Read up on our credit and sales terms, the meaning of words we use in our terms, and other important information. Nothing in our T&Cs excludes rights and remedies available to you under the Australian Consumer Law.
Effective Date: 1 April 2018
In this document the following words have the following meanings:
Account Number means the computer-generated identification number given by Stramit to the Buyer;
All Present and After Acquired Property have the meanings given to those terms under the PPS Act;
Any Other Agreement means any deed, guarantee, indemnity, security, contract, terms, conditions or agreement between any of Stramit, the Buyer, a guarantor and/or a co-surety or any of their related bodies corporate (as defined in the Corporations Act 2001) in respect of or in connection with any contract for sale of Goods and/or Services and the Guaranteed Debt;
Credit Application means the application for a Credit Account made by the Buyer;
Australian Consumer Law means the Australian Consumer Law in the Competition and Consumer Act 2010 (Cth);
Buyer means the person or entity who has applied for a Credit Account and includes the person, partnership, corporation or other legal entity which places an Order with Stramit for the supply of Goods and/or Services;
Circulating and Non-Circulating Assets have the meanings given to those terms under the PPS Act;
Contract has the meaning given to that term in clause 1.1 of the Sale Terms;
Consumer means a consumer as that term is defined in the Australian Consumer Law;
Credit Account means the commercial credit account the Buyer has with Stramit under the Credit Terms;
Credit Limit means the maximum cumulative monetary limit for all debts owed by the Buyer to Stramit at any time for Goods and Services purchased on credit; Credit Terms means the terms and conditions of the Credit Account as set out below;
Delivery Site means the Buyer’s premises or a site nominated by the Buyer for delivery of Goods;
Event of Default means any means any one or more of the following: (a) if the Buyer fails to take delivery of, or to pay for Goods and/or Services by the due date or otherwise breached any other term of any Contract; or (b) if an administrator, liquidator or provisional liquidator or external manager is appointed in respect of the Buyer; or (c) the Buyer enters into any composition or arrangement with its creditors; , or (d) Stramit has reasonable grounds for suspecting that an event in(b) or (c) has occurred; Stramit has any reasonable grounds to believe that the Buyer may not be able to make due and punctual payment to Stramit or there is any default or failure by the Buyer in making due and punctual payment to Stramit of any moneys owing by the Buyer; or (e) Stramit has any reasonable grounds to believe that the Buyer may not be able to make due and punctual payment to Stramit or there is any default or failure by the Buyer in making due and punc- tual payment to Stramit of any moneys owing by the Buyer; or (f) contractual performance by either Stramit or the Buyer is delayed or prevented due to any Force Majeure Event.
Force Majeure Event means any event outside a party’s reasonable control including acts of God, declared or undeclared war, act of terrorism, fire, flood, storm, earthquake, hurricane, cyclone, riot, power failure, industrial action, defaults of manufacturers or suppliers, the inability to obtain equipment, supplies or other facilities that are not caused by a failure to pay, labour disputes, theft, any criminal act or other similar events beyond a party’s control that may prevent or delay a party from performing their obligations under any Contract;
Goods means the building products requested by the Buyer in its Order and includes Special Building Products and the proceeds (as defined in the PPS Act) of those Goods;
Guaranteed Debts means the debts guaranteed by a guarantor;
GST means goods and services tax as defined under the A New Tax System (Goods and Services Tax) 1999;
Interest Rate means the rate of 6% above the cash rate last published by the Reserve Bank of Australia (as at the due date);
Order means a request by the Buyer to Stramit for the supply of Goods and/or Services;
Part means any part of the Credit Account;
PPS Act means the Personal Property Securities Act 2009, and includes the Personal Property Securities Regulations 2010 and any amendments or re-en- actments of the PPS Act or the Regulations;
PPS Register means the personal properties security register established under the PPS Act;
Price List means the Customer price list issued by Stramit from time to time in the particular Stramit region in which an Order is placed;
Purchase Order Number is the Buyer’s identifier to be supplied by the Buyer to Stramit when placing an Order;
Sale Terms means the terms and conditions of sale and supply of Goods and Services by Stramit to the Buyer as set out below and the terms set out in the Price List;
Services means any services performed by Stramit for the Buyer associated with Stramit's supply of Goods, including delivery of the Goods;
Small Business Contract means a congtract for the supply of goods or services where:
(1) at the time the contract is entered into, at least one party to the contract is a business that employs fewer than 20 persons; and
(2)either of the following applies:
(A)the upfront price payable under the contract does not exceed $300,000;
(B)the contract has a duration of more than 12 months and the upfront price payable under the contract does not exceed $1,000,000.
