TERMS AND CONDITIONS OF SALE
These Online Terms and Conditions of Sale (these “Terms & Conditions” ) govern the online purchase of any paints, stains, finishes, coatings, painting tools, applicators, supplies, varnishes, and other goods and services (collectively, “Products” ) by you from Wattyl Australia Pty. Ltd trading as Wattyl (together with its successors, affiliates and subsidiaries, collectively, “Wattyl”) in Australia using any website, portal, or online service that posts these Terms & Conditions (collectively the “Website”). In these Terms & Conditions, “you” and “your” refers to the individual or entity who has ordered Products from Wattyl (“we”, “us”, “our”).
Our 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. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
The rights given to you in these Terms & Conditions are provided by Wattyl. Wattyl’s contact details are below:
Telephone: [02 8867 3333]
Any rights given to you under these Terms & Conditions are in addition to your rights and remedies under the Australian Consumer Law or any other law in relation to the Products to which these Terms & Conditions relate that cannot be excluded, restricted, or modified by agreement (“Non-Excludable Laws”).
PLEASE READ CAREFULLY — In these Terms & Conditions you may waive or give up certain legal rights and agree to certain limitations of liability and exclusions of damages. If you do not agree with these Terms & Conditions, do not order any Products using the Website.
- PRODUCT ORDERS. Applicable law may limit the quantities of some Products that you may purchase or may require that you provide proof of identity or age in order to make a purchase. If so, such requirements are a condition of purchase and/or delivery. You agree that your order is an offer to buy, under these Terms & Conditions, all Products that you have selected, added to your cart, and that are listed in your online order. We reserve the right to reject any offer and our acceptance is subject to and conditioned upon your payment in full, fulfilment of any applicable legal requirements (e.g., age verification), your agreement to be legally bound by these Terms & Conditions, and our confirmation as set forth in the next section. We may choose not to accept any orders in our sole discretion. We require that all purchases of Products be made by individuals who are not minors and who can legally enter into binding contracts (typically persons 18 years of age or older, depending on where you live).
- ORDER CONFIRMATION AND CANCELLATION.
(a) Confirmation. After we receive your online order, we will send you an order confirmation e-mail with your order number, a description of the Products you have ordered, and information on your selected delivery option. Acceptance of your order and the formation of the contract of sale between Wattyl and you will not take place until Wattyl reviews and processes your order. When your order has been reviewed and processed you will receive another email to confirm that this has been completed.
(b) Delivery Delays and Redelivery. Orders for tinted Products (“Custom Orders”) are custom orders that are only made by Wattyl following an order being made online and so cannot be cancelled by you once the order is placed online. You agree that we may cancel any online order at any time, even if it has been accepted by Wattyl and even if you have received an email order confirmation, if: (i) we believe that the order violates applicable law, including any law that requires proof of identity or age in order to purchase a particular Product or laws limiting the sale of certain products in defined jurisdictions; (ii) we discover an error related to your order or if we are not able to fill the order to the specifications (e.g., size, colour, sheen, and/or base) you have selected (in which case, we may contact you and offer an alternative, but are not obligated to do so except as required by applicable law). These rights are additional to any rights you may have under the Australian Consumer Law or any Non-Excludable Laws.
(c) Custom Orders. Custom Orders cannot be cancelled by you and you agree to pay for all Products that are Custom Orders in full in accordance with these Terms & Conditions (subject to any rights you may have under the Australian Consumer Law or any Non-Excludable Laws). Whilst every effort is made to display as accurately as possible the colour of our Products, we cannot guarantee that your monitor’s display of any colour will accurately reflect the colour of the goods on delivery. If in doubt you are advised to examine actual colour swatch samples of the colour or try test pots before placing your order.
- PRICES, TAXES AND PAINT LEVY.
- The price charged for a Product, and applicable fees, will be the price and fees in effect at the time your order is placed and will be specified during the checkout process and in your order confirmation e-mail. Prior to submitting your payment information, you will have the opportunity to review Product prices, taxes, and fees.
