or professional persons; or
v) Fair wear and tear, any accident or act of God.
(b) The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller's consent.
(c) In respect of all claims the Seller shall not be liable to compensate the Client for any delay in either replacing or repairing the workmanship/Product or in properly assessing the Client's claim. Any claims investigated by the Seller and found applicable under Clause 9.2, 9.3 or 9.4 and not covered by the warranty then the Client shall be charged at a rate of $72.00 GST inclusive per 30 minute block on-site. The Client shall also be responsible for all other expenses and costs incurred by the Seller due to access delays caused by the Client their sub-contractors or agent(s) in investigating such allegation, problems, faults or warranty claims shall be charged at a rate of $72.00 GST inclusive per 30 minute block on-site waiting time.
(d) The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the Sellers invoice monies due and payable has not been paid by the Client and honoured as per Clause 4.
(e) The Client expressly acknowledges and agrees that it has not relied upon any advice given by the Seller in relation to the suitability for any purpose of Goods supplied by us.
9.3 The warranty does not apply if:
(a) The shower is affected by any structural movement however caused;
(b) The shower is affected by any substrate movement however caused;
(c) Any damage is caused to the area treated or surrounding by neglectful, intentional or accidental acts;
(d) The treated area has been used for other activities contrary to its designed purpose intentional or otherwise;
(e) There are latent defects within the premises in reasonable proximity to the treated area at the time of, or which become apparent subsequent to, application of the product,
(f) An alteration or replacement of any fixture or fittings is undertaken subsequent to the original application of the product which in anyway detrimentally affects the treated area;
(g) Any plumbing, works or moisture have subsequently detrimentally affected the treated area;
(h) Any flooring, sheeting, substrate, materials or tile bonding arises which in anyway detrimentally affect the treated area
(i) Works are completed by person or persons other than the Seller or the Sellers agent, which detrimentally affect the treated area, after the application of the product; and
(j) The source of the leak is incorrectly diagnosed by person or persons other than the Seller or the Sellers agent before or after the application of the product; and
(k) Any pre-existing or subsequent tiling problem, relating either to the adherence of the tiles or the inherent quality of the tiles, arises which detrimentally affects the treated area; and
(l) A moulded shower or bath moves away from the walls; and
(m) A moulded shower or bath is affected by any twisting or deflection however caused.
(n) The shower has been used within twelve hours after service or as stated on the Seller’s after service notification.
9.4 The warranty does not cover
(a) Tiling, grout, bleed back or leaching, growth of mould, mildew and bacteria, periodic cleaning or maintaining grout integrity or the use of silicone or polyurethane sealants.
(b) Efflorescence and carbon calcimite formation or secondary formation.
(c) Any chipping, gouging, cracking or breakage of tiles, shower screen or any fixture, fittings and tap ware resulting from the service.
(d) The appearance of the shower including product and grout colour matching; and
(e) Staining, discoloration or degrading over time directly or indirectly as a result of cleaning products or personal care products, or secondary mould growth; and
(f) Variations in thickness or product application due to initial placement of tiles, lie, warping or lipping of the face surface; or
(g) Required diamond bur diameter to achieve optimum product adhesion.
9.5 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer's warranty.
10. Existing, Unseen or Resulting Damage.
10.1 Any area that has been affected in any way by termites, wet or dry rot, water damage, seepage or the general deterioration of age, the Seller will not be liable for any repair work and any repair work required be will be paid at the owner’s expense.
11. Intellectual Property
11.1 Where the Seller has designed or drawn Goods for the Client, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Client at the Seller’s discretion.
11.2 Conversely, in such a situation, where the Client has supplied drawings, the Seller in its sale conditions may look for an indemnity (the specifications and design of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller).
11.3 Where any designs or specifications have been supplied by the Client for manufacture, by or to the order of the Seller then the Client warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
11.4 The Client warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Client’s order.
12. Default & Consequences of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgment.
12.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all of the Seller’s nominees costs of collection.
12.3 Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller exercised its rights under this clause.