However, if the relevant parts of the definition of ‘Small Business Contract’ under the Australian Consumer Law are amended at any time, this definition is also amended accordingly;
Special Building Products means building products produced by Stramit which the Buyer requests Stramit to produce according to a design, drawing or specifi- cation provided to Stramit by the Buyer and goods and materials which the Buyer requests Stramit to process, purchase or supply;
Stramit means: (a) Stramit Corporation Pty Ltd ABN 57 005 010 195; (b) its successors and assigns; and (c) the seller of Goods and Services under the business names ‘Stramit Building Products’, ‘Eziform Sheetmetal’ and ‘Taurean Door Systems’.
Words commencing with a capital letter and in bold are defined in these Sales Terms.Words commencing with a capital letter and in bold are defined in these Sales Terms.
1. TERMS APPLICABLE TO THE SUPPLY OF GOODS AND/OR SERVICES
1.1 The contract between the Buyer and Stramit is constituted by: (i) the Sale Terms; (ii) the Credit Terms; (iii) each other Part (excluding the Guarantee); and (iv) to the extent to which Stramit accepts an order in accordance with clause 2.2 (each a “Contract”). The Sales Terms, the Credit Terms, each other Part (excluding the Guarantee) and the extent to which Stramit accepts the Order govern all contracts for the supply of Goods and/or Services by Stramit to the Buyer and constitute the entire agreement in connection with the supply of Goods and/or Services between Stramit and the Buyer.
1.2 All prior representations, trade custom or previous dealings between Stramit and the Buyer are excluded and are not applicable in the interpretation of the contract. No modification or variation to the Sale Terms or Credit Terms, any additional terms or conditions or any terms inconsistent with the Sale Terms or Credit Terms provided by the Buyer (whether put forward in the Order, the Buyer’s specification or otherwise) will bind Stramit, unless expressly and specifically agreed to in writing by Stramit. These Sale Terms and Credit Terms supersede any terms and conditions which have previously governed a contract for the sale of Goods and/or supply of Services by Stramit to the Buyer. The Sale Terms and Credit Terms will prevail to the extent of any inconsistency between them and any quotation, Order or other documents from the Buyer. These Sale Terms and Credit Terms bind the Buyer even if Stramit or the Buyer do not sign them promptly or at all.
1.3 To the extent permitted by the PPS Act the parties agree to contract out of the following sections of the PPS Act:
1.3.1 to the extent that Stramit is required to give notice to the Buyer: sec- tions 95, 118, 121(4), 130 and 135; and
1.3.2 sections 125, 132(3)(d) and 132(4).
1.4 The Buyer waives its rights to receive notice from Stramit of a regis- tration event under section 157(1) of the PPS Act.
1.5 Stramit may at any time, and from time to time vary these Sale Terms and/ or Credit Terms by notice in writing to the Buyer, or by updating the Sales Terms and/or Credit Terms found on Stramit’s website, www.stramit.com.au. Subject to Clause 2, if the Contract is a Small Business Contract, then the Buyer may consider the variation and, if not acceptable, may elect not to proceed with the purchase of the Goods or Services ordered before the date of the variation but which are intended to be subject to the variation. If the Contract is not a Small Business Contract, the Buyer agrees that Goods delivered and Services performed and/or ordered after the date of a notice of vari- ation will be subject to the variation and acceptance of the Goods or Services or the placing of the Order shall be deemed to be an accept- ance of such varied terms and conditions. Sale Terms shall apply from the date of alteration. A copy of current Sale Terms can be found on Stramit’s website, www.stramit.com.au. The Buyer acknowledges and warrants that he/she/it will regularly inspect the said website for any updated or altered Sale Terms.
2. ORDERING AND SUPPLY OF GOODS AND/OR SERVICES
2.1 The Buyer may place an Order verbally or in writing. An Order con- stitutes an offer by the Buyer to purchase Goods and/or Services from Stramit pursuant to Clause 220.127.116.11 The Buyer may place an Order verbally or in writing. An Order con- stitutes an offer by the Buyer to purchase Goods and/or Services from Stramit pursuant to Clause 1.1.