- All prices of the products are inclusive of Goods and Services Taxes. Price increases will only apply to orders placed after such changes are posted on the Website.
- All prices posted on the Website are subject to change without notice. Prices and Product descriptions are subject to correction for error. As permitted by applicable law, we are not responsible for any pricing, typographical, photographical or other errors in our Website information. If we discover errors, we may contact you and give you the option to cancel or revise your order, and we reserve the right to cancel any orders arising from any such errors.
- Size and Volume. For paint Products displayed on the Website, the Product size listed on the website is the size of the Product container. The actual volume of the Product purchased may be smaller than the Product size that is listed on the Website so that we can leave room in the container to add tint in the store. Payment for the Products shall be made in Australian dollars.
- Paint Levy. We charge a paint levy on nominated products. The paint levy is currently 15 cents per litre (plus GST) of the following products: Interior/exterior architectural paint, deck coatings, floor paints, primers, undercoats & sealers, stains, shellacs, varnishes, urethanes (single component) wood coatings and packaging. Please see the Paintback website for further details: www.paintback.com.au . We reserve the right to change the levy and products subject to the levy at any time.
- TERMS OF PAYMENT.Your credit card, will be authorized for the full amount of the sale when the online checkout process is completed. If we cancel your order for any reason the credit hold will be removed. It may take several days before the credit hold is released. Wattyl shall not be liable for any costs or other liabilities associated with such a continuing hold. If your credit card expires prior to the delivery of your Products, we may notify you and require that you enter the credit card number again with the new expiration date.
We accept VISA, MasterCard, for all online purchases. If you use a credit card to order Products from this website, you must use an Australian credit card with an Australian billing and shipping addresses. Wattyl will only deliver to addresses located in Australia You represent and warrant, at the time your online order is placed and delivered to your selected location, that (a) the credit card information you provided to us is true, correct, current and complete; (b) you are duly authorized to use such credit card for the purchase of Products from us; and (c) you will pay charges incurred by you in connection with your purchase of the Products at the prices specified in our order confirmation email, or, in the case of taxes as indicated based on your delivery location. If for any reason we are unable to process your payment, we reserve the right to cancel your order.
- DELIVERY, TITLE AND RISK OF LOSS. Wattyl will deliver your Products to your specified location. Please note that Wattyl is only able to deliver to physical addresses only and not to PO Box addresses. Delivery will occur on the date and time scheduled by Wattyl via email or phone, please note that orders placed between Monday and Thursday will be dispatched during standard business hours, within 24 hours of the order being placed. For orders placed between Friday and Sunday, these will be processed and dispatched on the following Monday. For assistance in tracking a delivery, contact our online customer service as set forth in Section 15(a); however, it is your responsibility to monitor the status of your order. You are responsible for being present at the specified delivery location at the time of Delivery and ensuring that there is someone able to sign for the Products. If you are not present at the delivery location, Wattyl may return your order to the retail store designated at the time of checkout. In that case, we will call you to reschedule your delivery, and if we cannot reach you, we may cancel your order and as set forth in Section 4. You warrant that either you or your representative shall have the right to accept delivery of your order, are at least 18 years of age or older, and upon request, will provide (i) a signature acknowledging receipt of your order, (ii) appropriate identification, and (iii) a copy of your order confirmation email. You acknowledge that you will be responsible for re-ordering any items that are returned to us as undeliverable. Title and risk of loss for the Products pass upon delivery to the address you specified, regardless of whether you receive the delivery in-person or the Products are left at your delivery address. You undertake to accept responsibility for providing safe and sufficient storage facilities for the Products upon delivery and Wattyl shall not be responsible for any damage caused to the Products once they have been delivered. The time of delivery is not of the essence, and Wattyl shall not be liable or responsible for any costs, charges, expenses, damages or for any penalty, liquidated or otherwise, for late or delayed delivery. All delivery dates, including any delivery dates specified in your order confirmation email, are approximate and are not guaranteed. We will call you if we need to cancel your order or reschedule your delivery for any reason, and if we cannot reach you to reschedule your delivery after reasonable attempts to do so, we will cancel your order in accordance with Section 4(b) and provide you with a refund as set forth below.
