In these terms and conditions:
'Castledex' ABN 29 009 097 821 refers to its successors, transferees or assignees.
'The Customer' means any party who purchases Goods from Castledex; ‘Goods’ means supplies, stock-in-trade, consumables, services, products, and merchandise supplied by Castledex to the Customer; ‘GST’ means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time (‘GST Act’) or any replacement or other relevant legislation and regulations; ‘Special Product means a custom made or altered product manufactured to the Customer's specifications.
PRICE AND ORDERS
- Castledex's price is not an offer to sell but is an invitation to treat only and Castledex reserves the right to accept or reject in its absolute discretion any orders that may be received by it.
- Unless specified in writing by Castledex these terms and conditions and any price estimates provided do not take into account any additional costs incurred by Castledex as a result of the requirements of any enterprise bargaining agreement between the Customer or any contractor and its employees that may affect the cost of the services to be provided by Castledex. The price may be increased to take into account the additional costs incurred by Castledex.
- All offers or quotations from Castledex shall last no longer than (30) days unless otherwise specified in writing and shall become binding only upon receipt by Castledex of an unconditional written acceptance from the Customer as Castledex may require.
- If a Customer wishes to modify or cancel an order then it may only do so in the manner specified from time to time by Castledex. All requests to cancel or modify existing orders must be made in writing. The Customer acknowledges that the extent to which an order can be modified or cancelled, if at all, will depend on the type of product and the stage that the order has reached in Castledex’s system.
- Prices quoted are on the basis of the whole quantity being supplied unless otherwise stated.
- GST is always stated on the invoice and is noted inclusive or exclusive on written quotations.
- Unless otherwise specified in writing, delivery is to the Customer’s business premises or delivery point provided access is reasonable in the opinion of Castledex, and all delivery costs are paid by the Customer.
- The Customer may arrange to collect the Goods at its own cost during Castledex’s normal business hours.
- Time of delivery is at the sole discretion of Castledex and if a delivery date is specified that date is an estimate only and Castledex is not liable for any delay in delivery.
- Castledex shall not be liable for any losses, damages or expenses sustained by the Customer or any other person in consequence of delay in delivery or collection of the Goods or completion of work for any reason whatsoever and if such delivery or collection or completion is delayed at the request of the Customer or owing to his inability to accept the Goods for any reason or owing to some other cause beyond the control of Castledex where Castledex is able to deliver same or carry out such work then the Customer shall be liable for extra charges, losses or expenses incurred by Castledex.
- If Castledex is unable to supply the Customer’s total order these terms and conditions continue to apply to the Goods supplied.
- The Customer must inspect the Goods immediately upon delivery and must within 72 hours after the date of delivery give written notice to Castledex, with particulars, of any claim that the Goods are not in accordance with the contract. If the Customer fails to give such notice within such period then to the extent permitted by statute the Goods are deemed to have been accepted by the Customer and the Customer must pay for the Goods in accordance with the provisions of these terms and conditions.
- If the Customer is unable to receive an order then it must notify Castledex. Storage costs may apply.
- Payment for Goods sold by Castledex to the Customer must be tendered no later than 30 days by end of month (EOM) unless otherwise specified by Castledex in writing.
- If required, the Customer must make payment in advance or in cash on the date of delivery if no terms are previously negotiated.
- Payment is deemed to be made by direct debit - on the date the money is credited to the bank account nominated by Castledex; by cash on the date it is tendered; by cheque or credit card (bank or otherwise) on the date upon which the payment is negotiated and cleared by Castledex’s bankers.
- If the Customer defaults in making payment to Castledex in accordance with these terms and conditions Castledex may in its absolute discretion require the Customer to reimburse Castledex for all collection costs including legal costs incurred by Castledex calculated on a solicitor and client basis as a consequence of Castledex instructing its solicitor to provide advice to it in connection with the default and/or to institute such recovery process as Castledex in its discretion decides.
