Terms of Use

TERMS AND CONDITIONS OF SALE & INSTALLATION

The following standard terms and conditions (Terms) apply where Acculine supplies Goods or Services to a Buyer.

1. DEFINITIONS

In these Terms:

“Acculine” means Acculine Pty Ltd trading as Acculine Architectural Systems (ACN 139 715 352) and its agents, servants and employees and any related bodies corporate as defined in the Corporations Act 2001 (Cth) (if such related body corporate is named as the party making or accepting the Buyer’s order of Goods and/or Services);

“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any other equivalent legislation (such as the Fair Trading Acts (or equivalent legislation) in each State and Territory);

“Buyer” means the person or entity who is buying the Goods or Services from Acculine, the details of which are set out in the Order/Contract.;

“Confidential Information” has the meaning given to it in clause 15;

“Consequential Loss” means any loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity or any other loss or damage suffered by a party or any other person which is indirect or consequential;

“Consumer” has the meaning given to it in section 3 of the Australian Consumer Law;

“Contract” means the contract between the Buyer and Acculine, which consists of the Credit Application, these Terms, the Guarantee and Indemnity (if applicable) and all Orders for Goods and Services placed by the Buyer to Acculine;

“Credit Application” means an application for credit completed by the Buyer, in a form approved by Acculine;

“Defective Goods” means Goods that are defective in design, performance or workmanship;

“Defective Services” means Services that are defective in performance;

“Goods” means all products supplied by Acculine to the Buyer;

“GST” means any goods and services tax and any replacement or similar tax;

“GST Law” means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Insolvency Event” means the happening of any of these events:

  • (a) a party suspends payment of its debts generally, is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
  • (b) a party enters into, or resolves to enter into, any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
  • (c) a receiver, receiver and manager, liquidator, provisional liquidator, administrator, trustee or similar official is appointed over any of the assets or undertakings of a party, an application or order is made for the winding up or dissolution of a party, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a party, except for the purpose of an amalgamation or reconstruction which has the other party’s prior consent;
  • (d) a party goes bankrupt; or
  • (e) a party ceases, or threatens to cease, to carry on a business;

“Invoice” means an invoice issued by Acculine to the Buyer setting out the amount to be paid by the Buyer;

“Loss” means all actions, claims, costs (including legal costs on an indemnity basis), damages, expenses, interest, liabilities and losses (whether direct, indirect, special, consequential or otherwise);

“Order” means any order for Goods and/or Services placed by the Buyer with Acculine;

“Premises” means the premises specified in the Order/Contract where the Goods are to be delivered and/or the Services are to be performed;

“Price” means the price for the supply of the Goods or Services as provided for in clause 9;

“PPSA” means the Personal Property Securities Act 2009 (Cth); and

“Services” means the installation services (if any) performed by Acculine in respect of the Goods and any other services that Acculine agrees to perform on behalf of the Buyer.

2. GENERAL

  • (a) The Contract:
    • (i) supersedes and excludes all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods and Services including, but not limited to, those relating to the performance of the Goods or Services or the results that ought to be expected from using the Goods or Services; and
    • (ii) overrides any quotes, invoices, accepted or modified Orders/Contracts and the Buyer’s terms and conditions of purchase (if any), exchanged between the parties whether or not such documents expressly provide that they override this Contract or any part of it.
  • (b) Unless Acculine otherwise agrees in writing, the Contract comprises the only terms which shall apply to all Goods or Services supplied by Acculine.

3. ORDERS

  • (a) Acculine has sole discretion to accept or reject any Order, any part of an Order, or any variation or modification of an Order, requested by the Buyer.
  • (b) Acculine has sole discretion to accept or reject any Order cancellation request by the Buyer. If a cancellation request is accepted by Acculine, the Buyer will be liable for any Loss incurred by Acculine in respect of that Order (including, without limitation, payment for any Goods ordered by Acculine from its suppliers relating to that Order or any costs incurred by Acculine as at the date of cancellation in respect of the Services).