2.2 Stramit may accept or decline, in whole or in part, any Order. Acceptance may be verbal or in writing, or by Stramit delivering or making the Goods and/or Services available for collection (which- ever occurs first). Acceptance of an Order by Stramit gives rise to a Contract for the supply of the ordered Goods and/or Services on these Sale Terms.
2.3 Stramit may, in its sole discretion, agree to a written request from the Buyer for cancellation or variation (including variation to delivery times) of a Contract under clause 2.2. Stramit’s acceptance must be in writing.
3. PRICES, QUOTATIONS PAYMENT AND DEFAULT
3.1 Unless otherwise expressly agreed in writing, the amount payable for the Goods and/or Services will be the price on Stramit’s invoice plus any duties, fees, taxes (including GST), delivery charges and levies charged or imposed on or in respect of a Contract referred to in clause 2.2, plus any amount that reflects any increase in exchange rates, costs of labour, materials and overheads in connection with Stramit’s supply.
3.2 Until Stramit confirms that a credit facility has been granted to the Buyer, all Goods and Services must be paid for on a cash on delivery or performance basis. If a credit facility has been granted, the Buyer must pay Stramit for the Goods and/or Services either:3.2.1 as required by the Credit Terms; or3.2.2 if required by Stramit, prior to Stramit ordering materials or commen- cing manufacture of the Goods.
3.3 A quotation will not constitute an offer to sell Goods or Services to the Buyer. No Contract for the supply of Goods or Services will exist between the Stramit and Buyer until Buyer’s order for Goods or Services has been accepted by Stramit (such acceptance of the Buyer’s order may be made and communicated by Stramit in writing or by over act of acceptance).
3.4 Any written quotation provided by Stramit expires on the date stated or otherwise 30 days after the date the quotation is issued by Stramit. Stramit may withdraw or vary a quotation before accepting an Order. Prior to acceptance of an Order of the Goods by Stramit, if there is an increase in Stramit’s costs or pricing, then Stramit may increase its quoted price and the Buyer must pay the increased price.
3.5 If the Buyer commits an Event of Default then:-3.5.1 all monies payable (including under a Credit Account, or under any Agreement) by the Buyer to Stramit may, at Stramit’s election, become immediately due and payable notwithstanding the due date for payment may not have expired; and.3.5.2 Stramit, without prejudice to any other rights Stramit may have, may do any or all of the following:(i) suspend or withdraw the Credit Account;(ii) terminate or suspend the whole or any outstanding part of any Contract in force between Stramitand the Buyer;(iii) recover from the Buyer the cost of materials or goods acquired for the purpose of future deliveriesGoods or the performance of Services;(iv) immediately re-possess any Goods to which title has not passed.(v) charge interest to the Buyer at the Interest Rate calculated daily on any overdue amount andpayable together with the overdue amount;(vi) immediately enforce any security it holds over the land or personal property of the Buyer; and(vii) register a default with any credit reference facility
3.6 Stramit may in its sole discretion apply any payment received from the Buyer towards any debt (including interest charged under clause 3.5.2(v)) owed by the Buyer to Stramit at any time.
3.7 If in Stramit’s reasonable opinion the financial position or status of the Buyer requires it, Stramit may refuse to make a delivery or cancel any contract under clause 2.2.
3.8 The Buyer must pay to Stramit on demand all reasonably incurred costs, charges and expenses (including legal expenses on an indem- nity basis) that Stramit incurs as a result of any breach of these Sale Terms or Contract by the Buyer.
3.9 The Buyer must supply Stramit with its Account Number and Purchaser Order Number at the time of placing the Order. The Buyer is liable to pay the amount of an invoice, regardless of whether the Buyer’s Account Number or Purchase Order Number is included on the invoice.
3.10 The Buyer is liable for all purchases made under its account number and/or account name. It is not the responsibility of Stramit to confirm authority for the purposes of supplying Goods or Services to Buyer, its agent(s) or those who Stramit deems to be its agents. It is the sole responsibility of Buyer to ensure there is no unauthorised use of their account number or name A statement on a certificate given by Stramit setting out the quantities, descriptions, prices and dates and other information in respect of Goods and/or Services will be conclusive and binding on the parties in the absence of manifest error.
3.11 The Buyer will not assert any right of set-off against Stramit and will pay all sums due and payable without deduction.
