TERMS & CONDITIONS OF SALE
1.1 Currency: These Terms + Conditions apply to the supply of all Goods by us to you from the date that you accept these Terms & Conditions.
1.2 Acceptance: You accept these Terms + Conditions when:
1.2.1 You submit an Order;
1.2.2 You accept delivery of, or any part of, the Goods pursuant to an Order; or
1.2.3 You make Payment, or partial Payment, for any Goods supplied by us.
2. CATALOGUES AND ADVERTISING MATERIALS
2.1 Product Availability: We reserve the right to limit purchases.
2.2 Product Variation: Accessories in some illustration will vary. Product will vary in finish and colour from time to time.
2.3 Website: Due care has been taken in preparation of this website however no responsibility is accepted for any errors or omissions with product descriptions, specifications or any other information presented on the website. Customers are advised that they should check all information provided before purchasing.
2.4 External websites: We accept no liability for any information provided by external websites, links to these websites are provided for customer convenience and should not be construed as any endorsement, approval, recommendation or preference by Acacia Products.
2.5 Additional conditions: Unless otherwise agreed by us in writing, we will not be bound by any conditions (express or implied) added or provided by you, whether in an Order or otherwise.
3. ORDER ACCEPTANCE & DELIVERIES
3.1 Orders: We reserve the right to limit or reject any orders without providing reason. Your
receipt of an electronic or other form of order confirmation does not indicate our acceptance of your order, nor does it constitute confirmation of our offer to sell.
3.2 Availability: All orders are subject to stock availability. We accept no liability if the item ordered is out of stock, however as part of our customer service commitment we will notify you as soon as possible.
3.3 Prices: All prices are in $AUD and include GST. Delivery charges are additional to listed prices.
3.4 Deliveries: Will be provided as part of the service only when goods and delivery have been paid for and recipt of the same is confirmed by Acacia Products.
3.5 Pickup: If goods are held for pickup by the customer or agent valid proof of identity and written consent for any agent will be required for security reasons.
4. DEFECTS + RETURN OF GOODS
4.1 This clause 3 is subject to clause 5 (Exclusions and Limitations), clause 6 (Statutory Rights) and any other statutory or legal right whether under these Terms + Conditions or otherwise.
4.2 Returns: You should inspect the Goods immediately once they are delivered and may only return the Goods at your cost if:
4.2.1 They do not materially comply with the Order; or
4.2.2 If permitted by law, including the ACL.
4.3 Notification:If you wish to return anyGoods delivered to you, you must give to us:
4.3.1 Notice within a reasonable time of your receipt of the Goods. In ordinary circumstances we would consider a reasonable period of time to be within 30 days of delivery; and
4.3.2 The original Invoice details.
4.4 Replacement or credit: If we accept the return of Goods from you, we will replace the returned Goods. We will not provide refunds and do not provide alternatives or replacement for mistakes made by the customer when ordering.
4.5 Payment for other Goods: You may not withhold any payment due to us in respect of any other Goods pending the resolution of a claim for a defect.
4.6 Goods damaged in transit: If the Goods are damaged in the course of being delivered to you:
4.6.1 You must notify us of any claim for Goods damaged in transit within a reasonable time of delivery. In ordinary circumstances we would consider a reasonable period of time to be within 30 days of delivery; and
4.6.2 Subject to our acceptance of your claim under this clause 3, we will replace the relevant Goods.
5. EXCLUSIONS AND LIMITATIONS
5.1 ACL exception: The exclusions and limitations in this clause 5 are subject to clause 6 (Statutory Rights).
5.2 Excluded rights: All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to these Terms + Conditions, that are not contained in it, are excluded to the fullest extent permitted by law
5.3 Limitation of liability: Any liability arising in relation to Goods the subject of your Order or that we supply to you, however arising and whether for consequential loss or otherwise, including any liability arising by virtue of any representation or warranty, whether express or implied by law, is hereby excluded to the fullest extent permitted by law.
5.4 Limitations: No warranty is given and we will not be liable for: In the case of Goods
5.4.1 Alterations to Goods for which we are not responsible;
5.4.2 Damage or failure caused by unusual, non recommended (including improper installation), negligent or improper use or application of the Goods; or
5.4.3 Loss caused by any factors beyond our control.
5.5 Indirect loss: We will not be liable for any special, indirect, consequential or economic loss or damage or loss of profits (in contract or tort or arising from any other cause of action) suffered by you or any other person resulting from any act or omission by us (including breach, termination or non-observance of the terms of an Order or agreement which incorporates these Terms + Conditions).
