"the Company" means Decorative Imaging Pty Ltd.
"the Customer" means the person referred to on the reverse hereof, being the purchaser of the Services.
"the Goods" means the Customer's goods.
"the Services" means any work to be performed on the Goods by the Company including painting, powder coating and other forms of finishing work.
2.1 Any order placed by the Customer is deemed to be an order incorporating these Standard Terms and Conditions. These Standard Terms and Conditions may only be varied in writing by a duly authorised officer of the Company. In the event of any conflict between any terms and conditions specifically negotiated between the Company and the Customer and these Standard Terms and Conditions, the terms of these Standard Terms and Conditions prevail.
2.2 The Customer acknowledges that he has read and understands these Standard Terms and Conditions.
2.3 These Standard Terms and Conditions shall be binding upon the Company, the Customer and their respective directors, servants, agents, executors, trustees and assigns.
2.4 These Standard Terms and Conditions are governed by and are to be construed in accordance with the law of New South Wales and the Company and the Customer irrevocably submit to the non-exclusive jurisdiction of the Courts in and of that State.
3.1 Customers must pay their outstanding invoices prior to collection of the Goods, except where the Company has agreed to offer credit terms.
3.2 Where the Company has agreed to offer credit, payment terms are strictly nett cash thirty days from end of month unless otherwise expressly agreed by the Company in writing.
3.3 The Company reserves the right to invoice on completion of the Services to the Goods whether or not the Goods have been collected by or on behalf of the Customer.
4.1 All prices shall be as quoted or in accordance with arrangements current at the time of delivery to the Company. Any quotations given by the Company to the Customer shall only be binding upon the Company if provided in writing by a duly authorised officer of the Company.
4.2 The quoted price is subject to alteration by the Company in the event of variations in freight, exchange rates, customs duty, packing charges, insurance and all other fees or charges incurred in connection with the Services. All such variations shall be paid for by the Customer.
4.3 All prices quoted for the Services are subject to change. In the event that any such price changes after acceptance by the Customer of the Company's offer, the Company will notify the Customer of the same and allow the Customer to withdraw his order. In the event that the Company notifies the Customer of a price change, the Customer's assent to such change shall be deemed given unless the Customer notifies the Company in writing of its withdrawal of an order within two (2) business days of receiving verbal or written notice of the price change.
5. DELIVERY AND COLLECTION
5.1 The person or persons responsible for the delivery of the Goods to the Company shall prior to the unloading of the Goods report to the Company's despatch clerk and shall not unload the Goods until such time as permission to do so is given by the Company's despatch clerk.
5.2 All Goods delivered to the Company by the person or persons referred to in Clause 5.1 shall be accompanied by the Company's official order form which shall be presented to the Company's despatch clerk and approved by him prior to the unloading of the Goods.
5.3 Any time quoted for collection of the Goods are estimates only and the Company shall not be liable for failure to have the Goods available for collection or for delay arising from any cause whatsoever. The Customer shall not be relieved from any obligation to pay for the Services by reason of any delay in having the Goods available for collection and the Customer will arrange for delivery and collection of the Goods from the Company's premises at the Customer's expense. The Company reserves the right to have the Customer collect its Goods by instalments and each instalment shall be deemed to be sold under a separate contract. Failure to collect any instalment shall not entitle the Customer to repudiate the contract.
6.1 The Company shall not be liable for or in respect of any loss or damage to the Goods or suffered by the Customer howsoever caused or arising whether caused or arising by reason of or on account of any act or omission whether negligent or otherwise on the part of the Company or its servants or agents.
6.2 The Customer acknowledges that the Company shall not be liable for damages or to rectify the Services performed on the Goods in any circumstances in which the Goods provided by the Customer to the Company are in a condition which does not allow a proper application of the Services to the Goods including, but not limited to, Goods which:
(a) have been coated with graphite, grease, hydraulic oil or wax or being affected by rust;
(b) have a latent or patent defect;
(c) have foreign matter adhesives attached, to them which cannot be removed during normal cleaning processes undertaken by the Company;
(d) have been sanded and not properly finished;
(e) are not suitably designed for the Services rendered by the Company including the failure of the Goods to have suitable drainholes to drain pre-treatment chemicals from the hollow tubing contained in the Goods and suitable facilities for the hanging of the Goods on the Company's conveyor line;
(f) do not have appropriate holes or attachments for the hanging of the Goods to enable the Company to provide the Services;
(g) which fail to comply with the requirements of the Australian Standards Association from time to time;
(h) have been acknowledged by the Customer in the Company's "Defective Goods Received" form to be in a defective state; or
(i) have been galvanised or externally treated/coated in any other manner by a party other than the Company prior to delivery to the Company and which treatment as a result does not allow the Services to be properly performed or administered.