4. DELIVERY AND COLLECTION
4.1 Stramit may:4.1.1 make the Goods available for collection at Stramit’s premises; or4.1.2 deliver (or arrange delivery) of the Goods in the manner it deems fit to the Delivery Site.
4.2 The Buyer’s Order must specify if the Goods are to be delivered to the Delivery Site or collected from Stramit. If delivery is specified then the Delivery Site must be nominated.
4.3 Stramit will advise the Buyer of the estimated delivery or collection date and time and may alter it if necessary. Any times quoted for deliv- ery are estimates only and Stramit may supply by installments. To the extent permitted by law, Stramit will not be liable to the Buyer for any costs, loss or damage whatsoever (including indirect or consequential loss) caused directly or indirectly by any delay or failure to deliver the Goods or to perform the services or to make the Goods available for collection on the date or at the time specified. The Buyer must accept and pay for the Goods and/or the Services notwithstanding any exten- sion or delay in the delivery or the availability of Goods for collection or in the performance of the Services.
4.4 If the Buyer does not collect the Goods by the collection date, then Stramit may, without limiting any other rights available to it, store the Goods or deliver them to the Delivery Site and the Buyer must, on demand, pay all costs of delivery and any additional charges (including storage costs) and costs incurred by Stramit.
4.5 The Buyer must provide a suitable and safe area at the Delivery Site to unload the Goods and ensure that Stramit’s (or its agent, employee or contractor) use of the Delivery Site conforms to occupational health and safety legislation. The Buyer indemnifies and holds harmless Stramit (or its agent, employee or contractor) from any and all claims arising out of delivery of the Goods, except to the extent the Stramit (or its agent, employee or contractor) have been negligent or breached the law or the Contract.
4.6 If the Delivery Site is unattended, the Buyer authorises, Stramit or its contractors to deposit the Goods at the Delivery Site or retain the Goods if delivery is, in Stramit’s reasonable opinion inappropriate. Stramit will not be obliged to obtain a signed receipt or other acknow- ledgment from any person at the nominated place for delivery but if a signed receipt or other acknowledgment is obtained from someone believed by Stramit to be authorised by Buyer to sign or otherwise take delivery, then such signed receipt or other acknowledgement will be conclusive evidence of Buyer’s acceptance of the good delivered. The Buyer will indemnify and hold Stramit (and its contractors) harmless from any loss or damage caused by the depositing of Goods at an unattended Delivery Site.
4.7 To the extent permitted by law, Stramit will not be liable to the Buyer or to its employees or agents for any property damage or personal injury arising from any loading, unloading or delivery of the Goods. The Buyer indemnifies Stramit from any loss or damage suffered by Stramit as a result of any property damage or personal injury caused by the delivery and unloading of Goods except for and to the extent that the loss, damage or liability is caused by a negligent act or omission of Stramit or its contractors.
4.8 The Buyer must pay all costs and fees resulting from any or all of the following:4.8.1 any delay in delivery caused by the Buyer or the Delivery Site condi- tions;4.8.2 unexpected labour costs;4.8.3 Delivery Site conditions resulting in the incurring of additional costs and4.8.4 the nature of the Goods and/or Services ordered by the Buyer.
4.9 The Buyer must pay for any permit or licence or other extraordinary costs of transporting or delivering ordered Goods, including wide or long loads.
4.10 The Buyer must notify Stramit of any claim in writing within:4.10.1 2 days after delivery or collection that the Goods supplied do not accord with those ordered;4.10.2 14 days of receiving an invoice from Stramit that it disputes the invoice;4.10.3 (if the Buyer is not a Consumer) 2 days of delivery or collection of Goods that it is alleged they are defective or damaged; or4.10.4 (if the Buyer is not a Consumer) 2 days of performance of any allegedly deficient Services,and the Buyer will be taken to have accepted the Goods as delivered and/or the Services as performed or the invoice as rendered if the Buyer fails to so notify Stramit, and must pay for the Goods or Services in full.
4.11 If the Buyer is a Consumer, the Buyer must notify Stramit for matters within the contemplation of sub-clauses 4.10.3 and 4.10.4 within a reasonable time, and in any event promptly upon becoming aware of a claim within the contemplation of sub-clauses 4.10.3 and 4.10.4.