RETENTION OF TITLE
- When Property Passes Property in the Goods supplied by Castledex to the Customer under these terms and conditions does not pass to the Customer until the money owing for those Goods, and any other money owing by the Customer to Castledex, has been paid.
- Balance Sale Price Remains a Debt If the sale price of all Goods sold by Castledex to the Customer is greater than the sum of the proceeds actually received by Castledex in respect of all dealings by the Customer with the Goods the difference remains a debt owing by the Customer to Castledex. If the debt remains unpaid for a term longer than 90 days, Castledex reserves the right to bring in a third party to recoup costs or may commence legal action against the Customer if the Goods are not paid for inaccordance with these terms and conditions or any separate arrangement for credit made by Castledex with the Customer.
- The Customer must not return any Goods to Castledex unless specifically requested to do so by Castledex.
- The return of undamaged Goods by the Customer will only be accepted within 30 days of delivery
- Orders accepted by Castledex cannot be countermanded or delivery deferred or Goods returned except with the written consent of Castledex and upon terms that will reimburse and indemnify Castledex against all loss including profit on any part of the order that is cancelled. ‘Special Products’ not considered as standard by Castledex will not be accepted for return by Castledex. Any costs incurred by Castledex in connection with the storage of the Goods shall be paid by the Customer.
Goods supplied by Castledex to the Customer are supplied on an exwarehouse basis and are at the Customer’s risk immediately after they have left the warehouse or Castledex’s premises.
EXCLUSIONS AND LIMITATIONS
- The only conditions and warranties that bind Castledex are in respect of:
- The state, quality or condition of the Goods supplied by it to the Customer; and/or
- 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 statute (including the Trade Practices Act 1974).
- To the extent permitted by statute the liability, if any, of Castledex arising from the breach of the conditions or warranties.
- The Customer acknowledges that the Customer does not rely and it is unreasonable for the Customer to rely on the skill or judgment of Castledex as to whether the Goods supplied are reasonably fit for any purpose for which they are being acquired, and that the sale is not a sale of Goods by description or sample.
- Except to the extent provided in this clause 9, Castledex has no liability (including liability in negligence) to any person for:
- Any loss or damage consequential or otherwise suffered or incurred by that person in relation to the Goods and/or advice, recommendation(s), information or services supplied by Castledex; and
- In particular without limiting clause 9(4)(a) any loss or damage consequential or otherwise suffered or incurred by that person caused by or resulting directly or indirectly from any failure, defect or deficiency of any kind of or in the Goods and/or advice, recommendation(s), information or services supplied by Castledex.
- Castledex shall in no circumstances be under any liability for injuries, expense, damages or consequential loss which may in any degree be attributed to the use of materials or installations supplied by it but not manufactured by Dexion or to the adoption of data, design materials or advice given as to the use of its products.
- The Customer indemnifies Castledex, regardless of any negligence on the part of Castledex, against:
- All losses incurred by Castledex;
- All liabilities incurred by Castledex; and
- All legal costs (on a solicitor and own client or full indemnity basis, whichever is greater) and other expenses incurred by Castledex in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal), arising directly or indirectly as a result of or in connection with the supply of Goods by Castledex to the Customer including as a result of any work done by Castledex in accordance with the instructions or design of the Customer unless caused by willful misconduct on the part of Castledex or any of its employees or agents acting within the scope of their employment.
- The Customer must pay to Castledex all liabilities, costs and other expenses referred to in clause 10(1), whether or not Castledex has paid or satisfied them.
Where Goods are supplied to the Customer on credit the Customer irrevocably authorises Castledex, its employees and agents to make such enquiries as it deems necessary to investigate the credit worthiness of the Customer including (without limitation) making enquiries from persons nominated as trade referees, the bankers of the Customer or any other credit providers and the Customer authorises these persons to disclose to Castledex all information concerning the Customer which is within their possession and which is requested by Castledex.
- The Customer acknowledges and accepts that Castledex may add to, delete or otherwise modify these terms and conditions by giving written notice of the change to the Customer.
- A change to these terms and conditions takes effect 7 days after it is notified to the Customer.