- PRODUCTS RETURNED FOR CREDIT.Except for any Custom Orders or any other Products designated on the Website, or applicable Additional Terms, as custom or non-returnable, Wattyl will accept a return of the Products ordered online for a refund of the purchase price, provided any such return is made within thirty (30) days of the date of your online order as reflected in the Wattyl automated order tracking system. These rights are additional to any rights you may have under the Australian Consumer Law or any Non-Excludable Laws. In order to return Products, you must contact Wattyl Customer Service Team either by telephone 02 8867 3333 or email email@example.com, to notify them of the return and to obtain a reference number for the return. Products can then be returned to the Wattyl Paint Centre notified by the Wattyl Customer Service Team or returned by post to Wattyl. Products are returned in their original, unopened condition together with proof of purchase. Bundled items need to be returned with all the components. It is your responsibility to make arrangements for the return of Products that were delivered, and you acknowledge and agree that you are responsible for the cost of returning the Products and Wattyl will not reimburse you for any expenses associated with the return of a delivery order. YOU ACKNOWLEDGE AND AGREE THAT CUSTOM ORDER PRODUCTS, INCLUDING, WITHOUT LIMITATION THOSE PRODUCTS THAT ARE MANUFACTURED OR MIXED TO YOUR PARTICULAR SPECIFICATIONS USING OUR ONLINE TOOLS, CANNOT BE RETURNED OR REFUNDED. Refunds shall be issued to the credit card which was used to purchase the Products and are ordinarily processed by Wattyl within thirty (30) business days of acceptance of the returned Products. However, it may take longer for the refund to be processed by your bank, credit card company, or other financial institution. Wattyl shall not be liable for any costs or other liabilities associated with any delay by your bank, credit card company, or other financial institution in processing your refund. Refunds will be issued to/in the original form of payment. For Products returned to a Wattyl Paint Centre, subject to the Products being returned in an unopened saleable condition and the credit card used to purchase the Products being presented, the refund shall be processed by Wattyl at the Wattyl Paint Centre.
- LIMITED WARRANTIES; DISCLAIMERS.Wattyl warrants to you that, as of the date on which your Products are delivered, and for a period of ninety (90) days thereafter, those Products that are manufactured by Wattyl shall (i) conform to Wattyl’s then-current quality control specifications for manufacturing such Products; and (ii) be subject to any label warranty affixed to the container or packaging of such Products. These rights are additional to any rights you may have under the Australian Consumer Law or any non-Excludable Laws. As permitted by applicable law, the above warranties extend only to you and not to any other individual or entity. For Products that are not manufactured by Wattyl, the original manufacturer’s warranty, if any, shall apply to the extent assignable by Wattyl. As permitted by applicable law, except for an express written limited warranty signed by an authorized representative of Wattyl, Wattyl makes no other warranties, either in writing or orally, including on the Website or in any marketing brochure or promotional literature. SUBJECT TO THE AUSTRALIAN CONSUMER LAW AND ANY OTHER NON-EXCLUDABLE LAW, WATTYL SPECIFICALLY DISCLAIMS ALL OTHER IMPLIED WARRANTIES, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. As permitted by applicable law, the warranties set forth in this provision cease to be effective if you fail to use the Products sold hereunder in a safe and reasonable manner and in strict compliance with all written instructions and/or specifications from Wattyl or the third-party manufacturer of such Products.
- Replacement Products.. Any replacement Products will be delivered to the retail store specified in your original order confirmation email, provided that (i) prompt notice of any defect is given by you to us within the warranty period specified above, and (ii) upon your return of the defective Products to the retail store an inspection thereof reveals to our satisfaction that your claim is valid under the terms of this warranty. It is your responsibility to arrange for the return of defective Products to the retail store specified in your order confirmation email and for the delivery of any replacement Products, which may be subject to an additional delivery fee.