5. PASSING OF RISK
The risk of any loss or damage to or deterioration of the Goods from any cause whatsoever passes from Stramit to the Buyer, on the earlier of, when the Buyer takes possession of the Goods or otherwise if:
5.1 the Buyer collects the Goods and if Stramit or its contractors have loaded the Goods for the Buyer, when the Goods are fully loaded onto the Buyer’s vehicle or vessel;5.1 the Buyer collects the Goods and if Stramit or its contractors have loaded the Goods for the Buyer, when the Goods are fully loaded onto the Buyer’s vehicle or vessel;
5.2 Stramit delivers the Goods to the Delivery Site and the Buyer unloads the Goods, when the Buyer begins unloading the Goods; or
5.3 Stramit delivers the Goods and unloads them at the Delivery Site, when Stramit has finished unloading the Goods.
6. RETENTION OF TITLE
6.1 The Buyer agrees that legal and equitable title to the Goods remains with Stramit until the Buyer has paid for the Goods in full and has paid all other money owing for any reason at any time under any contract, agreement or account between Stramit and the Buyer, including all payments to be made under clauses 3.1 and 3.8.
6.2 Until title to the Goods passes, the Buyer:
6.2.1 holds the Goods as the bailee and fiduciary agent of Stramit;
6.2.2 must store the Goods separately and securely and in such manner as to indicate clearly that they remain the property of Stramit;
6.2.3 must insure the Goods for their full replacement value;
6.2.4 must not create or allow to be created any Security Interest or any other form of encumbrance over the Goods which is inconsistent with Stramit’s title to the Goods;
6.2.5 must not assign, charge or encumber or grant any interest over any obligations which any third party may owe to the Buyer as a result of the use, manufacture or resale of the Goods;
6.2.6 may not claim any lien or interest in the Goods to secure any liquidated or un-liquidated debt or obligation that Stramit owes to the Buyer; and
6.2.7 must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods.
6.3 Despite clause 6.2, unless Stramit notifies the Buyer to the contrary, the Buyer may, in the ordinary course of its business:
6.3.1 re-sell the Goods (Re-sold Goods), but only as a fiduciary agent of Stramit, in which case the Buyer must perform in favour of Stramit all the obligations and assume all of the liabilities of a fiduciary agent. Any right to bind Stramit to any liability to a third party by contract or otherwise is expressly excluded; and
6.3.2 use any of the Goods or part of the Goods in a manufacturing or con- struction process of its own or of a third party which manufactures, processes, assembles or commingles the Goods so that they become part of a product or mass (Manufactured Product), in which case it will hold the Manufactured Product on trust for Stramit as bailee and fiduciary agent or Stramit and may sell the Manufactured Product.
6.4 If the Buyer re-sells or deals with the Goods or the Manufactured Product before title to the Goods passes to the Buyer, then the Buyer:
6.4.1 assigns absolutely and unconditionally in favour of Stramit the Buyer’sentitlement to all the proceeds of the re-sale or dealing, and must notify the purchaser in writing of the assignment at the time of the re-sale or dealing; and
6.4.2 will hold such part of the proceeds of the re-sale or dealing on trust for and as the fiduciary agent of Stramit immediately when they are received or receivable.
6.5 When referring to "such part" in sub-clause 6.4.2 and/or the purpose of quantifying the amount of money paid to the Buyer and held in trust for Stramit from the proceeds of the sale of or dealing with the Goods or Manufactured Product, that part or amount will be equal in dollar terms of the value of the Goods on the day on which they become part of the Manufactured Product.
6.6 The Buyer must keep the proceeds in a separate bank account until the liability to Stramit is discharged.
6.7 If the amount payable for all Goods sold by Stramit to the Buyer is greater than the sum of:
6.7.1 the proceeds actually received by Stramit in respect of all dealings by the Buyer with the Goods (including the sale of Re-Sold Goods or Manufactured Product);
6.7.2 all other payments received by Stramit in respect of the Goods, then the difference remains a debt owing by the Buyer to Stramit.
6.8 Where the Buyer has not paid for the Goods in full by the due date for payment, then the Buyer irrevocably authorises Stramit to repossess the Goods and to enter any site owned, possessed or controlled by the Buyer at any time and without notice to search for, inspect or repossess the Goods, whether such Goods are in their original form, or in a modified form or mixed with other products of the Buyer. Stramit is not liable to the Buyer as a result of any action taken pursuant to this clause, except to the extent that Stramit has been negligent or breached the law or the Contract. Stramit may delay taking action to dispose of or retain the repossessed Goods under the PPS Act for a period of up to 12 months.
