For the purpose of this contract:
Consequential Loss means any loss or damage arising from a breach of contract or agreement (including breach of this contract), tort, or any other basis in law or equity including, but without limitation to, loss of profits, loss of revenue, loss of production, loss or denial of opportunity, loss of access to markets, loss of goodwill, indirect or remote or unforeseeable loss, loss of business reputation, future reputation or publicity, or any similar loss whether or not contemplated by the parties at the time of entering this contract.
Customer means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by DECO to the Customer.
Customer Supplied Items means any goods or materials provided by the Customer to DECO in order to allow DECO to provide the Services.
DECO means DECO Australia Pty Ltd ABN 38 108 720 118, its successors and assigns.
Goods means all goods supplied by DECO to the Customer (and where the context so permits will 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 DECO to the Customer.
GST means the goods and services tax imposed under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
IP Rights means patent, trademark, design, copyright or any other intellectual property right.
PPSA means the Personal Property Securities Act 2009 (Cth).
Price means all monies payable by the Customer to DECO in accordance with this contract (including with respect to the Goods and/or the Services).
Services means any services supplied by DECO to the Customer (including but not limited to applying protective coatings to Customer Supplied Items and/or Goods supplied by DECO) and includes any advice or recommendations relating the provision of such services.
2.1 Any instructions received by DECO from the Customer for the supply of Goods and the Customer’s acceptance of Goods supplied by DECO, or the Customer signing this contract (whichever occurs first) will constitute acceptance of the terms and conditions set out in this contract.
2.2 Upon acceptance of this contract by the Customer, this contract will be legally binding and can only be amended with the written consent of DECO.
2.3 Goods are supplied by DECO only on the terms and conditions set out in this contract to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override any provision of this contract.
2.4 It is the Customer’s responsibility to obtain any approvals, licences or permits necessary for the Customer to perform its obligations under this contract and the use or sale of the Goods by the Customer.
3. Price and Payment
3.1 The Price will be:
(a) as indicated on invoices provided by DECO to the Customer in respect of Goods supplied;
(b) DECO’s current price at the date of delivery of the Goods according to DECO’s current Price list; or
(c) DECO’s quoted Price (subject to clause 3.2) which will be binding upon DECO provided that the Customer accepts DECO’s quotation in writing within fourteen (14) days.
Where there is any discrepancy, the document as advised by DECO will prevail to the extent of any inconsistency.
3.2 DECO reserves the right to change the Price in the event of a variation to DECO’s quotation. Any variation may arise due to an increase as a consequence of variations in foreign currency rates of exchange and/or freight and insurance charges, additional works required due to hidden or unidentifiable difficulties beyond the control of DECO or as a result of increases to DECO in the cost of materials and labour) will be charged for on the basis of DECO’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full on the due date of the relevant invoice.
3.3 At DECO’s sole discretion and as notified by DECO to the Customer, a non-refundable deposit may be required prior to DECO commencing any works under this contract.
3.4 Time for payment for the Goods will be of the essence and will be stated on the invoice issued by DECO. If no time is stated in the invoice, then payment will be due at least three (3) business days prior to collection or despatch of the Goods or Customer Supplied Items (as the case may be).
3.5 DECO will be under no obligation to release any Goods or Customer Supplied Item unless all amounts are paid to it.
3.6 Goods purchased ex DECO can be cut to length if required, however measurements need to be confirmed in writing. Cutting surcharge applies.
3.7 If applicable, any discounts applicable to the Price will become null and void if payment is not made by the due date stated on the invoice and/or statement.
3.8 The Customer acknowledges and agrees that additional fees and charges may be charged as notified by DECO to the Customer for express orders which are requested by the Customer and agreed to by DECO and which means orders are processed and completed prior to DECO’s standard lead times.
3.9 Payment by the Customer must be made by cash, by cheque or bank cheque (on which payment method a $20.00 administration and processing fee may apply), or by credit card (on which payment method a surcharge of 2.5% of the Price may apply), or by direct credit, or by any other method as agreed to between the Customer and DECO.
3.10 Unless otherwise expressly stated, GST, delivery costs and other taxes and duties that may be applicable will be added to the Price.
4. Delivery of Goods
4.1 Delivery of the Goods will be deemed to have taken place upon the earlier of:
(a) the Customer taking possession of the Goods at DECO’s premises; or
(b) a carrier taking possession of the Goods from DECO’s premises for delivery to the Customer’s nominated address in which event the carrier will be deemed to be the Customer’s agent.
4.2 Unless otherwise expressly agreed in writing by DECO, where a quote of invoice does not include delivery costs, the costs of Delivery are:
(a) in addition to the Price; and
(b) for the Customer’s account.
4.3 The Customer must make all arrangements necessary to take Delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then DECO will be entitled to charge redelivery fees in the case where a carried has been engaged by DECO.
4.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be Delivery to the Customer for the purposes of this contract.
4.5 DECO may deliver the Goods by separate instalments. Each separate instalment must be invoiced and paid in accordance with the provisions in this contract.