- Referrals. From time to time Wattyl, or one of our customer service specialists in our online store, may make a recommendation of, or a referral to, a painting applicator trained or experienced in applying the Products. In addition, Wattyl may make available technical service personnel to provide consultations and advice to you regarding the application and use of the Products. As permitted by applicable law, YOU ACKNOWLEDGE AND AGREE THAT ANY TECHNICAL OR OTHER ADVICE FURNISHED (WITH THE EXCEPTION OF THE PAID COLOUR CONSULTANCY SERVICE), OR RECOMMENDATIONS OR REFERRALS MADE, BY WATTYL OR ITS REPRESENTATIVES ARE PROVIDED WITHOUT CHARGE AND ON AN “AS IS” BASIS. WATTYL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING ANY SUCH RECOMMENDATIONS, REFERRALS, CONSULTATIONS OR ADVICE AND ACCEPTS NO LIABILITY ARISING THEREFROM, NOTWITHSTANDING ANY REPRESENTATIONS MADE BY WATTYL OR ITS REPRESENTATIVES TO THE CONTRARY.
- To the maximum extent permitted by law and subject to Section 10(b) below:
- Wattyl excludes all liability for any loss, however caused (including by our negligence), suffered or incurred by you in connection with a breach of these Terms and Conditions or the supply of the Products to you in excess of the total value of the online order which is the subject of the claim, whether or not Wattyl was aware of the possibility of such loss to you when these Terms and Conditions were entered into; and
- notwithstanding any other clause of these Terms and Conditions, Wattyl excludes all liability whatsoever to you for any consequential loss relating in any way to the supply of the Products to you.
- If the Australian Consumer Law or any other Non-Excludable Law confers certain rights, guarantees or remedies on you which cannot be excluded, restricted or modified except in limited circumstances, Wattyl’s liability for breach of any such right, guarantee or remedy is limited to one of the following:
(i). replacing the Products or supplying equivalent products;
(ii). repairing the Products;
(iii). paying the cost of replacing the Products or of acquiring equivalent products; or
(iv). paying the cost of having the Products repaired.
- FORCE MAJEURE.Wattyl will not be liable or deemed to be in breach of these Terms & Conditions for any delay or failure to perform any or all of its obligations by reason of fire, explosion, accidents, pandemic, hurricanes, tornados, flood, unusually severe or abnormal weather, war or threat of war, riots or civil commotion, acts of terrorism, acts of any governmental authority or agent, interruption of or delay in transportation of Products, labour disputes, shortage of materials or raw materials, inability to obtain raw materials at a reasonable price, acts of God or any other circumstance or event beyond the reasonable control of Wattyl. If we are rendered unable by force majeure to carry out any or all of our obligations under these Terms & Conditions, we will use reasonable efforts to give notice to you by email, and upon the giving of such notice the obligations of Wattyl shall be suspended or terminated as may be necessary under the circumstances.
- PRODUCT MODIFICATIONS.Except to the extent expressly stated in a written agreement entered into between Wattyl and you, all Products that are sold to you using the Website and our online store are sold for end-use by you and, as permitted by applicable law, may not be resold, relabelled, or repackaged. We reserve the right to change the formulation or method of manufacture of the Products from time to time in our sole discretion and we will have no obligation to notify you before or after any such change in the Products.
- COMMUNICATIONS AND NOTICES.
- Customer Service and Notices. Customer Service can be contacted at 132 101 Legal notices must be delivered to us by you as set forth in subsection (e) below and not to our customer service representatives. Wattyl may provide notice to you under these Terms & Conditions by any reasonable method, which you agree includes: (a) sending an email to you; or (b) with respect to any prospective changes to these Terms & Conditions by posting to the Wattyl website.
- Telephone Communications. Your telephone communications with Wattyl, including calls with our online customer service representatives and any of our other customer service providers or independent contractors, are routinely monitored and/or recorded. You expressly consent, on behalf of yourself and other users of your phone number, to being monitored or recorded. By providing us with a mobile or other phone number as part of your online registration or during a service call, you expressly authorise us to contact you regarding your account for non-telemarketing communications, via text message or telephone, including the use of pre-recorded or auto-dialled calls, using that number.
