These Terms, as amended or replaced from time to time, apply to any and all Goods and/or Services supplied or to be supplied to the Customer, or any third party on the Customer’s behalf, notwithstanding any provision to the contrary which may appear on an order form or other communication issued by the Customer.
1.1 Credit Application Form means a credit application form in a form nominated by the Supplier from time to time.
1.2 Customer means the Person to whom a Quotation is addressed and includes its successors and assigns.
1.3 Goods means the goods the subject of an Order.
1.4 GST means the goods and services tax under the Goods and Services Act 1999 (‘GST Act’) and terms used in these Terms have the meanings contained in the GST Act.
1.5 Insolvency Event means (a) a receiver, receiver and manager, administrator or liquidator being appointed to the Customer, (b) an application made for the Customer to be wound up, dissolved or administered, (c) the Customer entering into any arrangement, compromise or assignment for the benefit of creditors, (d) the Customer ceasing, suspending, or threatening to cease or suspend the conduct of all or material part of its business, or dispose of or threaten to dispose of a material part of its assets, (e) the Customer being, or under legislation is presumed or taken to be, insolvent, (f) any form of legal process being levied or enforced against the Customer or its assets and not discharged or stayed within 14 days, or (g) a security interest becoming enforceable or being enforced.
1.6 Invoices means the Supplier’s invoices for Goods and/or Services provided.
1.7 Order means the acceptance of a Quotation in whole or in part by the Customer.
1.8 PPSA means the Personal Property Securities Act 2009.
1.9 Quotation means an estimate (verbal or written) issued by the Supplier to the Customer for the sale of Goods and/or supply of Services.
1.10 Services means the services, if any, to be supplied with the Goods the subject of an Order.
1.11 Supplier means PROBOND ARCHITECTURAL PTY LTD (ABN 98 632 432 805) of 19-22 Success Way, Corio VIC 3214.
1.12 Premises means the property nominated by the Customer where the Good are to be delivered (if applicable) and/or where the Services are to be performed.
1.13 Price means the amount to be invoiced for Goods and/or Services the subject of an Order.
1.14 Terms means these terms and conditions.
2.1 These Terms, together with a Quotation and an accompanying Order, constitute the entire contract between the Supplier and the Customer (‘Contract’). To the extent of an inconsistency between these Terms and an Order, these Terms shall prevail.
2.2 No communication (written or verbal) between the Supplier and the Customer shall modify or vary these Terms unless such modification or variation is in writing and signed by the Supplier.
2.3 If the Customer constitutes more than one person, these terms and conditions bind each of them jointly and severally.
2.4 No Quotation shall constitute an offer and an Order from a Customer shall constitute an offer only by the Customer to the Supplier.
2.5 If any provision of these Terms shall be declared or held to be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions of these Terms shall not be affected, prejudiced or impaired and the offending provision shall be deemed as severed from these Terms.
2.6 The Supplier may assign, license or contract out all or any part of its rights and obligations under a Contract at any time without the Customer’s consent but the Supplier acknowledges that it remains at all times liable to the Customer with respect to those rights and obligations.
2.7 A failure by the Supplier to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision.
2.8 These Terms (or any part of these Terms) shall be available at www.probond.com.au/terms-conditions and may be amended, modified, added to or deleted at any time by the Supplier. Any such amendment, modification, addition or deletion to these Terms shall be legally effective from the date the amended Terms are displayed at www.probond.com.au/terms-conditions.
3. PLACING ORDERS
3.1. Each Order placed by the Customer with the Supplier will be considered valid when placed verbally or in writing.
3.2 Any person who places an Order warrants that he or she is duly authorised by the Customer to do so. By placing an Order the Customer is deemed to have read and understood these Terms.
3.3. All prices are based on taxes and statutory charges current at the time a Quotation is provided. Should these vary from the date of a Quotation and the date an Order is placed, the difference will become the responsibility of the Customer.
4.1. A Quotation provided by the Supplier shall expire 30 days after the date the Quotation is provided however the Supplier reserves the right to vary any Price quoted by the Supplier prior to any Order being accepted by it.
4.2 Subject to other rights under these Terms, at the Supplier’s sole discretion the Price shall be either (a) as detailed in invoices provided by the Supplier to the Customer in respect of Goods and/or Services supplied the subject of an Order, or (b) the Supplier’s price as detailed in the Quotation the subject of an Order.
