Bowen Group Terms & Conditions Of Business
The following Terms and Conditions shall govern all dealings between us (Bowen Group Australia Pty Ltd ABN 83 113 948 119) and you the person or company or otherwise dealing with us as the Customer
All quotations and offers made by us or orders accepted by us are only made on the basis that these terms and conditions shall apply. The Terms &
Conditions contained herein shall take precedence over any other terms and conditions deemed to apply to the contractual relationship between us and you. No term or condition shall be varied, waivered, deleted or amended unless expressly stated in writing and signed by us. We may amend or vary these terms and conditions at any time by written notice to your place of business and you will be bound by any such amendments on all orders made after notice is provided.
We reserve the right to confirm in writing any quotations given by us orally when we receive your order (the “Order) for the supply by us of any goods (the “Goods”) or the performance by us of any services (the “Services”).
(a) Your Order once accepted by us either orally or in writing shall give rise to a binding contract (“the Contract”) which shall include all these terms and conditions and shall be governed by the laws of the State of Victoria.
(b) Your Order once accepted by us may not be cancelled or altered except upon terms and conditions satisfactory to us which may include payment by you of a cancellation or alteration fee for all expenses we incur by way of labour, materials, services, freight, overhead expenses, fees, duties, taxes and loss of profit or loss of opportunity.
3. Performance & Delivery
(a) Performance and delivery times are quoted in good faith and as accurately as we are able to estimate but we accept no liability for non–performance or non–delivery by a certain time unless we have given a prior written guarantee of such performance or delivery and provided therein for liquidated damages for failure to perform or deliver.
(b) Where Services or procedures quoted are performed by any sub–contractor (the “Subcontractor”) to us or goods quoted are supplied to us by any of our suppliers (the “Supplier”), the times quoted for performance or delivery are based on the Subcontractor’s or Supplier’s promised times of performance or delivery to us or upon our estimate of a reasonable performance or delivery time; and we do not accept liability for non–performance or non–delivery by a certain time unless a prior written guarantee of such performance or delivery has been provided to you in writing.
(c) The Price does not include the cost of delivery of the Goods unless otherwise stipulated in writing on the Order. Delivery by special arrangement shall be arranged by us and we reserve the right to make a charge additional to the Price for such extra service. The cost of any special packing and packing materials used in relation to the Order are at your cost notwithstanding that such cost may have been omitted from the quotation.
(d)In no event will we accept liability for any delay or failure in delivery or for delivery of the Goods by instalments if caused by any act, matter or thing beyond our control. If we deliver any of the goods by instalments, and any one of those instalments is defective for any reason:
(i) It is not a repudiation of the contract of sale formed by these conditions; and
(ii) The defective instalment is a severable breach that gives rise only to a claim for compensation in respect of that instalment.
(e) Acceptance of the goods must take place immediately following delivery and is established if you signify by words or conduct that the goods are conforming or that you retain them in spite of their nonconformity or deal with them in a way inconsistent with our ownership. Any rejection of the goods or claim in respect of short delivery must be communicated to us in writing by registered post within 7 days of delivery failing which you will be deemed to have accepted delivery and to have waived any claim for shortage in respect of the delivered goods. Such notification shall clearly state the full particulars of the nonconformity.
(f) Delivery is from our premises unless otherwise specified.
(g) We are not responsible to you or any person claiming through you for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not we are legally responsible for the person who caused or contributed to that loss or damage). We will however, provide you with such assistance as may be necessary to press claims on carriers so long as you notify us and the carriers in writing immediately after loss or damage is discovered on receipt of goods; and lodge a claim for compensation on the carrier within 3 days of the date of receipt of the goods.
(h) We reserve the right to make a reasonable charge for storage if delivery instructions are not provided by you within 14 days of a request for such instructions. You agree that we may charge for storage from the first day after we request you to provide delivery instructions. In regards to a claim for a charge for storage under this clause, you acknowledge that fulfilment of the terms of payment are established and that we shall be entitled to issue the relevant invoice on those terms.
(i) We are not under any duty to accept goods returned by you and will do so only on terms to be agreed in writing in each individual case.
(a) The price quoted for the Order (the “Price”) is subject to withdrawal by us at any time prior to our acceptance of the Order.
(b) Unless otherwise stated the Price is exclusive of Goods and Services Tax (GST).
(c) All local, State or Federal taxes or levies including where applicable GST shall be payable by you.
(d) All offers or quotations by us shall be in force for no longer than 30 days unless otherwise specified in writing by us.