- Email Communications. You agree that we may send emails to you using the e-mail address that you used to create your Wattyl online account or the address you used to place your order for Products. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current. We assume no responsibility for issues resulting from e-mail notification failures. You consent to receiving promotional messages to the emails you provide to us. You can unsubscribe to our promotional emails by following the instructions on those emails; provided, however, you may receive transactional emails after unsubscribing (e.g., emails responding to an inquiry or related to your order).
- Mail Delivery. You may provide notice to Wattyl under these Terms & Conditions by personal delivery, overnight courier or registered or certified mail to Online Order Response Team Level 3/2 Burbank Place, Baulkham Hills, NSW 2153. We may update the address for notices to us by posting a notice on the Website. Notices provided by personal delivery will be effective upon receipt by us. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
- Subject to applicable law, including the Australian Consumer Law and any non-Excludable Law, and the express terms of these Terms & Conditions or any applicable Additional Terms, after you accept delivery of a Product, you shall be solely responsible for the proper transportation, handling, exportation, storage, processing, alteration, use, application, and/or disposal of such Product. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold Wattyl harmless from and against any and all actual, alleged, or threatened claims, liabilities, and costs and expenses (including attorneys’ fees) arising out of or resulting from (a) any transportation, handling, exportation, storage, processing, alteration, use, application and/or disposal of a Product by your and/or your applicator; and (b) any actual or alleged breach by you of, or any inaccuracy in, any representation, warranty, covenant or undertaking made by you in these Terms & Conditions.
- REGULATED PRODUCTS.You acknowledge that (a) the Products are subject to various federal, state, territory, municipal and local laws, rules and regulations, (b) the Products will be delivered the address provided by you, and (c) the Products are labelled for end-use within the jurisdiction of your Australian delivery address. You may not export or otherwise ship, use, or apply the Products outside of the jurisdiction of that delivery address. The Products are intended for your use only, and as permitted by applicable law, are not for resale.
- COMPLIANCE WITH LAWS.You agree to comply with all applicable laws, rules and regulations, including, without limitation, all, laws, rules and regulations, including VOC use and sales restrictions, in any way relating to your purchase, ownership, transportation, receipt, handling, storage, processing, alteration, use, application, and disposal of the Products once you have accepted delivery of the Products.
- RESPONSIBLE PRACTICES.
You acknowledge that Wattyl has made available on its Website product literature and information (including Safety Data Sheets, Product Data Sheets, and Environmental Data Sheets) that include product ingredient composition, health, safety, fire and environmental hazards and warnings, first aid and accidental spill measures, handling, storage, protection and exposure guidelines related to the Products available for purchase on the Website. You may find the specific information for each product by using the Data Sheets search tool on the Wattyl Website. You agree (i) to receive this information in electronic form and to familiarise yourself with all such information; (ii) adopt and follow safe handling, storage, transportation, use, treatment and disposal practices with respect to the Products, including, without limitation, special care and practices relating to your use of the Products; (iii) instruct your employees, independent contractors, agents and customers of the precautions and safe use practices required in connection with the unloading, handling, storage, use, transportation and disposal of the Products (including, without limitation, information contained in Wattyl’s most current Safety Data Sheets or Product Data Sheets); and (iv) comply with applicable safety and environmental laws and take action necessary to avoid spills or other dangers to persons, property or the environment. In the event the Products are intended for professional use only, you represent and warrant to Wattyl that you are a professional user experienced and knowledgeable regarding how to properly and safely handle, store, dispose of, and use such Products.
- DISPUTE RESOLUTION.
- Any and all disputes arising out of or related to your purchase or use of the Products, your use of the Website, these Terms & Conditions, or the breach thereof shall be resolved by the courts located in New South Wales, Australia.