4.6 The Customer must take delivery of the Goods tendered notwithstanding that the quantity so delivered is either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity does not exceed five percent (5%); and
(b) the Price will be adjusted pro rata to the discrepancy.
4.7 The failure or delay of DECO to deliver will not entitle either party to treat this contract as repudiated.
4.8 DECO will not be liable for any loss or damage whatsoever due to failure by DECO to deliver the Goods (or any of them) promptly or at all due to circumstances beyond the control of DECO.
5. Risk and insurance
5.1 All risk in the Goods passes to the Customer on Delivery. It is the Customer’s responsibility to effect carrier/freight insurance and the insurance with respect to the Goods when they are collected from DECO’s premises either by the Customer or a carrier.
5.2 Where the Goods are delivered to an unattended location then such Goods will be left at the Customer’s sole risk and it will be the Customer’s responsibility to ensure the Goods are insured adequately or at all.
6.1 DECO and the Customer agree that ownership of the Goods will not pass until:
(a) the Customer has paid DECO all amounts owing for the particular Goods (and, if applicable, any Services related to those Goods); and
(b) the Customer has met all other obligations due by the Customer to DECO in respect of all contracts between DECO and the Customer.
6.2 Receipt by DECO of any form of payment other than cash will not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then DECO’s ownership and rights in respect of the Goods will continue.
6.3 It is further agreed that:
(a) DECO will have the right of stopping the Goods in transit whether or not delivery has been made or retaining possession of the Goods (including any Customer Supplied Materials) if the Customer is in default under this contract; and
(b) DECO may commence proceedings to recover the Price notwithstanding that ownership of the Goods may not have passed to the Customer.
7. Lien and storage charges
7.1 If the Customer fails to collect the Goods or Customer Supplied Items (the Relevant Items) within one (1) month of DECO notifying the Customer that the order has been completed, then the Goods may be warehoused or otherwise held at any place or places at the sole discretion of DECO at the Customer’s expense in weekly block rates of $100.00 per case (1 cubic metre) and which will be payable by the Customer until the Customer complies with all of the requirements and conditions of DECO.
7.2 If the Customer fails to collect the Relevant Items by the time referred to in clause 7.1, then without limiting DECO’s right to charge storage fees, DECO (at its absolute discretion) may dispose of the Relevant Items, including by sale or otherwise without any further notice to the Customer. The Customer:
(a) cannot make any claim against DECO if DECO elects to exercise its rights under the preceding sentence; and
(b) must reimburse and indemnify DECO for all costs or claims incurred by DECO in connection with DECO exercising its rights under this clause.
7.3 In addition to any right of lien to which DECO may by law be entitled, DECO is entitled to a general lien on all Relevant Items in DECO’s possession for the unpaid price of any Goods and/or Services under this contract.
8. Warranty, defects and returns
8.1 The terms of this clause 8 are subject to any specific warranty to the contrary agreed to in writing by DECO under a separate document (if any) subject to agreed conditions and the location of the relevant site where the Goods will be installed. Any such specific warranty condition must be sought, and applied for, by the Customer before an order is placed and the approval of DECO will always remain subject to location and conditions sought etc.
8.2 To the fullest extent permitted by law, liability of DECO for any breach of this contract arising as a result of the negligence of DECO or for breach of any conditions or warranty implied in this contract or by law is limited to one of the following at DECO’s option:
(a) In the case of Goods – the replacement of the Goods or the supply of equivalent Goods; the repair of the Goods; the payment of the costs of replacing the Goods or of acquiring equivalent Goods; or the payment of the cost of having the Goods repaired.
(b) In the case of Services – the supplying of the services again; or the payment of the cost of having the services supplied again.
8.3 Subject to clause 8.7, to the full extent permitted by law all other warranties or liabilities imposed or implied whether by law or by statute are expressly negatived.
8.4 The Customer assumes all risk and liability resulting from the use of the Goods or the Services either alone or in conjunction with other goods or materials even if DECO had or should have had prior knowledge of use to which the Goods and/or Services would be put.
8.5 The Customer must inspect the Services on completion (or Goods on delivery) and must within five (5) business days of Delivery (time being of the essence) notify DECO in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.
8.6 The Customer must afford DECO an opportunity to inspect the Services or Goods (as the case may be) within a reasonable time following delivery if the Customer believes the Services or Goods (as the case may be) are defective in any way. If the Customer fails to comply with these provisions the Services and/or the Goods will be deemed to be free from any defect or damage.
8.7 In relation to Goods or Services the subject of an order for less than $40,000 to which the Australian Consumer Law applies, DECO acknowledges that the goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure. Where Goods are defective due to the Customer’s requirements or specifications, DECO will not be liable.
8.8 To the fullest extent permitted by law, DECO will not accept any returns, including for change of mind or the Goods and/or the Services not being fit for the purpose or use as intended by the Customer. In that respect the Customer acknowledges and agrees that it has made its own enquiries and undertaken its own due diligence with respect to the Goods and Services provided by DECO and satisfied itself in that regard. If DECO (at its absolute discretion) accepts a return, then a restocking fee of 25% of the value of the supplied Goods will apply.