5. Terms of Payment
(a) Unless otherwise negotiated between you and us our terms of payment are nett cash 14 days from date of invoice. You shall not be entitled on any grounds whatsoever either wholly or in part to withhold payment when it becomes due. Any claim or dispute gives no right for you to suspend or delay payment of the invoice.
(b) If any payment is not made by you to us on the due date thereof:
(i) We will charge an amount 4% higher than the rate specified in the Penalty Interest Rate Act 1983 (Victoria) on all overdue accounts until such time as payment is made in full;
(ii) We reserve the right, and without prejudice to our other rights hereunder and at law, to cancel orders or to suspend deliveries of other goods until such payment has been made; and
(iii) All monies owing to us including all monies owing to us for goods sold shall become immediately due and payable and you shal indemnify us against all costs (including Solicitor and own client costs, commercial agents, commissions, freight, surcharges, fees, insurances, accounting costs, loss of profit and all interest) incurred by us as a result of such default in the action taken by us in respect of the same.
(c) Any sum due by you to us under this contract shall fall due immediately on the initiation of any act or proceeding involving your solvency, Clauses 5(a) and 5(b) notwithstanding.
(d) Time is of the essence in relation to payment for goods and services. If no date for payment is stated on the invoice, quotation or order form then payment shall be made on the date of delivery of the goods or performance of the services to you.
(e) Notwithstanding clause 5(a), we may require:
(i) A deposit at the time of order; and/or
(ii) Payment of the full price of the Order prior to the supply of the Goods and/or Services, As a condition of accepting an Order.
(f) We reserve the right to render an interim invoice/s if so stipulated on the quotation or as otherwise allowed for in these Terms and Conditions. For the avoidance of doubt, interim invoices are payable on the terms set out under clause 5(a).
6. Drawings, etc.
(a) All specifications, drawings, and particulars of weights and dimensions submitted to us are approximate only and any deviation from any of these things does not vitiate any contract with us or form grounds for any claim against us.
(b) The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the goods and services or of the description applied to the goods and services.
(c) Our specifications, recommendations, pricing, drawings and other particulars are specific to the quantities set out in the quotation and are subject to change if the quantities are later adjusted.
7. Property & Risk
(a) Title to any Goods remains with us and does not attach to any real property until payment in full for the Goods has been made and credited to our bank account without reservation. We shall be entitled to enter upon your business premises or any premises of your Principals or as your agent upon any premises where you have a licence to enter to take possession of any of our Goods not paid for at any time after payment falls due.
(b) We reserve the right to attach to any Goods at any time plaques, labels, notice or stickers (the “Plaques”) indicating our continuing title to the Goods and you hereby covenant that you will not remove or permit to be removed any such Plaques until you have paid us for the Goods in accordance with Clause 5(a) hereof.
(c) Your dealings with the Goods prior to payment in full to us under subclause (a) above are to be conducted by you for us as in a fiduciary capacity and as our bailee of the Goods. Any proceeds of a purported sale of any of the Goods by you to a third party shall be held by you in a fiduciary capacity in a separate bank account on our behalf and the trust implied herein shall not determine until payment is made to us in full in accordance with Clause 5(a) hereof. You shall assign to us any claims against such third party in respect of the Goods.
(d) Risk to the Goods passes to you upon delivery and it shall be your responsibility to keep the Goods insured at your expense against loss or damage and to indemnify us in full for any such loss or damage that may occur to the Goods at any time prior to your payment in full for the Goods.
8. Personal Property Securities Act 2009 (Cth)
(a) In this Clause:
(i) Financing Statement has the meaning given to it by the PPSA;
(ii) Financing Change Statement has the meaning given to it by the PPSA;
(iii) Security Agreement means the Security Agreement under the PPSA created between you (the Customer) and us by
these Terms & Conditions; and
(iv) Security Interest has the meaning given to it by the PPSA.
(b) Upon assenting to these terms and conditions in writing, you acknowledge and agree that these Terms & Conditions:
(i) Constitute a Security Agreement for the purposes of the PPSA; and
(ii) Create a Security Interest in:
− All Goods previously supplied by us to you (if any);
− All Goods that will be supplied in the future by us to you.
(c) You undertake to:
(i) Promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up to date in all aspects) which we 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 or other registrable document referred to in this clause 8(c)(i).
(ii) Indemnify, and upon demand reimburse us 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.
(iii) Not register a Financing Change Statement in respect of a Security Interest without our prior consent.
(iv) Not register, or permit to be registered, a Financing Statement or a Financing Change Statement in relation to the Goods in favour of a third party without our prior written consent.
(v) Immediately advise us of any material change in your business practices of selling the Goods which would result in a change in the nature of proceeds derived from such assets.