6.3 The Customer further acknowledges that the Company shall not be liable for damages or to rectify the Services performed on the Goods where the resultant spray/shade/colour pattern variation on the coating of the Goods after the Services have been performed are different from the spray/shade/colour pattern requested by the Customer but nevertheless are within the acceptable margin of difference allowed by the Australian Standards Association from time to time.
6.4 As the Company cannot supervise the installation use or storage of the Goods it does not warrant the fitness of finishes for any particular purpose even though that purpose may be known to them and no such warranty is to be implied from the name or description under which the finishes are applied and all conditions and warranties which might but for this provision be implied by law are hereby expressly negated to the extent permitted by law.
6.5 As to any claim against the Company not debarred by the immediately preceding clauses 126.96.36.199,6.3 and 6.4, it shall be a condition precedent to any such claim by the Customer, that written notice setting out particulars of the alleged defects be given by the Customer to the Company within 14 days after collection of the finished Goods and that the whole or any adequate part of the unused Goods be returned to the Company within 14 days after receipt of the said written notice to provide a reasonable opportunity for, the Company to examine the Goods.
6.6 The liability of the Company under any contract shall in the case of any claim to which the immediately preceding clause 6.5 applies be limited to the cost of the Services actually carried out thereunder provided that in respect of defective or faulty finishes, it shall be limited to the redoing the Services.
6.7 In circumstances in which the provisions of the Trade Practices Act (Commonwealth) 1974 and other applicable statutes ("the Statutes") may imply warranties or impose liabilities on the Company in favour of the Customer, which are not and cannot be excluded, the provisions of this Clause 6 must be read and construed subject to any such statutory provisions. If any such statutory provisions apply, then to the extent to which the Company is entitled to do so, its liability under those statutory provisions shall be limited at its option, in the case of services, to:
(i) the supplying of those Services again; or
(ii) the payment of the cost of having the Services supplied again; or
(iii) such other remedy as the Statutes may prescribe from time to time as being available to the Company.
7. CONSEQUENTIAL DAMAGES
Subject to Clause 6.5 herein, the Company, accepts no responsibility and liability for the loss of the use of the Goods, loss of time,
Inconvenience or any other loss or damage, direct or consequential or otherwise arising out of or related in any way to a defect in material or workmanship of the Goods or attributable to any conduct negligence fault or default of the Company.
8. IMPLIED CONDITIONS
No representations or statements are binding on the Company unless set out in these Standard Terms and Conditions or communicated in writing to the Customer by a duly authorised officer of the Company.
Unless otherwise indicated prices include standard packing. If packages are charged for and are returnable, allowance will only be made for the same when they have been received back by the Company in good condition.
Any description of Services contained in these Standard Terms and Conditions is given by way of identification only and use of such description shall not constitute this contract a sale by description.
11. DEFAULT OF CUSTOMER
If the Customer makes default in any payment, commits an act of bankruptcy or enters into involuntary liquidation, the Company may at its option withhold further deliveries or cancel the contract without prejudice to its rights thereunder.
In addition to any lien to which the Company may by statute or otherwise be entitled, the Company shall, in the event of the Customer failing to comply with the payment terms contained in Clause 3 or the Customer's insolvency, bankruptcy or winding up, be entitled to a general lien on all property or Goods belonging to the Customer in the Company's possession (although Services rendered with respect to the Goods or some of them have been paid for), for the unpaid price of any other Services rendered to the Customer under this or any other contract.
Failure by the Company to insist upon strict performance of any of the Standard Terms or Conditions herein shall not be deemed a waiver thereof or of any rights the Company may have, and shall not be deemed a waiver of any subsequent breach of any term or condition.
All Services are performed on the understanding that all licences and permits under all relevant statutes, ordinances, rules and regulations have been obtained by the Customer and the Customer will ensure that the installation and use of all Goods meets all statutory requirements.
The Customer warrants that any instruction furnished to the Company shall not be such as will cause the Company to infringe any patent, registration, design or trademark in the execution of the Customer's order. The Customer agrees to indemnify the Company against any infringement or unauthorised use of any patent, trademark, design or copyright arising out of the use of the Goods and it is specifically agreed that the performance of the Company's Services does not confer on the Customer any licence or rights under any patent, trademark or copyright the property of the Company.
Any figures or estimates given for performances of Services are based upon the Company's experience and are such as the Company would expect to obtain on test. The Company will only accept liability for failure to obtain the figures or estimates given when such figures or estimates are guaranteed in writing within specified margins.
The Company reserves the right to sub-contract the supply or any part of the supply of Services quoted or on any Goods to be supplied.