4.3 The Supplier reserves the right to change the Price in the event of a variation to an Order.
5. ABILITY TO SUPPLY
5.1 Any obligation of the Supplier to supply Goods and/or Services is subject to its ability to secure labour, materials and other services for the manufacture and supply of the Goods and/or Services.
5.2 The Supplier shall not be liable in any way for failure to deliver the Goods and/or supply the Services within the stated time and the Customer may not reject the Goods and/or Services on account of such failure to deliver within the stated time.
5.3 The Supplier shall not be liable for any failure to supply or deliver the Goods and/or Services due to strikes, fires, explosions, flood, riot, lock-out, injunction, interruption of transportation, accidents, war, governmental action or other circumstances beyond the Supplier’s control.
5.4 If for any reason the Supplier is unable to perform its obligations under a Contract, then the Supplier may at any time by notice in writing to the Customer terminate the Contract whereupon the Contract will be at an end and any deposit money paid by the Customer will be refunded by the Supplier and save for the recovery of the deposit neither party will have any claim against the other.
6. SUPPLY & DELIVERY OF GOODS AND/OR SERVICES
6.1. The Supplier reserves the right to (a) decline any request for the supply of Goods and/or Services by the Customer, (b) cancel or postpone the delivery of Goods and Services, and/or (c) cancel or postpone any attendances or appointments in its sole discretion, the subject of an Order. Without limiting this clause, the Supplier shall not supply any Goods and/or Services until an Order has been placed with, and accepted by, the Supplier.
6.2. The Customer represents that it is either the owner of the Premises or has authority of the Premises owner for delivery of the Goods and/or performance of the Services to or at the Premises.
6.3 Delivery of the Goods shall be deemed to be complete when the Goods are collected by the Customer or are delivered to the Customer to the Premises or to the carrier as nominated by the Supplier and/or Customer.
6.4 In the event that the Customer is not in attendance at the Premises, the Supplier may leave the Goods and the Supplier shall not be responsible for any claims, damages, costs or expenses arising or resulting therefrom including any claim that the Goods were not delivered.
6.5 The Customer shall be responsible to the Supplier for an additional costs (including storage and handling) incurred by the Supplier as a result of the Customer’s failure to take delivery of the Goods at a time and location specified by the Customer.
6.6 The Customer is responsible for ensuring that the Goods are secured at the Premises and warrants to be responsible for any loss, damage or theft of the Goods delivered by the Supplier to the Premises.
6.7 The Customer grants full and safe access to the Supplier, its servants and agents to the Premises (including, but not limited to, at no cost to the Supplier all necessary utilities, services, resources, equipment, materials and information) to enable it to deliver the Goods and/or perform the Services. The Customer agrees that the Supplier may charge additional fees in the event the Supplier’s performance is interfered with or no proper or safe access is provided to the Supplier.
6.8 The Supplier shall not be liable for any delay in the delivery of Goods and/or Services due to inclement weather, failure of the Customer to comply with these Terms, or variations to the Goods and/or Services to be provided requested by the Customer
6.9 The Customer is responsible to obtain all necessary permits and permission to deliver the Goods and/or perform the Services, including but not limited to clearly identifying that part of the Premises for the delivery of the Goods and/or performance of the Services.
6.10 Unless specified by the Supplier to the contrary in writing, the Supplier does not warrant that it will be capable of providing the Goods and/or Services at any specific time that may be requested by the Customer.
6.11 Subject to otherwise complying with its obligations under the Contract, the Supplier shall exercise its independent discretion as to its most appropriate and effective manner of providing the Goods and/or Services and of satisfying the Customer’s expectations of those Goods and/or Services.
6.12 Nothing in these Terms shall affect the Supplier’s right to exercise its own judgment and to utilise its skills as it considers most appropriate in order to achieve compliance with its obligations under the Contract.
6.13 The Supplier may agree to provide, on request from the Customer, additional Goods and/or Services not included or specifically excluded in a Quotation or Order. In such an event, the Supplier shall be entitled to increase the Price for the Goods and/or Services. Additional Goods and/or Services includes, but is not limited to, alterations, amendments, and any additional attendances or visits required by the Supplier.