5.6 Total liability: Our total liability for breach of these Terms + Conditions or breach of our contractual obligations or duties at law or in equity (however arising) is limited at our option to:
In the case of Goods
5.6.1 The replacement of the Goods or the supply of equivalent goods;
5.6.2 The repair or rectification of the Goods; or
5.6.3 The payment of the cost of the repair or rectification of the Goods.
5.7 No reliance: You acknowledge and agree that:
5.7.1 You have and will make your own assessment of the fitness for purpose and suitability of any Goods supplied to you;
5.7.2 You do not and will not rely on our skill or judgment nor that of any person by whom any prior negotiations or arrangements in relation to the acquisition of any Goods were conducted or have been or will be made; and
5.7.3 You have not made nor will make known to us or a manufacturer of goods (directly or via any person and whether expressly or impliedly) the particular purpose for which you acquire Goods.
5.8 Third party work: If we obtain goods or services from a third party in order to carry out your instructions or complete an Order:
5.8.1 We will not be liable for any breach of these Terms + Conditions if that breach is as a result of or is connected with the supply by a third party of such goods or services;
5.8.2 We acquire such goods or services as agent for you not as principal and will have no liability to you in relation to the supply of these goods or services;
5.8.3 Any claim by you in relation to the supply of such goods or services must be made directly against that third party; and
5.8.4 You must pay for such goods or services from the third party plus the cost of or relevant fee for us performing such services as agent for you (whether separately identified or not). You do not require us to account to you for any commissions or benefits we may receive from such a third party supplier in connection with the supply of such goods or services to you and authorise us to contract on your behalf as we think fit.
5.9 We give no warranty in respect of any goods or services that are supplied or carried out or provided to you by a third party even where forming part of an Order. Any warranties, statutory guarantees or other rights will be governed by the terms of supply by that provider to you and relevant laws.
6. STATUTORY RIGHTS
6.1 ACL rights: In circumstances where you are acquiring Goods from us as a ‘consumer’ for the purposes of (and as defined in section 3 of Schedule 2 of) the ACL, we acknowledge and agree that certain statutory guarantees and rights shall apply to you as provided by relevant laws but subject to these Terms + Conditions as applicable and where permitted by relevant laws.
6.2 No restriction: Nothing in these Terms + Conditions excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include the ACL and the Sale of Goods Act (NSW) 1923 and corresponding provisions and relevant laws of State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the purchasers of goods and services in various circumstances.
6.3 Unfair contract: If section 23 of the ACL applies to any provisions in these Terms + Conditions, any such provision(s) shall be void to the extent it is unfair within the meaning of section 24 of the ACL.
7. RISK + TITLE
7.1 Subject to the PPSA: The provisions of this clause 7 are subject to the provisions of the PPSA and clause 8 (Security Interest).
7.2 Risk passes on delivery: The risk in the Goods shall pass to you upon the delivery of the Goods in accordance with clause Error! Reference source not found..
7.3 Possession as bailee: After delivery of the Goods, until the full Payment has been made you shall possess the Goods as bailee only.
7.4 Insurance over Goods: If requested by us, you shall from the delivery date until we have received Payment for all Goods in full, insure the Goods for their full replacement value and provide to us upon our request evidence of such insurance.
7.5 Title: We will retain absolute title over the Goods until:
7.5.1 We have received Payment in full in respect of the Goods; or
7.5.2 The Goods are disposed of in the manner prescribed under clause 8.12.
7.6 Identification: Until full title in the Goods has passed to you, you will ensure that:
7.6.1 Any identifying plate, mark or packaging number on any of the Goods is not removed, defaced or obliterated; and
7.6.2 The Goods are identifiable and distinguishable from any other goods that may be in your possession and as to each particular Invoice of Goods.
8. SECURITY INTEREST
8.1 Security Agreement: This clause 8 sets out the Security Agreement between you (Grantor) and us (Secured Party).
8.2 Creation of Security Interest: The Grantor grants to the Secured Party a Security Interest in the Goods supplied by us to you, including all related proceeds (Collateral), as security for all or part of the Payment of any amount relating to the Goods in accordance with these Terms + Conditions or otherwise. For the avoidance of doubt, this Security Interest is also a Purchase Money Security Interest (PMSI) in the Collateral.
8.3 Ranking: Subject to the priority rules set out in the PPSA, this Security Interest ranks in priority ahead of all other security interests in the Collateral.
8.4 Continuing obligation: This Security Interest is a continuing security and the Grantor’s obligations under this Security Agreement continue until it has been terminated in accordance with this Security Agreement.
8.5 Attachment: The Security Interest attaches to the Collateral by virtue of the Grantor’s possession of the Goods as bailee under clause 7.2.
8.6 Perfection: The Grantor irrevocably gives authority to the Secured Party to register a financing statement with respect to the Security Interest on the PPSR. Despite this provision, the Secured Party may perfect this Security Interest by any other means in accordance with the PPSA.
8.7 Information: The Grantor shall provide the Secured Party with any information required for the Secured Party to register a financing statement or a financing change statement with respect to this Security Interest on the PPSR.