9. Default and Consequences of Default
9.1 Interest on overdue invoices will accrue daily from the date when payment becomes due, until the date of payment, at the rate of 18% per annum.
9.2 In the event that the Customer’s payment is dishonoured for any reason the Customer will be liable for any dishonour fees incurred by DECO.
9.3 If the Customer:
(a) defaults in payment of any invoice when due;
(b) defaults in the performance of any obligation imposed on it under this contract; and/or
(c) breaches any warranty or representation contained in the contract, the Customer indemnifies DECO from and against all liability, claims, losses, damages, costs and fines and disbursements incurred by DECO in connection with that default (including, without limitation, pursuing the debt including legal costs on a solicitor and own client basis and DECO’s collection agency costs). For the avoidance of doubt, DECO does not have to incur an expense or cost before claiming the benefit of the indemnity provided under this clause.
9.4 Without prejudice to any other remedies DECO may have, if at any time the Customer is in breach of any obligation (including those relating to payment) DECO may suspend or terminate the supply of Goods and/or the Services to the Customer and any of its other obligations under this contract. DECO will not be liable to the Customer for any loss or damage the Customer suffers because DECO has exercised its rights under this clause.
9.5 Without prejudice to DECO’s other remedies at law DECO will be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to DECO will, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to DECO becomes overdue, or in DECO’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer 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, administrator, liquidator (provisional or otherwise), trustee in bankruptcy or similar person is appointed in respect of the Customer or any asset of the Customer.
10. Cancellation, variations and delays
10.1 DECO may cancel this contract or cancel delivery of Goods at any time before the Goods are completed or delivered by giving written notice to the Customer if:
(a) the Customer is in default, in which case all costs incurred by DECO in that respect will be immediately due and payable by the Customer; or
(b) DECO is of the opinion that it cannot fulfill the relevant order, in which case DECO will provide a refund of the monies paid by the Customer in connection with that order.
10.2 If the Customer cancels or alters an order, or any part of an order then without prejudice to any other rights DECO has against the Customer, DECO may charge the Customer any costs incurred by DECO in fulfilling the order, including materials already acquired for the order together with the cost of any labour and tooling and losses incurred by DECO in reselling or otherwise disposing of the relevant items.
10.3 Whilst DECO will take all reasonable measures to ensure that orders are completed by the agreed time, the Customer cannot make any claim (of any nature) as a result of any delays of DECO in completing the order whether within DECO’s control or otherwise.
11. Intellectual property
11.1 DECO is not liable to the Customer for any infringement or unauthorised use of any IP Rights arising out of performance of this contract. If any dispute or claim arises with respect to any such matter then DECO may terminate this contract by notice to the Customer without any liability on the part of DECO.
11.2 All IP Rights in connection with the provision of the Goods and/or the Services, always remains the sole property of DECO. The Customer must not do anything which adversely affects the ownership of DECO or any of its related entities in connection with those IP Rights.
12. DecoSplash Website Terms
12.2 The terms and conditions contained at https://decosplash.com.au/general-terms-and-conditions are deemed to be incorporated in this contract. To the extent of any inconsistency between the provisions of this contract and the website, the terms of this contract prevail.
13. General provisions
13.1 DECO, without restriction, may provide any personal information, credit reports and any other information relating to the Customer to any insurer of DECO and the Customer irrevocably consents to the disclosure of such information.
13.2 All descriptive specifications, performance figures, drawings, data, dimensions and weights furnished by DECO or contained in catalogues, price lists or advertisements are by way of general description of the Goods only and do not form part of this contract.
13.3 Each order the Customer places is, a representation by it made at the time that it is, and will remain in the future, solvent and able to pay all of its debts as and when they fall due.
13.4 If any provision of this contract is held to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
13.5 This contract will be governed by the laws of New South Wales, Australia and are subject to the exclusive jurisdiction of the courts of New South Wales.
13.6 DECO will not be under any liability whatsoever to the Customer for any Consequential Loss.
13.7 In the event of any breach of this contract by DECO the remedies of the Customer will be limited to damages which under no circumstances must exceed the Price of the Goods.
13.8 The Customer will not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by DECO nor to withhold payment of any invoice because part of that invoice is in dispute.
13.9 DECO may license or sub-contract all or any part of its rights and obligations without the Customer’s consent. DECO may assign any or all of DECO’s rights and obligation under this contract to a third party by providing notice to the Customer.
13.10 No modification amendments or other variation of this contract will be valid and binding on DECO unless made in writing and duly executed by and on behalf of DECO.
13.11 DECO will not be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, pandemic, Government order or other event beyond the reasonable control of DECO.
13.12 Each party must keep this contract and related information confidential, except to the extent it is in the public domain through no fault of a party or if required to be disclosed by law.
13.13 The failure by DECO to enforce any provision of these terms and conditions will not be treated as a waiver of that provision, nor will it affect DECO’s right to subsequently enforce that provision.