7. PAYMENT, TITLE & THE PPSA
7.1 Goods are at the Customer’s risk from delivery but title in Goods supplied to the Customer will not pass to the Customer until all monies owing with respect to those Goods, together with all other monies owing by the Customer to the Supplier, has been fully paid. Until such time the Customer has custody of the Goods as fiduciary agent and bailee of the Supplier.
7.2 Where the Customer does make payment in respect of specific Goods, the Supplier may treat such payment as having deemed to have been made firstly in respect of Goods which are no longer in the possession of the Customer and, secondly in respect of Goods still in the Customer’s possession (as the Supplier determines).
7.3 Until Goods have been paid for in full:
(a) the Customer must store the Goods in such a manner as to show clearly that they are the property of the Supplier;
(b) the Customer may sell the Goods in the ordinary course of its business but only as fiduciary agent of the Supplier. In such an event, the Customer receives all proceeds associated with such sale (or insurance proceeds in the case Goods are stolen, damaged or lost) in trust for the Supplier and must keep the proceeds in a separate bank account until the liability to the Supplier is fully discharged;
(c) must keep all Goods insured against theft, damage, and destruction (and if the Customer fails to insure the products, the Supplier may do so and invoice the Customer for the cost of insurance); and
(d) the Customer agrees not to sell, assign, charge or otherwise encumber or grant any interest over any obligations which any third party may owe to the Customer as a result of the use, manufacture or resale of the Goods.
7.4 If any payment (including by way of cheque) proffered by the Customer, or by any third party in payment of the Price, is dishonoured, the Supplier may (a) refuse to supply any further Goods and/or Services until payment is made and received in full (including all associated bank fees and similar charges incurred by the Supplier as a consequence), and (b) treat the dishonour as a repudiation of the Contract and elect to terminate the Contract in which case the Supplier is entitled to compensation for all loss or damage suffered by the Supplier as a consequence.
7.5 The Customer irrevocably authorises the Supplier at any time, to enter any premises (including the Premises) upon which the Goods are stored to enable the Supplier to (a) inspect the Goods, or (b) to retake possession of the Goods where the Customer has breached these Terms.
7.6 This clause applies notwithstanding any credit facility that may exist between the parties.
7.7 The Customer acknowledges that the PPSA applies to all transactions pursuant to these Terms (or otherwise) and grants a security interest in all present and after acquired Goods as security for all monies now and in the future owing by the Customer to the Supplier.
7.8 The Customer agrees to do all such things and sign all such documents as are necessary and reasonably required to enable the Supplier to acquire a perfected security interest in all Goods supplied, and to provide such information as is required to enable registration of a Purchase Money Security Interest (‘PMSI’) under the PPSA.
7.9 The Customer acknowledges that a PMSI is granted in priority to all other creditors by the Customer in favour of the Supplier and in all Goods that are supplied from time to time as security for the Customer’s obligations to the Supplier.
7.10 The Customer indemnifies the Supplier for any liability for any costs of registration, maintenance, enforcement or discharge or security interest and such other costs and expenses as the Supplier may incur.
7.11 The Customer agrees to waive or exclude such sections of the PPSA as the Supplier may require, subject to those sections being capable of exclusion.
8. CREDIT FACILITY
8.1 Customers are either a Non-Account Customer or an Account Customer.
8.2 A Non-Account Customer must make full payment of the Price upon provision of Goods and/or performance of Services (unless the Supplier has otherwise agreed in writing).
8.3 Subject to the following clauses under the heading ‘Credit’, an Account customer must make full payment of the Price within thirty (30) days from the date of issue of invoice(s) by the Supplier for Goods and/or Services (unless the Supplier has otherwise agreed in writing).
8.4. A Customer may apply to become an Account Customer by completing and providing to the Supplier a Credit Application Form.
8.5 The Customer acknowledges and agrees that these Terms comprise and form part of the Credit Application Form.
8.6 Credit will only be granted at the sole discretion of the Supplier and the Customer acknowledges that the Supplier has no obligation to grant, or continue to provide any credit facility to the Customer. The Customer is not entitled to any credit facility until it receives written notification from the Supplier to that effect and the Supplier may, at any time, reduce, vary or terminate any credit facility. Any credit limit or other facility that may apply from time to time in respect of any credit facility does not constitute a provision of these Terms or any Contract between the Supplier and the Customer.