4. CLAIMS AND LIMITATION OF LIABLIITY

  • (a) The Buyer must:
    • (i) promptly inform Acculine of all complaints or claims relating to any of the Goods or Services;
    • (ii) not admit liability on behalf of Acculine in respect of any complaint or claim relating to any of the Goods or Services;
    • (iii) not resolve or settle any complaint or claim relating to any of the Goods or Services which may result in Acculine incurring any liability (whether to a customer, the Buyer or any other person); and
    • (iv) deal promptly with all complaints or claims relating to any of the Goods or Services, which will not result in Acculine incurring any liability.
  • (b) Subject to clause 4(c):
    • (i) all conditions, warranties and implied terms, whether statutory or otherwise, are excluded in relation to the Goods and Services; and
    • (ii) the Buyer releases Acculine from any liability for legal costs and disbursements and, without limitation, any indirect or consequential expense, loss or damage, loss of profits, revenue, use, expectation or opportunity, wasted expenditure, lost production or similar losses suffered by the Buyer under or in connection with the Contract.
  • (c) The Australian Consumer Law provides Consumers with a number of consumer guarantees, as that term is used in the Australian Consumer Law (Consumer Guarantees) that cannot be excluded or limited. The limitations of liability set out in these Terms are therefore subject to, and will not apply to the extent that they limit or exclude, such Consumer Guarantees applicable to Consumers. However where the Australian Consumer Law permits Acculine to limit the remedies available to it for a breach of a Consumer Guarantee, Acculine hereby limits its remedies to such Consumers, in the case of Goods, to the repair or replacement of the Goods, the supply of equivalent Goods or the payment of the cost of having the Goods repaired or replaced or having equivalent Goods supplied and, in the case of Services, to supplying the Services again or paying the cost of having the Services supplied again.

5. SERVICES

  • (a) Acculine will perform the Services (if any) at the Premises.
  • (b) If for any reason the Buyer is not ready, willing or able to receive the Services on the date specified in the relevant Order/Contract (or as otherwise agreed by the parties), Acculine can issue an Invoice to the Buyer in respect of such Services.
  • (c) The Buyer must provide Acculine with uninterrupted access to the Premises to perform the Services. If, during the process of installation some or all of the Goods are affixed, attached or secured to land or any object at the Premises, the Goods are deemed not to be a fixture and may be removed by Acculine at any time in accordance with these Terms.
  • (d) The Buyer must ensure that the Premises are sufficiently clean, secure and safe to enable Acculine to perform the Services and must ensure at all times that it has appropriate occupational health and safety processes and policies in place at the Premises which comply with all applicable laws.

6. DELIVERY

  • (a) Acculine will use all commercially reasonable efforts to deliver the Goods and supply the Services for which it has accepted an Order/Contract to the Premises by the delivery date specified in the Order/Contract..
  • (b) Acculine may deliver the Goods and supply the Services by separate instalments. Each separate instalment will be invoiced and paid in accordance with clause 9.
  • (c) Delivery of the Goods and supply of the Services to a third party nominated by the Buyer is deemed to be delivery or supply to the Buyer for the purposes of these Terms.
  • (d) The failure of Acculine to deliver the Goods or supply the Services does not entitle either party to treat these Terms or the Contract as repudiated.
  • (e) Except where Acculine’s obligation is a Consumer Guarantee, Acculine is not liable for any Loss whatever due to a failure by Acculine to deliver the Goods or supply the Services (or any of them) promptly or at all.

7. ACCEPTANCE

  • (a) The Buyer must, as soon as possible or within 2 business days after delivery of the Goods or the performance of the Services, check whether the Goods or Services are Defective Goods or Defective Services when delivered and/or performed.
  • (b) Goods and Services will be considered to have been delivered and supplied in good condition, with due skill and care, within a reasonable time, fit for purpose and to the satisfaction of the Buyer unless the Buyer gives Acculine notice of the Defective Goods within 2 Business Days after delivery or supply of the Goods or Services.
  • (c) In relation to the delivery of Goods, if the Buyer gives Acculine notice under clause 7(b), it must:
    • (i) preserve the Defective Goods in the state in which they were delivered for 10 Business Days after it gives Acculine notice; and
    • (ii) at Acculine’s request, return the Defective Goods at the Buyer’s cost or as agreed within 10 Business Days after the delivery date in the condition in which they were delivered and with all packaging material in as new condition as is reasonably possible in the circumstances.