These terms and conditions contain the entire agreement between the parties without prejudice to the rights of Castledex at common law or equity.
All drawings and specifications prepared by Castledex are the property of Castledex and the copyright is reserved accordingly and no copies shall be made or extracts taken without its prior written consent.
- Castledex may by written notice immediately suspend or cancel performance of this contract if the Customer be declared bankrupt or if a company is subject to a winding-up order if a Receiver or Manager or Receiver and Manager of its assets be appointed or if any form of insolvency administrator or third party is appointed or if it shall breach or fail to perform any of these conditions or shall fail to rectify such breach or non-performance within seven (7) days after written notice and may by written notice terminate this contract forthwith but any such termination shall not affect any other rights or remedies which Castledex may have in consequence or any such breach or nonperformance.
- Where this contract relates to the ‘Delivery & Installation’ the following conditions shall apply:
- The Customer will at his own expense or agreed by agreed charge convey the Goods to a position within twenty metres from where construction is required or within such other distance as may be required by Castledex. Failure to do so may result in an additional labour charge.
- The Customer will ensure the safe custody of and minimise deterioration to the Goods and Castledex’s equipment on site and will protect the same by providing covered and secured waterproof storage accommodation.
- The Customer will prior to the commencement date for construction ensure that:
- The site is cleared and free from obstruction;
- Electricity services are available; and
- (unless the parties otherwise agree in writing) Castledex is enabled to carry out the Delivery & Installation as one uninterrupted operation to be completed during normal working hours.
- The contract price is fixed on the basis that the floors upon which the Construction Works are to be performed are level and even. Any additional costs incurred to shim the installation due to an uneven or out of level floor surface in excess of plus or minus 10mm elevation variation over the entire floor area shall be paid by the Customer.
- Castledex is not responsible for the strength or structural condition of the floors or foundations upon which the construct works are erected and makes no representation and gives no warranty that such floors or foundations are suitable for the Construction Works thereon and shall not be liable for any damage or injury directly or indirectly attributable to any defects in or any structural movement collapse subsidence or failure of the said floors or foundations.
- On completion any surplus Goods delivered by Castledex shall remain the property of and be removed from the site by Castledex. Until such removal the Customer shall take reasonable precautions for the safe custody and protection of such surplus Goods.
- If for any reason commencement of the Construction Works extends beyond two (2) weeks from the stipulated date Castledex shall be entitled to receive from the Customer an interim payment or payments on account of the contract price and may render an interim invoice or invoices accordingly.
- Unless otherwise expressly provided for Castledex will not be responsible for any builder’s work or other work involving alterations to the structure of any premises at which work is to be undertaken by Castledex.
- Access will be required during the normal working day from 8:00am – 4.00pm (Monday – Friday) and longer by arrangement if required to complete the work. Failure to adhere to these hours may result in an additional labour charge.
- The Customer will serve all notices and make applications for and obtain all such licenses, consents or approvals as are required under any building regulations or by-laws or any legislation for the time being in force prior to the carrying out of any Construction Works and the Customer shall be liable and indemnify and keep indemnified Castledex against all actions, proceedings, costs, charges, claims or demands arising directly or indirectly out of or in connection with any breach of this condition.
- The Customer will ensure that employees and contractors of Castledex engaged in the installation are safe and free from risks to their health and safety and without limiting the foregoing:
- Provide a working environment which is safe and free from risks to health and safety;
- Provide the workers with information and instruction in relation to risks to health and safety arising from the Customer’s premises;
- Provide a site induction to the workers upon arriving at the premises which amongst other things outlines the emergency procedures on site and the location of amenities on site (including first aid equipment and personnel);
- Notify Castledex immediately where the workers have been or are likely to be exposed to risks to their health and safety or where there is a material change in the premises, systems of work, plant or substances used at the premises which affect the health and safety of the workers.
Where the Goods include Steel Storage Racking then the Customer shall operate and maintain the storage racking in accordance with the requirements of Australian Standard AS 4084-1993 including any amendments made to that Standard