- You or Wattyl may seek injunctive or other relief in any court of competent jurisdiction regarding any intellectual property dispute between the parties. You hereby irrevocably consent to jurisdiction and venue of the courts of New South Wales, Australia with respect to any such injunctive or other relief. The parties acknowledge that their respective rights in their intellectual property are of a special, unique, extraordinary character, giving those rights peculiar value, the unauthorized use, disclosure, or loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
- APPLICABLE LAW.We both agree that these Terms & Conditions constitute a written agreement executed by both you and Wattyl under applicable law. These Terms & Conditions shall be governed by the laws of New South Wales, Australia, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
- GENERAL TERMS.
- Assignment. You may not assign any rights or delegate any obligations under these Terms & Conditions without Wattyl’s prior written consent. Any assignment or delegation, or attempted assignment or delegation, in contravention of the foregoing shall be null and void. Wattyl may assign or delegate any of its rights or obligations hereunder. If any provision of these Terms & Conditions is so broad as to be unenforceable, such provision shall be interpreted to be only as broad as is enforceable.
- Severability. If any provision of these Terms & Conditions, including those relating to Dispute Resolution, is declared invalid or unenforceable for any reason other than over-breadth, the offending provision shall be severed, and the remainder of the Terms & Conditions will be deemed to be binding and enforceable will be modified so as to maintain the essential benefits of the bargain between the parties hereto to the maximum extent possible, consistent with law and public policy.
- No Waiver. The failure of Wattyl to enforce any of the provisions of these Terms & Conditions will not be construed to be a waiver of any provisions hereunder nor will any such failure prejudice the right of Wattyl to take any action in the future. Any waiver must be made in writing and signed by an authorized representative of Wattyl. These Terms & Conditions do not and are not intended to confer any rights or remedies upon any person other than you.
TERMS AND CONDITIONS OF SALE
These Terms and Conditions apply to any goods supplied by the Company to the Customer except where they are varied by notice in writing by the Company to the Customer prior to the supply of any goods.
In the following Terms and Conditions of Sale the “Company” shall mean the entity selling the goods whose name appears on the other side of this document and its related bodies corporate. Within the meaning of Section 50 of the Corporation Act and the “Customer” shall mean the entity purchasing the goods the subject of these terms and conditions of sale.
2. BINDING TERMS AND CONDITIONS
The “Contract”‘ means any contract between the Company and the Customer for the supply of goods (which contract will include these Terms and Conditions) and must be in writing and accepted by the Company. The only contractual terms which are binding upon the Company are those set forth herein or otherwise agreed to in writing by the Company and those, if any, which are imposed by law and which cannot be excluded by these Terms and Conditions. These Terms and Conditions and any contract including them shall be governed by the law of the State or Territory in which the goods are sold and the Company and the Customer submit to the Jurisdiction of the Courts of that State or Territory. Any legal proceedings in relation to these Terms and Conditions must be held in the capital city of the said State or Territory.
3. STATUS OF PRICE LIST
The Price List shall not be construed or operate as an offer or obligation to sell but shall be an invitation to treat only and the Company reserves the right to accept or reject in its absolute discretion any orders which may be received by it.
4. PRICE CHANGE
The prices shown in the Price List are subject to alteration without notice.
5. DELIVERY CHARGES
Delivery charges on orders required by overnight transport, air freight or other special delivery shall be for the account of the Customer.
a. The Company shall not be obliged to supply goods to the Customer if
i. the Customer defaults in its payment obligations hereunder, and/or
ii. the Customer becomes bankrupt or goes into liquidation or goes into voluntary administration or is unable to pay its debts as they fall due
b. The Company shall not be responsible to the Customer if it is unable to supply any goods due to reasons beyond its reasonable control (including but not limited to acts of God, acts of any government, war or other hostility, national or International disaster, the elements, fire, explosion, power failure, equipment failure, strikes or lockouts, inability to obtain necessary supplies and raw materials, transportation delay, inability to obtain government or quasi-government approvals, permits or licenses and the like and other “‘force majeure”‘ occurrences
c. If the Company is unable to supply the Customer’s total order these Terms and Conditions will apply to the supply of all or part of the order
7. BACK ORDERS
Back orders will be supplied to the Customer at the prices and on the terms and conditions applying at the time the original order is accepted by the Company.