12.4 In the event that:
(a) Any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to meet its payments as they fall due; or
(b) The Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client; then without prejudice to the Seller’s other remedies at law
(i) The Seller shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) All amounts owing to the Seller shall, whether or not due for payment, immediately become payable
13. Title
13.1 It is the intention of the seller and agreed by the Client that property in the Goods shall not pass until: (a) The Client has paid all amounts owing for the particular Goods, and
(b) The Client has met all other obligations due by the Client to the Seller in respect of all contracts between the Seller and the Client, and that the Goods shall be kept separate until the Seller shall have received payment and all other obligations of the Client are met.
13.2 It is further agreed that:
(a)Until such time as ownership of the Goods shall pass from the Seller to the Client the Seller may give notice in writing to the Client to return the Goods or any of them to the Seller. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease.
(b) If the Client fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
(c) The Client is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller.
(d) The Client shall not deal with the money of the Seller in any way which may be adverse to the Seller.
(e) Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership of rights in respect of the Goods shall continue.
(f) The Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
(g)The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Client to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
(h) The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client.
(i) Until such time the Client has the Seller’s authority to convert the goods into other products and if the goods are so converted, the parties agree that the Seller will be the owner of the end products.
14. Security and Charge
14.1 Notwithstanding anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a)Where the Client and /or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and /or the Guarantor agree to mortgage and /or charge all of their joint and /or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and /or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in
accordance with this clause and /or its sub-clauses, the Client and /or Guarantor shall indemnify the seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c)To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Client and /or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Client’s and /or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registrable or not) including such other terms and conditions as the Seller and /or the Seller’s nominee shall think fit in his / her/its /their absolute discretion against the joint and /or several interest of the Client and /or the Guarantor in any land, realty or asset in favour of the Seller and in the Client’s and /or Guarantor’s name as may be necessary to secure the said Client’s and /or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
15. Cancellation
15.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
16. Privacy Act 1988
16.1 The Client and /or the Guarantor/s agree for the Seller to obtain from a credit-reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Seller.
16.2 The Client and /or the Guarantor/s agree that the Seller may exchange information about Client and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Client;
(b) To notify other credit providers of a default by the Client;
(c) To exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and
(d) To assess the credit worthiness of Client and /or Guarantor/s.
16.3 The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(l)(h) Privacy Act 1988).
16.4 The Client agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Client and Seller or required by law from time to time:
(a) Provision of Services & Goods;
(b) Marketing of Services and or Goods by the Seller, its agents or distributors in relation to the Services and Goods;
(c) Analysing, verifying and /or checking the Client’s credit, payment and /or status in relation to provision of Services /Goods;
(d) Processing of any payment instructions, direct debit facilities and /or credit facilities requested by Client; and (e) enabling the daily operation of Client’s account and /or the collection of amounts outstanding in the Client’s account in relation to the Services and Goods.
16.5 The Seller may give, information about the Client to a credit reporting agency for the following purposes:
(a) To obtain a consumer credit report about the Client; and or
(b) Allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17. Unpaid Seller’s Rights to Dispose Of Goods
17.1 In the event that:
(a) The Seller retains possession or control of the Goods; and
(b) Payment of the Price is due to the Seller; and
(c) The Seller has made demand in writing of the Client for payment of the Price in terms of this contract; and
(d) The Seller has not received the Price of the Goods, then, whether the property in the Goods has passed to the Client or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Client the loss to the Seller on such disposal.
18. Building and Construction Industry Security of Payments Act 1999
18.1 At the Seller’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
18.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
19. Lien& Stoppage in Transit
19.1 Where the Seller has not received or been tendered the whole of the price, or the payment has been dishonoured, the Seller shall have:
(a) A lien on the goods;
(b) The right to retain them for the price while the Seller is in possession of them;
(c) A right of stopping the goods in transit whether or not delivery has been made or ownership has passed; and
(d) A right of resale,
(e) The foregoing right of disposal, provided that the lien of the Seller shall continue despite the commencement of proceedings or judgement for the price having been obtained.
20. General
20.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 All Goods supplied by the Seller are subject to the laws of New South Wales, and the Seller takes no responsibility for changes in the law which affect the Goods supplied.
20.3 The Seller shall be under no liability whatever to the Client for any indirect loss and /or expense (including loss of profit) suffered by the Client arising out of a breach by the Seller of these terms and conditions.
20.4 In the event of any breach of this contract by the Seller the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Services.
20.5The Client shall not set off against the Price amounts due from the Seller.
20.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.7 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the seller notifies the Client of such change.
20.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
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