8. RISK AND TITLE

  • (a) Unless otherwise agreed in writing, all risk in and to the Goods purchased shall pass to the Buyer when the Goods are delivered or installed at the Buyer’s premises (as relevant). Legal and equitable title in and to the Goods shall not pass to the Buyer until payment in full for all Goods is made.
  • (b) Acculine’s rights under this clause 8 secure (i) Acculine’s right to receive the price of the Goods and Services and (ii) all other amounts owing to Acculine under any other contract.
  • (c) All payments received from the Buyer must be applied by Acculine in accordance with section 14(6)(c) of the PPSA.
  • (d) Until full payment in cleared funds is received by Acculine for all Goods supplied by it to the Buyer, as well as all other amounts owing to Acculine by the Buyer under any other contract, (i) subject to (ii), the Buyer shall store the Goods separately and in such a manner that they are clearly identified as the property of Acculine and ensure that the Goods are properly stored, protected, readily identifiable and insured; (ii) the Buyer must not sell the Goods except in the ordinary course of the Buyer’s business; (iii) in addition to any rights Acculine may have under Chapter 4 of the PPSA, Acculine shall be entitled (in the event of a breach or anticipated breach of these Terms or the Contract by the Buyer) at any time until title in and to the Goods passes to the Buyer to demand the return of the Goods and shall be entitled without notice to the Buyer and without liability to the Buyer to enter any premises occupied by the Buyer (or any other premises where the Buyer is holding the Goods) in order to search for and remove the Goods and for this purpose the Buyer irrevocably licenses Acculine to enter such premises and also indemnifies Acculine from and against all Loss suffered or incurred by Acculine as a result of exercising its rights under this clause. If there is any inconsistency between Acculine’s rights under this clause 8(d)(iii) and its rights under Chapter 4 of the PPSA, this clause 8(d)(iii) prevails; (iv) the Buyer acknowledges and warrants that Acculine has a security interest (for the purposes of the PPSA) in the Goods and any proceeds described in this clause 8 until title passes to the Buyer in accordance with this clause 8. The Buyer must do anything reasonably required by Acculine to enable Acculine to register its security interest, with the priority that Acculine requires and to maintain that registration; and (v) the security interest arising under this clause 8 attaches to the Goods when the Buyer obtains possession of the Goods and the parties confirm that they have not agreed that any security interest arising under this clause 8 attaches at any later time.

9. PRICE & PAYMENT

  • (a) At Acculine’s discretion, the Price of the Goods and Services will be;
    • (i) Acculine’s current price at the date of the delivery of the Goods or the provision of the Services according to Acculine’s current price list; or
    • (ii) Acculine’s quoted price which will be binding on Acculine for a period of 30 days from the date of quotation and which may be accepted by the Buyer, by written notice to Acculine, at any time within those 30 days.
  • (b) Time for payment for the Goods and Services is of the essence. Payment for Goods and Services must be made in cash within [30] days (or as otherwise agreed in writing by Acculine) after the Invoice is sent to the Buyer.
  • (c) Acculine may withhold delivery of the Goods or the supply of the Services until the Buyer has paid for them in full, in which case payment must be made on or before the delivery / supply date (as applicable).
  • (d) Unless prices quoted by Acculine are stated to include any sales, value added, GST or similar tax which may apply, these taxes are payable by the Buyer in addition to the quoted prices.
  • (e) The Buyer must pay the Price for Goods or Services supplied to the Buyer by cheque, payable to Acculine or by credit card (plus any charges that may be applicable), by direct debit or in any other way that Acculine directs.
  • (f) Payment by cheque or other negotiable instrument is not regarded as received until it is cleared.
  • (g) Without prejudice to any other rights or remedies of Acculine, if the Buyer fails to make (whether in full or in part) any payment required under these Terms on or before the due date for payment, then:
    • (i) Acculine may charge the Buyer interest on the unpaid amount at [2]% per annum above the average of the most recent prime rate, indicator rate, or reference rate (however described) for business overdraft published by Commonwealth Bank of Australia; and
    • (ii) such interest will accrue from the date payment was due to the date payment is made, will be calculated daily and capitalised monthly and must be paid by the Buyer upon demand by Acculine.

10. GST AND OTHER TAXES AND DUTIES

Notwithstanding any other clause in the Contract, to the extent that any supply made under or in connection with the Contract is a taxable supply (as defined by the GST Law), the Buyer must pay to Acculine, in addition to the consideration provided for under these Terms for that supply (unless it expressly includes GST) an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The Buyer must pay to Acculine the additional amount at the same time as the consideration to which it is referable. The Buyer is responsible for paying any other duties, taxes or charges, including any stamp duty (if applicable), in relation to the Goods.

11. TERMINATION

  • (a) Acculine may terminate:
    • (i) the terms of credit provided to the Buyer;
    • (ii) any Order placed by the Buyer; or
    • (iii) the Contract in its entirety, by written notice to the Buyer if the Buyer:
      • (A) breaches these Terms in a material respect and, in the reasonable opinion of Acculine, the breach:
        • (I) cannot be remedied; or
        • (II) can be remedied, but is not remedied by the Buyer within 5 Business Days after Acculine gives the Buyer notice of the breach; or
      • (B) suffers an Insolvency Event.
  • (b) The Buyer must, within 5 Business Days after the date of expiry or termination:
    • (i) pay Acculine all amounts it owes Acculine, whether due at that time or not; and
    • (ii) return all Confidential Information to Acculine.

12. FORCE MAJEURE

  • (a) Acculine is not liable for any failure to perform any of its obligations under these Terms as a result of any event beyond its reasonable control including, without limitation, where Acculine is prevented or hindered from manufacturing, delivering, installing or supplying the Goods as a result of any strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, products, equipment, facilities or services from usual suppliers on usual terms, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network. In such circumstances, Acculine may suspend performance of any obligations under these Terms while the event continues. Acculine shall not incur any liability to the Buyer in respect of such suspension.
  • (b) If any of the above events occur for more than 30 days, Acculine may, without liability, terminate any affected Order and/or the Contract immediately by notice in writing to the Buyer.