The Customer shall inspect the goods forthwith upon delivery and may, but only within 7 days from the date of delivery, give written notice to the Company of any matter or thing by reason whereof the Customer alleges that the goods are not in accordance with the contract If the Customer fails to give such notice then to the extent permitted by statue the goods shall be deemed to have been accepted by the Customer and the Customer shall pay for the goods in accordance with the provisions hereof.
9. PAYMENT TERMS
Payment for goods sold by the Company to the Customer shall be tendered no later than the expiration of the calendar month following the month of sale.
10. TIMING OF PAYMENT
Payment shall be deemed to have been made;
a. if cash is tendered – on the date it is tendered: and
b. if a cheque (bank or otherwise) or other negotiable instrument is tendered – on the date upon which the full amount of the stated or drawn value of such cheque or other negotiable instrument is negotiated and cleared by the Company’s bankers
11. TIME OF ESSENCE
In respect of the performance of all of the Customer’s obligations under this contract, time shall be of the essence.
12. SANCTIONS FOR LATE PAYMENT
If the Customer defaults in making payment to the Company in accordance with these Terms and Conditions. the Company may in its absolute discretion (a) charge the Customer interest calculated on the portion of the Customer’s account overdue from time to time at the rate of 2% per month from the date on which such default arose:
a. require the Customer to reimburse the Company for all collection costs including legal costs incurred by the Company calculated on a solicitor and own client basis as a consequence of the Company instructing its solicitor to provide advice to it in connection with each default and/or to institute and conduct any and all such recovery process as shall in the absolute discretion of the Company be appropriate in the circumstances; and
b. the whole sum then owing by the Customer to the Company for all goods sold by the Company to the Customer, shall immediately become due and payable and the Customer shall not thereafter be entitled to purchase goods on credit from the Company unless the Company has agreed to same in writing, in which case, unless a contrary intention is shown in such agreement, the payment obligations contained herein apply
13. APPLICATION OF PAYMENTS
Any payments tendered by the Customer to the Company shall be applied as follows
a. firstly as reimbursement for any collection costs incurred by the Company in accordance with Clause 12(b) hereof;
b. secondly in payment of any interest charged to the Customer in accordance with Clause 12(a) hereof; and
c. thirdly in satisfaction or part satisfaction of the oldest portion of the Customer’s account
All returns of goods must be approved by the Company. Authorised returns must be freight prepaid. The Company will credit returned goods only if they are in saleable and otherwise merchantable condition and fit for the purpose for which they were made. The Company reserves the right to charge a handling charge equivalent to 10% of the price of goods returned unless the Customer is a “consumer”‘ for the Trade Practices Act 1974 or similar State or Territory legislation.
15. RETENTION OF TITLE
a. All the goods delivered to the Customer by the Company remain the property of the Company until all debts owing to the Company by the Customer have been paid, and notwithstanding that payments may be made for the purpose of settlement of specifically designated claims. Until payment of all debts owing as aforesaid, the Customer may sell the goods in the ordinary course of business, as the Company’s fiduciary agent (but the Customer shall not hold itself out as such), and may for the purpose of any such sale part with possession of the goods
b. These provisions apply notwithstanding any arrangement under which the Company provides credit to the Customer To the extent there is any inconsistency. these provisions prevail
c. Until payment of all debts owing to the Company, the Company may, without prejudice to any of its other rights, without prior notice, re-take and resume possession of any goods which remain the Company’s property and, by its servants and agents, enter upon the Customer’s premises, or any other place where the goods may be for that purpose if
i. there is any breach of any contract between the Company and the Customer;
ii. the Customer commences to be wound up or is placed under official management or a receiver, or a receiver and manager, or a voluntary administrator is appointed in respect of the Customer, its undertaking or property or any part thereof, or an encumbrancer, by itself or by an agent, takes possession of the Customer’s undertaking or property or any part thereof
iii. the Customer parts with possession of goods or any of them otherwise than by way of sale to a customer in the ordinary course of business.