8.7 Without limiting the above, the Supplier reserves the right to reduce, vary or terminate withdraw any credit facility upon any breach by the Customer of these Terms, any Contract between the Supplier and the Customer, or upon the Customer becoming subject to an Insolvency Event.
8.8 In the event that the Supplier reduces, varies or terminates any credit facility, the Customer agrees that any and all monies owing on account to the Supplier shall become immediately due and payable.
9. GOODS AND SERVICES TAX
9.1. The Customer acknowledges and agrees that, to the extent that the supply of Goods and/or Services by the supplier to it is subject to GST, the Customer shall, unless the Price expressly states that GST is included, pay an additional amount to the Supplier equal to GST with respect to such supply. Additionally, the Customer must pay to the Supplier all other charges, duties, imposts, taxes and similar amounts payable in relation to the supply of all Goods and/or Services by the Supplier to the Customer.
9.2 The Supplier shall deliver to the Customer a tax invoice for the supply of all Goods and/or Services in a form which complies with the GST Act.
10.1 The Customer is not entitled to defer, offset or withhold payment in whole or in part for any reason unless agreed to by the Supplier in writing.
10.2 If at any time any monies are overdue, then at the option of the Supplier all monies (including any account balance pursuant to a credit facility granted to the Customer) shall become immediately due and payable by the Customer.
10.3 The Supplier may charge interest on all overdue accounts calculated on a daily basis until paid in full at the rate prescribed by the Penalty Interest Rates Act 1983 and to charge for any expenses incurred in collecting or attempting to collect any overdue monies, including any debt collector’s expenses incurred, or to be incurred.
10.4 The Supplier may charge an administration fee for any payment made by credit card and the amount to be charged will be advised to the Customer.
10.5 A certificate signed by an authorised representative of the Supplier shall be prima facie evidence of the amount of indebtedness of the Customer to the Supplier at that time.
10.6 The Customer is liable to pay to the Supplier and the Supplier may recover in full from the Customer all costs, expenses and disbursements incurred and/or payable by the Supplier (including debt collection agency fees and legal costs of a solicitor and own client basis) arising from or as a result of the Supplier’s exercising or enforcing or seeking or exercise or enforce a right under these Terms, and in particular, in collecting or attempting to collect amounts due to the Supplier. Such costs, expenses and disbursements may be recovered by the Supplier from the Customer as a liquidated debt. The Supplier may apply payments received from the Customer firstly to any costs, expenses and disbursements, then to interest and then to other amounts owed by the Customer.
10.7 The Customer shall have no right of set-off in any claim or proceeding brought by the Supplier against the Customer for any default in payment and the Customer acknowledges that the Supplier may produce these Terms in any claim by the Customer for set-off.
11. FITNESS FOR PURPOSE
11.1 The Customer must ensure that the Goods are suitable for their intended purpose and warrants and represents that the Goods, the subject of an Order, are both suitable for their intended purpose and shall conform with all legal requirements associated with that intended purpose.
11.2 The Customer is responsible to ensure that the Supplier is made aware in writing of any specific requirements pertaining to the Goods prior to any Order placed. The Supplier shall not be liable for any damage, loss or injury suffered as a consequence of any inaccurate or insufficient information concerning such requirements as provided by the Customer in writing.
11.3 The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is expressly stated in the Quotation the subject of the Goods and/or Services, and the Customer acknowledges and agrees that it has not relied on, nor will it rely on, any representation or warranty with respect to the merchantable quality, description, quality, suitability or fitness for purpose of the Goods unless expressly provided for in the Quotation.
11.4 The Customer must inspect the Goods on delivery to ensure that the Goods conform to the Customer’s requirements. The Supplier shall not be liable for any shortage, discrepancy, defect, incorrect specification, unsuitability (or similar) unless the Customer has notified the Suppler within 7 days of delivery.
11.5 The Supplier shall not be liable for damage, loss or injury suffered as a result of any person failing to follow instructions relating to Goods, modifying the Goods, failing to appropriately maintain or store them or using them for a purpose not disclosed to the Supplier in writing in accordance with these Terms.
11.6 The Customer agrees that any variations in colour or texture of any material comprising all or part of the Goods shall not constitute a defect.
11.7. The Supplier shall not be liable for any delay in delivery of the Goods and/or the Services made by a third party or third party manufacturer.