13. INDEMNITY

The Buyer indemnifies Acculine against any Loss which Acculine suffers, incurs or is liable for in connection with the Contract including, but no limited to:

  • (a) any act or omission of the Buyer;
  • (b) any breach of the Contract by the Buyer; and
  • (c) enforcing any security interest arising in connection with the Contract.

14. GENERAL LIEN

In addition to any right of lien to which Acculine may be entitled under the common law, Acculine shall be entitled to exercise a general lien over all items in its possession belonging to the Buyer until the Buyer has paid in full for all Goods supplied by Acculine to the Buyer.

Acculine may in its sole discretion sell any item that is subject to a lien, provided that Acculine shall pay to the Buyer any surplus proceeds that are realised by it from a sale of any such items after discharging in full all monies outstanding to Acculine in respect of unpaid Goods and all reasonable costs of sale incurred by Acculine.

15. CONFIDENTIAL INFORMATION

  • (a) In this clause 15, Confidential Information means confidential information, trade secrets, know-how, scientific, technical, product, market or pricing information relating to the Goods or Services or Acculine’s business.
  • (b) The Buyer is authorised to use the Confidential Information for the sole purpose of using or selling the Goods or Services supplied under these Terms and must not otherwise use or disclose any Confidential Information.

16. SEVERANCE

If any provision of the Contract or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall, so far as possible, be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of the Contract shall not in any way be affected or impaired.

17. VARIATION AND ASSIGNMENT

The Contract may be varied by agreement between the parties in writing only. The Buyer may not assign its rights under the Contract without Acculine’s prior written consent.

18. GOVERNING LAW

The Contract is governed by the law of the State of Victoria. Acculine and the Buyer submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia.

19. WAIVER

Waiver by Acculine of a breach of the Contract or of any right or power arising on a breach of the Contract must be in writing and signed by Acculine. A right or power created or arising on a breach of the Contract is not waived by any failure to exercise or delay in exercising, or a partial exercise of, that or any other right or power.

20. NO RIGHT TO OFFSET

No amount owing, whether present or future, actual, contingent or prospective and on any account whatsoever by the Buyer to Acculine may be offset against any amount owing whether present, future, actual, contingent or prospective of the Buyer to Acculine hereunder or on any other account whatsoever.

21. INTELLECTUAL PROPERTY

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

22. CONFIDENTIALITY & PPSA

Subject to section 275(7) of the PPS Act, neither party will disclose information of the kind mentioned in section 275(1) of the PPSA.

23. ENFORCEMENT OF SECURITY INTEREST

If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interest created under the Contract, the Buyer agrees that the following provisions of the PPSA will not apply:

  • (i) section 95 (notice of removal of accession), to the extent that it requires Acculine to give a notice to the Buyer;
  • (ii) section 121(4) (enforcement of liquid assets – notice to Grantor);
  • (iii)section 130 (notice of disposal), to the extent that it requires Acculine to give a notice to the Buyer;
  • (iv)paragraph 132(3)(d) (contents of statement of account after disposal);
  • (v) subsection 132(4) (statement of account if no disposal);
  • (vi)section 135 (notice of retention);
  • (vii)section 142 (redemption of collateral); and
  • (viii) section 143 (reinstatement of security agreement).

24. NOTICES UNDER THE PPSA

Acculine does not need to give the Buyer any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.

25. FURTHER ASSURANCES

If at any time:

  • (a) Acculine determines that the PPSA applies, or will at a future date apply, to the Contract or any of the transactions contemplated by the Contract; and
  • (b) in the reasonable opinion of Acculine, the PPSA adversely affects or would adversely affect the security position, or the rights of Acculine under or in connection with the Contract or the Goods or compliance with the PPSA is necessary or advisable for Acculine to maintain a first priority perfected security interest in the Goods or any other personal property of yours under applicable law, then the Buyer must, upon Acculine’s request, cause the Contract and/or the security interest or ownership interests created under the Contract, to be registered with the applicable registry in accordance with and to the extent possible under the PPSA and must cause all other filings and recordings necessary or advisable under the PPSA and all such other action (including amending the Contract) required under the PPSA to be effected and taken, in order to maintain, protect and perfect the respective right, title and interests of Acculine thereunder.

All costs and expenses arising as a result of actions taken pursuant to this clause 25 will be for the account of the Buyer.

26. BENEFIT OF CONTRACT

Acculine holds the benefit of the Contract for itself and on trust for each of its agents, servants and employees and any related bodies corporate as defined in the Corporations Act 2001 (Cth).