- “ALM” means Angle Linemarking (QLD) Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Angle Linemarking (QLD) Pty Ltd.
- “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
- “Goods” means all Goods or Services supplied by ALM to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
- “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between ALM and the Customer in accordance with clause 5 below.
- “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
- The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
- These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and ALM.
- The Customer accepts that environmental factors such as temperature or other environmental/atmospheric conditions may affect the drying and/or curing time of the Goods. ALM shall not be held responsible for any losses or damage arising from such conditions where ALM recommends a delay in provision of the Services for a more favourable time to obtain optimal results and the Customer authorises the Services to proceed (in writing) against such recommendations.
Electronic Transactions (Queensland) Act 2001
- Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Change in Control
- The Customer shall give ALM not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by ALM as a result of the Customer’s failure to comply with this clause.
Price and Payment
- At ALM’s sole discretion the Price shall be either:
- as indicated on any invoice provided by ALM to the Customer; or
- ALM’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
- ALM reserves the right to change the Price if a variation to ALM’s quotation is requested. Any variation from the plan of scheduled Services (including, but not limited to, any variation as a result of additional Services required due to unforeseen circumstances such as revision to plans, unfavourable weather conditions, limitations to accessing the site for any reason including cars parked or other obstructions, availability of machinery, safety considerations, prerequisite work by any third party not being completed, surfaces not being properly prepared, or as a result of any increase to ALM’s in the cost of materials and labour) will be charged for on the basis of ALM’s quotation and will be shown as variations on the invoice.
- Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by ALM, which may be:
- by way of instalments/progress payments in accordance with ALM’s payment schedule;
- the date specified on any invoice or other form as being the date for payment; or
- failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Customer by ALM.
- Payment may be made by electronic/on-line banking or by any other method as agreed to between the Customer and ALM.
- Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to ALM an amount equal to any GST ALM must pay for any supply by ALM under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
- At ALM’s sole discretion delivery of the Goods and/or Services shall take place when the Services are supplied to the Customer at the Customer’s nominated address.
- Delivery of the Services to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
- At ALM’s sole discretion, the cost of delivery is included in the Price.
- ALM may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
- Any time specified by ALM for delivery of the Services is an estimate only and ALM will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that ALM is unable to supply the Services as agreed solely due to any action or inaction of the Customer then ALM shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
- Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery where applicable.
- The Customer acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. ALM will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
- ALM shall not be liable for inferior existing paintwork where ALM’s paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish.
- Where ALM gives advice or recommendations to the Customer, or the Customer’s agent, regarding the suitability of applying paint where the moisture content reading is not at a favourable level for paint adhesion, and such recommendations are not acted upon then ALM shall require the Customer or their agent to authorise commencement of the Services in writing. ALM shall not be liable in any way whatsoever for any damages or losses that occur due to poor paint adhesion as a result.
- The Customer acknowledges that Goods supplied may:
- fade or change colour over time; and
- expand, contract or distort as a result of exposure to heat, cold, weather; and
- mark or stain if exposed to certain substances; and
- be damaged or disfigured by impact or scratching.
Accuracy of Customer’s Plans and Measurements
- ALM shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, ALM accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
- It shall be the Customer’s responsibility to advise ALM of any changes to plans or scope of Services required. Should the Customer fail to inform ALM of any changes, then any associated costs incurred by ALM in correcting any paintwork due to out-of-date plans being supplied to ALM or additional items required shall be charged as a variance in accordance with clause 5.2.
- The Customer shall ensure that ALM has clear and free access to the work site at all times to enable them to undertake the Services. ALM shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of ALM.
Compliance with Laws
- The Customer and ALM shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
- The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
- The Customer agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
- ALM and the Customer agree that ownership of the Goods shall not pass until:
- the Customer has paid ALM all amounts owing to ALM; and
- the Customer has met all of its other obligations to ALM.
- Receipt by ALM of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
- It is further agreed that:
- until ownership of the Goods passes to the Customer in accordance with clause 11.1 that the Customer is only a bailee of the Goods and must return the Goods to ALM on request.
- the Customer holds the benefit of the Customer’s insurance of the Goods on trust for ALM and must pay to ALM the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
- the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for ALM and must pay or deliver the proceeds to ALM on demand.
- the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of ALM and must sell, dispose of or return the resulting product to ALM as it so directs.
- the Customer irrevocably authorises ALM to enter any premises where ALM believes the Goods are kept and recover possession of the Goods.
- ALM may recover possession of any Goods in transit whether or not delivery has occurred.
- the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of ALM.
- ALM may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
Personal Property Securities Act 2009 (“PPSA”)
- In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
- Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Customer to ALM for Services – that have previously been supplied and that will be supplied in the future by ALM to the Customer.
- The Customer undertakes to:
- promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which ALM may reasonably require to;
- register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
- register any other document required to be registered by the PPSA; or
- correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii);
- indemnify, and upon demand reimburse, ALM for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
- not register a financing change statement in respect of a security interest without the prior written consent of ALM;
- not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of ALM;
- immediately advise ALM of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
- ALM and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
- The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
- The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
- Unless otherwise agreed to in writing by ALM, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
- The Customer must unconditionally ratify any actions taken by ALM under clauses 12.3 to 12.5.
- Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
- In consideration of ALM agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
- The Customer indemnifies ALM from and against all ALM’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ALM’s rights under this clause.
- The Customer irrevocably appoints ALM and each director of ALM as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
- The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify ALM in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Customer must allow ALM to inspect the Goods.
- Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
- ALM acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
- Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, ALM makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. ALM’s liability in respect of these warranties is limited to the fullest extent permitted by law.
- If the Customer is a consumer within the meaning of the CCA, ALM’s liability is limited to the extent permitted by section 64A of Schedule 2.
- If ALM is required to replace the Goods under this clause or the CCA, but is unable to do so, ALM may refund any money the Customer has paid for the Goods.
- If the Customer is not a consumer within the meaning of the CCA, ALM’s liability for any defect or damage in the Goods is:
- limited to the value of any express warranty or warranty card provided to the Customer by ALM at ALM’s sole discretion;
- limited to any warranty to which ALM is entitled, if ALM did not manufacture the Goods;
- otherwise negated absolutely.
- Subject to this clause 14, returns will only be accepted provided that:
- the Customer has complied with the provisions of clause 14.1; and
- ALM has agreed that the Goods are defective; and
- the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
- the Goods are returned in as close a condition to that in which they were delivered as is possible.
- Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, ALM shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
- the Customer failing to properly maintain or store any Goods;
- the Customer using the Goods for any purpose other than that for which they were designed;
- the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
- the Customer failing to follow any instructions or guidelines provided by ALM;
- fair wear and tear, any accident, or act of God.
- ALM may in its absolute discretion accept non-defective Goods for return in which case ALM may require the Customer to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
- Notwithstanding anything contained in this clause if ALM is required by a law to accept a return then ALM will only accept a return on the conditions imposed by that law.
- Where ALM has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of ALM.
- The Customer warrants that all designs, specifications or instructions given to ALM will not cause ALM to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify ALM against any action taken by a third party against ALM in respect of any such infringement.
- The Customer agrees that ALM may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which ALM has created for the Customer.
Default and Consequences of Default
- Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at ALM’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- If the Customer owes ALM any money the Customer shall indemnify ALM from and against all costs and disbursements incurred by ALM in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, ALM’s contract default fee, and bank dishonour fees).
- Without prejudice to any other remedies ALM may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions ALM may suspend or terminate the supply of Goods to the Customer. ALM will not be liable to the Customer for any loss or damage the Customer suffers because ALM has exercised its rights under this clause.
- Without prejudice to ALM’s other remedies at law ALM shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to ALM shall, whether or not due for payment, become immediately payable if:
- any money payable to ALM becomes overdue, or in ALM’s opinion the Customer will be unable to make a payment when it falls due;
- 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
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
- ALM may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice ALM shall repay to the Customer any money paid by the Customer for the Goods. ALM shall not be liable for any loss or damage whatsoever arising from such cancellation.
- In the event that the Customer cancels delivery of Services the Customer accepts that as the Goods are custom-made, cancellation of orders for Goods will definitely not be accepted once production has commenced, or an order placed, or specially tinted paint purchased for the Services. The Customer shall be liable for any and all loss incurred (whether direct or indirect) by ALM as a direct result of any cancellation (including, but not limited to, any loss of profits).
Privacy Act 1988
- The Customer agrees for ALM to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by ALM.
- The Customer agrees that ALM may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
- to assess an application by the Customer; and/or
- to notify other credit providers of a default by the Customer; and/or
- to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
- to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.
- The Customer consents to ALM being given a consumer credit report to collect overdue payment on commercial credit.
- The Customer agrees that personal credit information provided may be used and retained by ALM for the following purposes (and for other agreed purposes or required by):
- the provision of Goods; and/or
- analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
- enabling the collection of amounts outstanding in relation to the Goods.
- ALM may give information about the Customer to a CRB for the following purposes:
- to obtain a consumer credit report;
- allow the CRB to create or maintain a credit information file about the Customer including credit history.
- The information given to the CRB may include:
- personal information as outlined in 18.1 above;
- name of the credit provider and that ALM is a current credit provider to the Customer;
- whether the credit provider is a licensee;
- type of consumer credit;
- details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
- advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and ALM has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
- information that, in the opinion of ALM, the Customer has committed a serious credit infringement;
- advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
- The Customer shall have the right to request (by e-mail) from ALM:
- a copy of the information about the Customer retained by ALM and the right to request that ALM correct any incorrect information; and
- that ALM does not disclose any personal information about the Customer for the purpose of direct marketing.
- ALM will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
- The Customer can make a privacy complaint by contacting ALM via e-mail. ALM will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
- If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
- referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
- conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
Building and Construction Industry Payments Act 2004
- At ALM’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
- Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
Service of Notices
- Any written notice given under this contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this contract;
by sending it by registered post to the address of the other party as stated in this contract;
if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
if sent by email to the other party’s last known email address.
Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
- The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which ALM has its principal place of business, and are subject to the jurisdiction of the Southport Courts in Queensland.
- Subject to clause 14 ALM shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by ALM of these terms and conditions (alternatively ALM’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
- ALM may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
- The Customer cannot licence or assign without the written approval of ALM.
- ALM may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of ALM’s sub-contractors without the authority of ALM.
- The Customer agrees that ALM may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for ALM to provide Goods to the Customer.
- Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
- Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.