8.8 Identification: Until this Security Interest in the Collateral has been extinguished, the Grantor will ensure that, as far as is reasonably practicable:
8.8.1 Any identifying plate, mark or packaging number on any of the Collateral (including Goods) is not removed, defaced or obliterated; and
8.8.2 The Collateral is identifiable and distinguishable from any other goods or products that may be in the Grantor’s possession and as to each particular Invoice of Goods comprising the Collateral.
8.9 Accessions: The Grantor acknowledges that this Security Interest continues to apply to Collateral that becomes an accession to other goods.
8.10 Remedies: Until this Security Interest in the Collateral has been extinguished, if:
8.10.1 A Default Event occurs in respect of the Grantor; or
8.10.2 The Grantor is in breach of these Terms & Conditions, the Secured Party may as it sees fit and without notice to the Grantor, seize, retain or redeem the Collateral, or seek any and all remedies provided under Chapter 4 of the PPSA or any other remedies provided at law or in equity, including those set out in clause 8.11.
8.11 Right of entry: In additional to any rights given to the Secured Party under Chapter 4 of the PPSA, the Grantor irrevocably:
8.11.1 Grants the Secured Party the right to:
A Demand the immediate return of the Goods to the Secured Party;
B Enter the Grantor’s premises to search for and seize the Goods without notice or liability to the Grantor; and
C Retain, sell or otherwise dispose of those Goods in any manner it sees fit;
8.11.2 Indemnifies, and keeps indemnified, the Secured Party against any claim (including in negligence) in respect of any damage to the property of, or the premises occupied by, the Grantor or any consequential loss caused by another party arising relating to searching for and seizing any Goods in accordance with this clause 8.11.
8.12 Permitted use and sale: The Grantor may only sell or deal with any of the Collateral (including accessions) in respect of which full Payment has not been received if:
8.12.1 The Secured Party has not exercised a remedy under clause 8.10;
8.12.2 The proposed transaction is a bona fide transaction to a third party at market value conducted in the ordinary course of business of the Grantor;
8.12.3 The proposed transaction does not create a security interest in the Collateral that ranks above this Security Interest;
8.12.4 All proceeds of the proposed transaction is:
A Immediately paid to the Secured
B Held on trust for the Secured Party in a separate account, payable to the Secured Party on demand; and
8.12.5 Unless otherwise obligated by law, the Grantor does not disclose to a third party that the proposed transaction is subject to this Security Agreement or that the proceeds will be immediately paid to the Secured Party or held on trust for the Secured Party.
8.13 Costs: The Grantor shall pay all costs incurred by the Secured Party (including costs on a solicitor-client basis and debt collector’s costs) arising out of this Security Agreement, including costs in relation to:
8.13.1 Registration of a financing statement or a financing change statement;
8.13.2 Seizure, retention, redemption or any other remedy exercised pursuant to clause 8.10; and
8.13.3 The enforcement of its rights under this Security Agreement (including matters incidental to it).
8.14 Extinguishment: The Security Interest is extinguished only if:
8.14.1 One of the following applies:
A All amounts payable in relation to the Collateral have been paid in full;
B The Collateral has been dealt with by the Grantor pursuant to clause
C A third party has taken free of this Security Interest as provided by the PPSA; and
8.14.2 All obligations under this Security Agreement have been satisfied by the Grantor, including the obligation to pay costs as set out in clause
8.15 Removal: The Secured Party acknowledges its obligation to lodge a financing change statement to remove this Security Interest from the PPSR upon the extinguishment of this Security Interest in accordance with clause 8.14.
8.16 Waiver of notice: Notice requirements under sections 95, 118, 121(4), 130, 132 and 135 of the PPSA shall not apply and not place any obligations on the Secured Party in favour of the Grantor.
8.17 Waiver of receipt of statements: The Grantor irrevocably waives its right to receive from the Secured Party a copy of any financing statement, financing change statement or verification statement that is registered, issued or received at any time in relation to this Security Agreement.
8.18 Change of name: The Grantor shall immediately notify the Secured Party in writing of any change of name of the Grantor.
8.19 Acknowledgement: The Grantor acknowledges due notice of this Security Agreement with acceptance of these Terms + Conditions.
9.1 Indemnity: You agree to indemnify and keep us indemnified in respect of all damages, losses, costs and expenses (including legal costs) that we may incur as a result of your breach or alleged breach of these Terms + Conditions.
9.2 Termination: If a Default Event occurs:
9.2.1 We may, without limiting any other right we have under these Terms + Conditions, terminate any outstanding Order and any contract for the supply of Goods to you; and
9.2.2 All Payments and any other money under these Terms + Conditions becomes immediately payable.
9.3 Lawful purpose: You shall ensure that the Goods are used only for lawful purposes and in accordance with any applicable laws.