6.9 Stramit’s property in the Goods remains absolute even if the Goods have become fixtures to the premises of the Buyer or a third party. If Stramit enters those premises to reclaim possession of the Goods and incurs any liability to a third party in connection with the entry or rec- lamation, or if the Buyer suffers any loss or damage as a result of the entry or reclamation, then Stramit will not be liable to the Buyer for any liability, loss or damage and the Buyer indemnifies Stramit against any liability, loss or damage to any third party except to the extent Stramit has been negligent or breached the law or the Contract.6.10 The provisions of this clause 6 apply despite any arrangement between the parties under which Stramit grants the Buyer credit.
7. DESCRIPTION OF BUILDING PRODUCTS AND SAMPLES
7.1 All physical samples and descriptions, specifications, illustrations, drawings, data, dimensions and weights in respect of the Goods contained in catalogues, the Price List or other Stramit advertising material are approximate, and are only intended by Stramit to be a general description.
7.2 Stramit may produce Goods with minor modifications from any of its samples, drawings and specifications (within acceptable manufactur- ing tolerances).
7.3 Stramit is not liable to the Buyer for any loss or damage suffered by the Buyer as a result of the Buyer relying upon any such specifications, illustrations, drawings, data, dimensions, weights or the characteris- tics of any samples except to the extent Stramit has been negligent or breached the law or the Contract.
8. TOOLS, EQUIPMENT, PATTERNS, DESIGNS AND SYSTEMS OF MANUFACTURE
8.1 Any tool, equipment, pattern, design or system of manufacture (Manufacturing Devices) acquired and used by Stramit in filling an Order remains the property of Stramit and cannot be used without Stramit’s prior written authority.
8.2 Stramit may charge the Buyer for Stramit’s acquisition and use of any Manufacturing Device. Payment of such charge will not vest in the Buyer any intellectual property rights or other rights in the Manufacturing Device.
8.3 Stramit may hire or lend tools or equipment to a Buyer on agreed terms. Stramit will invoice the Buyer for hire and delivery charges after the tools or equipment are in possession of the Buyer. The Buyer must pay the amount invoiced within 30 days of the invoice date.
8.4 The Buyer indemnifies and holds harmless Stramit against any claim, demand or suit arising out of any loss, damage or personal injury caused to the Buyer, its employees and agents or a third party by a tool or equipment provided by Stramit to the Buyer except to the extent Stramit has been negligent or breached the law or the Contract.
9. BUYER’S SPECIFICATIONS OR MATERIALS AND SPECIAL BUILDING PRODUCTS
9.1 If the Buyer is not a Consumer, and the Contract is not a Small Business Contract, then the Buyer agrees that: 6.4 fiduciary agent of Stramit and may sell the Manufactured Product.If the Buyer re-sells or deals with the Goods or the Manufactured Product before title to the Goods passes to the Buyer, then the Buyer:
9.1.1 Stramit will not be responsible for any failure of any Special Building Products or lack of fitness for use or for any property damage or per- sonal injury whatsoever caused by the Special Building Products. 6.4.1 assigns absolutely and unconditionally in favour of Stramit the Buyer’sentitlement to all the proceeds of the re-sale or dealing, and must notify the purchaser in writing of the assignment at the time of the re-sale or dealing; and6.4.2 will hold such part of the proceeds of the re-sale or dealing on trust for and as the fiduciary agent of Stramit immediately when they are
9.1.2 the Customer agrees that it does not rely on the skill or judgment of Stramit in relation to the suitability of any Special Building Products goods for a particular purpose; and
9.1.3 any advice, recommendation, information or assistance provided by Stramit is provided without liability to Stramit whatsoever.9.2 If the Buyer is a Consumer, or the Contract is a Small Business
9.2 If the Buyer is a Consumer, or the Contract is a Small Business Contract, and Stramit, then the Buyer acknowledges and agrees that:
9.2.1 it must install and operate the Special Building Products goods in accordance with any applicable installation instructions and/or manuals, and with professional skill, competence and due care having regards to the complexity and nature of the work; and
9.2.2 any advice, recommendation, information or assistance provided by Stramit, is provided in good faith, relying upon the accuracy and completeness of information provided by Buyer to Stramit.
