Jolen Trading Pty ATF J&H Allen Family Trust T/A Creative Timbers – Terms & Conditions of Trade
1.1 “Creative Timbers” shall mean Jolen Trading Pty ATF J&H Allen Family Trust T/A Creative Timbers its successors and assigns or any person acting on behalf of and with the authority of Jolen Trading Pty ATF J&H Allen Family Trust T/A Creative Timbers.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Creative Timbers to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by Creative Timbers to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Creative Timbers to the Client.
1.5 “Services” shall mean all Services supplied by Creative Timbers to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between Creative Timbers and the Client in accordance with clause 3 of this contract.
2.1 Any instructions received by Creative Timbers from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Creative Timbers shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Creative Timbers.
2.4 The Client shall give Creative Timbers not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Creative Timbers as a result of the Client’s failure to comply with this clause.
3. Price And Payment
3.1 At Creative Timbers’ sole discretion the Price shall be either:
(a) as indicated on invoices provided by Creative Timbers to the Client in respect of Goods supplied; or
(b) Creative Timbers’ quoted Price (subject to clause 3.2) which shall be binding upon Creative Timbers provided that the Client shall accept Creative Timbers’ quotation in writing within thirty (30) days.
3.2 Creative Timbers reserves the right to change the Price in the event of a variation to Creative Timbers’ quotation.
3.3 At Creative Timbers’ sole discretion a deposit may be required.
3.4 At Creative Timbers’ sole discretion
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Client’s shall be due thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices.
3.5 At Creative Timbers’ sole discretion time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due either seven (7), fourteen (14) or thirty (30) days following the date of the invoice.
3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to 2.5% of the Price), or by direct credit, or by any other method as agreed to between the Client and Creative Timbers.
3.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery Of Goods
4.1 At Creative Timbers’ sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Creative Timbers’ address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Creative Timbers or Creative Timbers’ nominated carrier); or
(c) the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.
4.2 At the Creative Timbers’ sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Client’s account.
4.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Creative Timbers shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.5 Creative Timbers may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
4.6 The failure of Creative Timbers to deliver shall not entitle either party to treat this contract as repudiated.
4.7 Creative Timbers shall not be liable for any loss or damage whatever due to failure by Creative Timbers to deliver the Goods (or any of them) promptly or at all.
5.1 If Creative Timbers retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Creative Timbers is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Creative Timbers is sufficient evidence of Creative Timbers’ rights to receive the insurance proceeds without the need for any person dealing with Creative Timbers to make further enquiries.
5.3 Timber is a natural product and as such colour, shade tone, markings, and veining may vary from samples provided. Whilst Creative Timbers will make every effort to match sales samples to the finished Goods Creative Timbers accepts no liability whatsoever where the samples differ to the finished Goods.
5.4 Timber is a hydroscopic material subject to expansion and contraction, therefore Creative Timbers will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods.
5.5 The Client acknowledges that Goods supplied may
(a) exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
6.1 Creative Timbers and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Creative Timbers all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Creative Timbers in respect of all contracts between Creative Timbers and the Client.
6.2 Receipt by Creative Timbers of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Creative Timbers’ ownership or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Creative Timbers shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Creative Timbers to the Client Creative Timbers may give notice in writing to the Client to return the Goods or any of them to Creative Timbers. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Creative Timbers shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Creative Timbers then Creative Timbers or Creative Timbers’ agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Creative Timbers has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for Creative Timbers; and
(f) the Client shall not deal with the money of Creative Timbers in any way which may be adverse to Creative Timbers; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Creative Timbers; and
(h) Creative Timbers can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Creative Timbers will be the owner of the end products.
7. Client’s Disclaimer
7.1 The Client hereby disclaims any right to rescind, or cancel any contract with Creative Timbers or to sue for damages or to claim restitution arising out of any alleged misrepresentation made to the Client by Creative Timbers and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgement.
8.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Creative Timbers of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Creative Timbers an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Creative Timbers has agreed in writing that the Client is entitled to reject, Creative Timbers’ liability is limited to either (at Creative Timbers’ discretion) replacing the Goods or repairing the Goods. Where the Client is a consumer as defined in the TPA then the client shall also be entitled to a refund.
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Creative Timbers has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within thirty (30) days of the delivery date; and
(d) Creative Timbers will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, in as new condition as is reasonably possible in the circumstances.
9.2 Creative Timbers will accept the return of Goods for credit on current stock items only.
9.3 Creative Timbers may (at its discretion) accept the return of Goods for credit but this may incur a handling fee of fifteen percent (15%) of the value of the returned Goods plus any freight.
10. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11.1 To the extent permitted by statute, no warranty is given by Creative Timbers as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Creative Timbers shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
12. Default & Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
12.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify Creative Timbers from and against all costs and disbursements incurred by Creative Timbers in pursuing the debt including legal costs on a solicitor and own client basis and Creative Timbers’ collection agency costs.
12.3 Without prejudice to any other remedies Creative Timbers may have, if at any time the Client is in breach of any obligation (including those relating to payment), Creative Timbers may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Creative Timbers will not be liable to the Client for any loss or damage the Client suffers because Creative Timbers has exercised its rights under this clause.
12.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.5 Without prejudice to Creative Timbers’ other remedies at law Creative Timbers shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Creative Timbers shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Creative Timbers becomes overdue, or in Creative Timbers’ opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13. Security And Charge
13.1 Despite anything to the contrary contained herein or any other rights which Creative Timbers may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Creative Timbers or Creative Timbers’ nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Creative Timbers (or Creative Timbers’ nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Creative Timbers elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Creative Timbers from and against all Creative Timbers’ costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Creative Timbers or Creative Timbers’ nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14.1 Creative Timbers may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Creative Timbers shall repay to the Client any sums paid in respect of the Price. Creative Timbers shall not be liable for any loss or damage whatever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Creative Timbers (including, but not limited to, any loss of profits) up to the time of cancellation.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s agree for Creative Timbers to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Creative Timbers.
15.2 The Client and/or the Guarantor/s agree that Creative Timbers may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of the Client and/or Guarantor/s.
15.3 The Client consents to Creative Timbers being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Creative Timbers for the following purposes and for other purposes as shall be agreed between the Client and Creative Timbers or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Creative Timbers, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
15.5 Creative Timbers may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16. Building and Construction Industry Payments Act 2004
16.1 At Creative Timbers’ sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
17.3 Creative Timbers shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Creative Timbers of these terms and conditions.
17.4 In the event of any breach of this contract by Creative Timbers the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by Creative Timbers.
17.6 Creative Timbers may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 Creative Timbers reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Creative Timbers notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
17.9 The failure by Creative Timbers to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Creative Timbers’ right to subsequently enforce that provision.