9.4 Binding: These Terms + Conditions shall bind our successors, administrators and permitted assigns and your executors and permitted assigns, or, being a company, its successors, administrators and permitted assigns.
9.5 Assignment: We may without notice to you assign, transfer and/or sub-contract our rights and/or obligations (in whole or in part) under these Terms & Conditions. You may not assign, transfer, hold on trust or otherwise delegate any of your rights or obligations under these Terms & Conditions without our prior written consent.
9.6 Time of the essence: Time shall be of the essence in relation to any date or period under these Terms + Conditions.
9.7 New Terms + Conditions: If we adopt new terms and conditions for the sale of Goods:
9.7.1 You will be given written notice (if you are a Customer at the relevant time); and
9.7.2 Unless otherwise agreed, they will apply to the supply of Goods after you accept such new terms and conditions.
9.8 Variation: We may vary these Terms & Conditions by providing you 7 days written notice.
9.9 Force Majeure: If a Force Majeure Event occurs, we may:
9.9.1 Totally or partially suspend any Order, any part of an Order or any deliveries relating to an Order during any period in which we may be prevented or hindered from delivering by our normal means of supply or delivery due to that Force Majeure Event; and
9.9.2 Elect to extend at our discretion the period for performance of an obligation under these Terms + Conditions as is reasonable in all the circumstances.
9.10 Severability: Each clause in these Terms + Conditions is severable and if any clause is held to be illegal or unenforceable, then the remaining clauses will remain in full force and effect.
9.11 Waiver: No failure, delay, relation or indulgence on our part in exercising any power, right or remedy precludes any other or further exercise of that or any other power, right or remedy.
9.12 Governing law: These Terms + Conditions shall be governed by the laws of the State of New South Wales.
10. INTERPRETATION + DEFINITIONS
10.1 Personal pronouns: Except where the context otherwise provides or requires the terms we, us or our refers to the Company and the terms you or your refers to the Customer.
10.2 Defined terms: In these Terms & Conditions, unless otherwise provided, the following terms shall have their meaning as specified:
ACL means the Australian Consumer Law under the Consumer and Competition Act 2010 (Cth) as amended.
Collateral means property that is subject of a security interest.
Company means Acacia Products Pty Ltd (ABN 45 070 921 569).
Customer means any person or entity that places an Order with us and agrees by conduct or by virtue of notice or otherwise to be bound by these Terms + Conditions, including any related company, related party, officer and authorised person of the relevant person.
Default Event means any one of the following events:
(a) You fail to make any payment when due, whether for the Goods or otherwise;
(b) Winding Up commences against you;
(c) A receiver is appointed to you;
(d) You become insolvent, bankrupt or commit an act of bankruptcy;
(e) Proceedings are commenced or an application is made for the appointment of any persons listed in items (b) to (e) above; or
(f) A mortgagee or their agent enters into possession of your assets.
Default Interest means as defined in clause.
Force Majeure Event means circumstances beyond our reasonable control shall include, but not be limited to compliance with any laws, regulations, orders, acts, instructions or priority request of any government, or any department or agency, civil or military authority, acts of God, acts of the public enemy, your acts or omissions, fires, floods, strikes, lockouts, embargoes, wars, labour or material shortages, riots, insurrections, defaults of our suppliers or subcontractors, delays in transportation, or loss or damage to Goods in transit.
Goods means goods sold by the Company from time to time, including extruded, fabricated and injection moulded plastics.
Grantor means the person who has the interest in property to which a security interest is attached.
GST means a goods and services tax, or a similar value added tax, levied or imposed by the GST Law.
GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Invoice unless otherwise agreed means the invoice issued upon the delivery of the Goodsspecified in your Order.
Intellectual Property Rights means all forms of intellectual property rights (whether registered or unregistered) in copyright, designs, patents, trade marks, domain names, trade secrets, know-how, confidential information, and all other similar proprietary rights and all extensions and renewals thereof anywhere in the world which currently exist and/or are recognised in the future.
Material means any material in which you have Intellectual Property Rights provided by you for use by us in the production, development and supply of the Goods to you.
Order means an order for Goods in writing received by us.
Payment means payment of any amount relating to Goods in accordance with these Terms + Conditions.
PMSI means a purchase money security interest as defined by section 14 of the PPSA.
PPSA means the Personal Property Securities Act 2009 (Cth) as amended, including any regulations made pursuant to it.
PPSR means the Personal Property Securities Register.
Quote means a quotation by us for the supply of particular Goodscontaining details as specified in clause 2.2.
Secured Party means a person who holds the benefit of a security interest.
Security Agreement means the security agreement set out in clause 8 (Security Interest).
Security Interest means the security interest created in clause 8 (Security Interest).
Winding Up means commencing to be wound up, or suffering a provisional liquidator, liquidator, official manager or any other administrator of the affairs of insolvent companies to be appointed.