9.3 If the Buyer is not a Consumer, and the Contract is not a Small Business Contract the Buyer will indemnify and hold Stramit harmless from:
9.3.1 any direct or indirect loss or damage caused to, or suffered by, the Buyer or to any third party by the Special Building Products and the Buyer releases Stramit from all liability in respect of any fault or defect in any Special Building Product;
9.3.2 any claim, demand or suit arising out of Stramit’s use of or reliance upon any design, specification or drawing provided to Stramit by the Buyer.9.3.2 any claim, demand or suit arising out of Stramit’s use of or reliance upon any design, specification or drawing provided to Stramit by the Buyer.
9.4 The Buyer warrants and represents that any designs, specifications or drawings it provides to Stramit for the manufacture of Special Building Products will not breach or infringe any copyright, patent or registered design or any other right of any third party. If the Buyer is not a Consumer, and the Contract is not a Small Business Contract, the Buyer will indemnify and forever hold Stramit harmless from any loss, damage, liability or costs suffered or incurred by Stramit arising from a breach by the Buyer of this warranty and representation.
9.5 If Stramit, on request of the Buyer, processes the Buyer’s materials, Stramit will not warrant that the materials supplied by the Buyer are suitable for such processing.
9.6 Stramit will not be liable for any:
9.6.1 failure of any processed Buyer’s materials; or
9.6.2 failure of any Goods manufactured using the Buyer’s materials; or
9.6.3 damage caused by or connected with the Buyer’s materials at any time during or after processing by Stramit.
9.7 The Buyer must bear any additional expense or the cost of:
9.7.1 any testing or inspection of Goods manufactured using the Buyer’s materials or any Special Building Products; and
9.7.2 any delay in processing caused by any defect in the Buyer’s materials or by the nature of the Buyer’s materials.
10. LIMITATION OF LIABILITY
10.1 Unless agreed in writing by Stramit, Stramit will not accept the return of goods. Goods accepted for return by Stramit may attract a charge to recover costs, restocking, disposal and repackaging charges. The amount of this charge will be determined by Stramit and recoverable from the Buyer. Proof of purchase from Buyer must accompany all goods returned to Stramit
10.2 If the Buyer is a Consumer or the Contract is a Small Business Contract, the provisions of this clause 10.2 apply:
(a) the Goods and Services come with guarantees that cannot be excluded under the Australian Consumer Law. Subject to the Australian Consumer Law, Stramit’s obligations to the Buyer in respect of a breach of any term, warranty or condition of a contract (whether implied by statue or otherwise) will, at Stramit’s option, be limited to:
(i) the repair or replacement of the Goods or the supply of equivalent Goods; or
(ii) paying for the cost of repair or replacement of the Goods or supply of equivalent Goods; or
(iii) in the case of Services, the re-supply of Services or paying for the cost of resupplying the Services by a service provider approved in writing by Stramit.
10.3 Stramit’s obligations, if clause 10.2 applies, do not include:
(i) the cost of removing defective Goods whether installed or otherwise;
(ii) the cost of installing replacement Goods; or
(iii) defects in Goods caused by improper installation or improper maintenance or care of Goods, or related components, or normal wear and tear.
10.4 Subject to clause 10.2, if the Buyer is not a Consumer or the Contract is not a Small Business Contract, all terms, representations, guarantees, implied warranties and conditions, whether implied by statute or otherwise, including as to merchantability, description, quality, suitability, or fitness for purpose as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. Stramit does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified except to a limited extent, as between Stramit and the Buyer by law.
10.5 Stramit’s obligations to the Buyer in respect of a breach of any a non-excludable term, warranty or condition of a contract (whether implied by statue or otherwise) will, at Stramit’s option, be limited to:
10.5.1 the repair or replacement of the Goods or the supply of equivalent Goods; or
10.5.2 paying for the cost of repair or replacement of the Goods or supply of equivalent Goods; or
10.5.3 in the case of Services, the re-supply of Services or paying for the cost of resupplying
10.6 Stramit’s obligations if clause 10.5 applies do not include:
10.6.1 the cost of removing defective Goods whether installed or otherwise;
10.6.2 the cost of installing replacement Goods; or
10.6.3 defects in Goods caused by improper installation or improper maintenance or care of Goods or related components or normal wear and tear.
10.7 To the extent permitted by law, Stramit will not be liable to the Buyer or any other person for any direct, indirect, special, incidental or consequential loss or damage (including loss or damage caused by negligence or any wilful act or default of Stramit, its employees or agents) whatsoever arising from the use of the Goods, or a breach of a contract under clause 2.2 or any statutory implied warranty, term or condition in relation to the Goods. In this clause, “direct, indirect, special, incidental or consequential loss or damage” includes (a) any loss of income, profit or business; (b) any loss of goodwill or reputation; and (c) any loss of value of intellectual property.