12. LIMITATION OF LIABILITY
12.1 The only conditions, guarantees and warranties which are binding on the Supplier in respect of the state, quality, condition, suitability or fitness of the Goods and/or the Services are those imposed and required to be binding by statute (including the Australian Consumer Law) which cannot be excluded. All other conditions, guarantees and warranties whether express or implied by law in respect of the state, quality or condition of the Goods and/or the Services which may apart from this clause be binding on the Supplier are hereby expressly excluded.
12.2 To the extent permitted by law, the liability, if any, of the Supplier arising from the breach of such conditions, guarantees or warranties shall, at the Supplier’s option, be limited to and completely discharged in the case of the Goods, either the replacement or the repair by the Supplier of the Goods (or the granting of credit in favour of the Customer up to the value of the Goods) and in the case of the Services, by the supplying of the Services again. The Customer acknowledges and agrees that the Supplier has no liability to any person for any loss or damage of any kind whatsoever including without limitation, for any costs associated with replacing or rectifying the Goods other than the Supplier’s actual costs associated with same, or any indirect or consequential loss (including loss of profits, business, revenue, opportunity, goodwill, or loss arising from any failure, breakdown, defect or deficiency in the Goods and/or the Services) even if due to the negligence of the Supplier arising out of or in connection with the Goods and/or the provision of the Services.
12.3 The Customer must bear the costs of returning to the Supplier any Goods in respect of which a warranty claim is made.
13. TERMINATION AND CANCELLATION
Cancellation by the Supplier
13.1 Without limiting other rights provided for in these Terms, the Supplier may cancel any Order, or cancel delivery of Goods the subject of an Order, at any time before delivery by written notice to the Customer. On the giving of such notice the Supplier shall repay to the Customer any sums paid in respect of the Price. The Supplier shall not be liable for any loss or damage or consequential loss or damage whatever arising from such cancellation.
13.2 The Supplier may cancel all or any part of any Order which remains unfulfilled and all amounts owing to the Supplier by the Customer shall, whether or not due for payment, become immediately payable in the event that (a) any monies due and payable to the Supplier become overdue, or (b) the Customer becomes subject to an Insolvency Event.
Cancellation by Customer
13.3 The Customer is not entitled to cancel any Order once accepted by the Supplier unless expressly agreed to by the Supplier in writing.
13.4 In the event that the Customer cancels any Order (unless as permitted in accordance with these Terms) the Customer shall be liable to the Supplier for all loss or damage suffered by the Supplier as a consequence including, but not limited to, any loss of profits, costs, charges, expenses or similar.
The Supplier shall not be required to effect insurance in relation to Goods and/or Services comprising all or part of an Order. The Customer is solely responsible to effect whatever insurance cover it requires at its own cost and expense.
15. GOVERNING LAW & JURISDICTION
These Terms shall be construed according to the laws of Victoria and all disputes arising as and between the Supplier and the Customer shall be determined by the Courts in that State.
16.1 The Supplier collects the personal information of the Customer to enable it to provide a Quotation for its Goods and/or Services and to provide those Goods and/or Services to the Customer. The Supplier may disclose the personal information of the Customer to third parties that assist in in providing the Goods and/or Services.
16.2 Where Goods and/or Services are supplied, or intended to be supplied, to the Customer on credit the Customer authorises the Supplier, its employees and agents to make such enquiries as it deems necessary to investigate the creditworthiness of the Customer including (without limitation) making enquiries with trade referees, financial institutions, credit providers and credit reporting agencies and the Customer authorises the disclosure of all such information obtained to the Supplier. . With limiting this clause the Customer agrees to:
(a) the Supplier obtaining a credit report containing personal credit information about the Customer;
(b) the Supplier exchanging information concerning the Customer with trade referees, financial institutions and/or credit providers; and
(c) the Supplier being provided a consumer credit report to collect all overdue payments.
17. ENTIRE AGREEMENT
17.1 These Terms (and any Contract as and between the Supplier and the Customer) constitute the whole agreement made between the Supplier and the Customer.
17.2 These Terms can only be amended in writing signed by each of the parties.
17.3 The Customer expressly waives all prior discussions, communications, negotiations and representations that may have been made by the Supplier that are in conflict with these Terms (and any Contract as and between the Supplier and the Customer).
VERSION DATED: March 2019