d. The Company may recover the price of the goods by such action as it considers appropriate including proceedings to appoint a liquidator to the Customer. if the goods are not paid within the Company’s usual credit terms, or any separate arrangement for credit made by the Company with the Customer, notwithstanding that property in the goods has not passed to the Customer
16. RISK AND INSURANCE
Upon delivery to the Customer or into the Customer’s custody (whichever is the sooner) the goods shall be at the risk of the Customer and the Customer shall at its own cost, insure the goods (in its name and in the name of the Company) against all risks for which a prudent owner would insure his goods and for their full replacement value The Customer shall upon request provide a copy of the insurance policy to the Company.
17. EXCLUSION OF IMPLIED CONDITIONS AND WARRANTIES
The only conditions and warranties which are binding on the Company in respect (If the state, quality or condition of the goods supplied by it to the Customer and/or in respect of advice, recommendation(s), information or services supplied by It, Its employees, servants or agents to the Customer regarding the goods, their use and application are those Imposed and required to be binding by statue (including the Trade Practices Act 1974) and to the extent permitted thereby, the liability if any of the Company arising from the breach of such conditions or warranties shall, at the Company’s option, be limited to and completely discharged In the case of the goods by either the supply by the Company to the Customer of equivalent goods or the replacement by the Company of the goods supplied to the Customer and in the case of further advice, recommendation(s), information or services and otherwise by the supplying of the advice, recommendations, information or services again. Otherwise all other conditions and warranties whether express or implied by law in respect of the state, quality or condition of the said goods which may apart from this clause, be binding on the Company are hereby expressly excluded and. negatived, Except to the extent provided In this clause 17 the Company shall have no liability (Including liability negligence) to any, person for any loss or damage consequential or otherwise howsoever suffered or Incurred by any such person In relation to the goods and/or advice, recommendation(s), information or services and without limiting the generality thereof, In particular any loss or damage consequential or otherwise howsoever suffered or Incurred by any such person caused by or resulting directly or indirectly from any failure, defect or deficiency of whatsoever nature or kind of or In the goods and/or advice, recommendation(s), information or services.
All the goods are manufactured from high grade materials and to rigid specifications, but since the Company has no control over the conditions under which the goods or goods within recommended coating systems are applied, used, stored, transported or handled, the Customer is advised to test the goods thoroughly before adapting them to its own use.
19. BATCH NUMBER
All of the goods carry on the label or container a batch number. It is acknowledged by the Customer that should a problem arise during or after application of a good or good(s) within a coating system which required technical investigation by a Company laboratory, all batch numbers pertaining to each good MUST be provided, together with a description of the good(s) and system(s) used, prior to any laboratory investigation being instigated. Where a batch number cannot be supplied the Company reserves the right to charge a non-refundable laboratory investigation fee of $500 which fee is payable prior to the commencement of any laboratory work. It is also acknowledged by the Customer that on receipt of a written recommendation and subsequent procedure the onus is on the Customer to apply the goods recommended or goods recommended within a coating system and that such applications are to be carried out in accordance with the Company’s technical data sheet and correct coating procedures.
The Customer irrevocably authorises the Company to make such enquiries as it deems necessary to investigate the creditworthiness of the Customer from time to time including (but without limiting the generality of the foregoing) the making of enquiries of persons nominated as trade referees, the bankers of the Customer or any other credit providers (collectively the “Information sources”) and the Customer hereby authorises the information sources to disclose to the Company such Information concerning the Customer which is within their possession and which is requested by the Company. The Company may disclose personal information relating to the Customer’s credit history with the Company to
a. credit reporting agencies; and
b. organisations to which the Customer has listed the Company as a trade referee
The Customer may gain access to their personal information held by the Company upon request.
21. VIENNA SALE CONVENTION
The United Nations Convention on Contracts for International Sale of Goods (Vienna 1980) known as the Vienna Sales Convention does not apply to goods supplied by the Company to the Customer under any contract nor do any terms or conditions express or implied by the Vienna Sales Convention form part of the contract.