10.8 To the extent permitted by law, Stramit will not be liable to the Buyer, its employees or agents for any costs, claims, damages or demands arising from personal injury, loss or damage whatsoever occurring by reason of:
10.8.1 the Goods or their design, production or processing;
10.8.2 the Services;
10.8.3 any act or omission of Stramit, its employees or agents; or
10.8.4 any statement, representation, recommendation, advice, supervision or assistance made or given by an employee or agent of Stramit, whether oral or written.
10.9 Stramit will not be responsible for the consequences of any technical advice given by its employees or agents in relation to the design, specifications, installation or use of Goods. The Buyer acknowledges that it will not rely and has not relied on any skill or judgment of Stramit, its employees or agents about the suitability of any Goods and/or Services for a particular purpose.
10.10 The Buyer acknowledges that Stramit does not make and has not made any representation or warranty regarding the Goods and/or Services or any matter which is or might be relevant to the Buyer other than as set out in these Sale Terms.
11. INDEMNITIES RELATING TO ACCESSING PREMISES
11.1 Any Buyer, or its agent, employee or contractor (Buyer’s Representative) who enters Stramit’s premises does so at his/her own risk. Stramit will not be liable for any loss, damage or injury caused by any act or omis- sion whatsoever whilst the Buyer’s Representative attends Stramit’s premises. The Buyer indemnifies and will forever hold Stramit harmless against all claims, demands or suits made by a Buyer’s Representative in connection with his/her attendance at Stramit’s premises.
11.2 Where Stramit or its agent, employee or contractor (Stramit Representative) enters upon a Delivery Site, the Buyer must provide full and safe access to the Delivery Site and ensure that the Delivery Site is compliant with all occupational health and safety legislation and the Buyer will be liable for, and must indemnify Stramit against the costs of any loss or damage to property and personal injury to any Stramit Representative occurring directly or indirectly as a result of the Buyer’s failure to comply with this clause.
12. GENERAL MATTERS
12.1 Stramit may vary or waive any or all of these Sale Terms at any time and will notify the Buyer in writing of any variation or waiver.
12.2 The failure of Stramit to exercise a right or remedy, or any delay by Stramit in exercising a right or remedy, or the exercise by Stramit of only part of a right or remedy, or the granting of any indulgence by Stramit in favour of the Buyer does not:
12.2.1 affect Stramit’s rights against the Buyer;
12.2.2 constitute a waiver of any term or condition; or12.2.3 prohibit Stramit from exercising that right or remedy in relation to that breach or any other breach.
12.3 A waiver of a breach of a term or condition does not constitute a waiver of another breach of the same term or any other term.
12.4 The Buyer agrees that these Sale Terms shall be construed according to the laws of the State or Territory as Stramit may in its sole discretion determine. Proceedings by either Stramit or the Buyer may be instituted and/or continued in such State or Territory as Stramit may in its sole discretion determine. Failing such determination the Buyer consents to any proceedings being instituted and heard by any appropriate Court sitting in the State of New South Wales applying the laws of that State.
12.5 The Buyer must not assign any of its rights or obligations under these Sale Terms without the prior written approval of Stramit.
12.6 Stramit will not be liable for any delay or failure to fill an Order to the extent and for so long as performance is prevented or delayed by:
(a) any event or circumstance beyond Stramit’s power or control;
(b) any delay or failure of supply by any of Stramit’s suppliers; or
(c) a breakdown in Stramit’s or its contractor’s tools, equipment, vehicles or machinery.
12.7 If all or part of a clause in these Sale Terms is void, illegal or unenforceable, it may be severed without affecting the enforceability of any other provision.
12.8 If the Buyer is acting as the trustee of any trust (whether disclosed or not), then:
12.8.1 the Buyer declares that it is entering into the Contract both in its own capacity and as trustee of the trust with the ability to bind and the intention of binding, both;
12.8.2 the Buyer shall be liable both in its own name and as trustee of the trust; and
12.8.3 the Buyer acknowledges that the assets of the trust shall be available to meet payment and obligations under the Contract, and of the Buyer’s accounts.
12.9 A breach of these Sale Terms is a breach of the Credit Terms.