(d) Both parties agree that Section 96 and Section 125 of the PPSA do not apply to the Security Agreement created by these Terms & Conditions.
(e) You hereby waive your rights to receive notices under Section 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
(f) You waive your rights as a guarantor and/or debtor under Sections 142 and 143 of the PPSA.
(g) Unless otherwise agreed to in writing by us, you waive your rights to receive a verification statement In accordance with Section 157 of the PPSA.
(h) You shall unconditionally ratify any actions taken by us under Clauses 8(c) to 8(e).
9. Warranties & Liabilities
(a) Goods supplied and services performed by us are done so based upon the instructions and information provided by you. You agree that you do not rely upon the skill and judgement of us in relation to the suitability of any of the goods for a particular purpose or application for which the goods are required by you and we are under no liability whatsoever if the goods are not suitable and fit for your Intended purpose.
(b) Where we give advice in the course of supplying the Goods to you or performing the Service for you we give all such advice in good faith and with due diligence but we shall not be held liable at law for any such advice.
(c) Processes performed or Goods supplied by any Subcontractor or Supplier shall only have the benefit of such warranty as we have from such Subcontractor or Supplier and then only to the extent that such warranty is honoured by such Subcontractor or Supplier.
(d) Except as provided in these conditions, all express and implied warranties under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. We shall not be liable to you or your servants or agents for any direct, indirect, incidental or consequential loss, injury or damages of any nature howsoever caused (whether based on tort contract or otherwise) including but not limited to loss of profits, loss of production, loss of sales opportunity or business representation, direct or indirect labour costs and overhead expenses and damage to Services or Goods or in consequence of any fault or defects in the same or property or any other claim whatsoever arising directly or indirectly or in any way attributable to the supply, layout, assembly, installation or operation of the Goods and Services or to the performance of or failure to perform this contract whether resulting from the negligence of us, our servants, agents or otherwise. The provisions of this clause shall not apply insofar as their applications are prevented by the Competition & Consumer Act 2010 or any other State or Territory laws.
(e) We make no representation or warranty that the services or goods conform with all or any legislation, by–laws or regulations including but not limited to the Occupational Health and Safety Act 1985 or Building Act 1993. You agree to make your own enquiries regarding these matters and you shall be liable and indemnify and keep indemnified us against all actions, proceedings, costs, charges, claims or demands arising directly or indirectly out of or in connection with any breach of this condition.
(f) Nothing in these conditions shall be read or implied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law including the Competition & Consumer Act 2010 and which by law cannot be excluded, restricted or modified.
(g) Where the Contract relates to the supply of Goods only the following additional terms and conditions apply:
(i) We take no responsibility for the construction or set up of the Goods.
(ii) We will not be liable for and you release us from any claims in respect of faulty or defective design or specification of any Goods as supplied by the Manufacturer of the Goods.
(h) We do not provide any warranty against defects whether express or implied. To the extent that any of these conditions purport to provide a warranty against defects (except as provided in Clause 9(i)) it shall be read down, if it cannot be so read down the provision (or where possible the offending word) shall be severed from this conditions without effecting the validity, legality or enforceability of the remaining provisions (or part of those provisions) of these conditions which shall continue in full force and effect.
(i) If the goods are not manufactured by us any warranty against defects of the manufacturer of those goods is accepted by you and is the warranty against defects given to us in respect of the goods. We agree to assign to you on request made by you the benefit of any warranty or entitlement to the goods that the manufacturer has granted to us under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
10. Consumer Guarantees
(a) Our liability for a breach of a guarantee under Div I of Part 3–2 of Schedule 2 of the Competition and Consumer Act 2010 (other than section 51, 52 or 53) for the supply of goods or services not of a kind ordinarily acquired for personal, domestic or household use or consumption is limited to:
(i) in the case of goods, any one or more of the following:
− the replacement of the goods or the supply of equivalent goods;
− the repair of the goods;
− the payment of the cost of replacing the goods or of acquiring equivalent goods;
− the payment of the cost of having the goods repaired; or
(ii) in the case of services:
− the supplying of the services again; or
− the payment of the cost of having the services supplied again.
(b) Our liability under s 274 of Schedule 2 of the Competition and Consumer Act 2010 for the supply of goods not of a kind ordinarily acquired for personal, domestic or household use or consumption is expressly limited to a liability to pay to the consumer an amount equal to:
(i) the cost of replacing the goods;
(ii) the cost of obtaining equivalent goods; or
(iii) the cost of having the goods repaired, whichever is the lowest amount.
(c) To the extent permissible by law, you indemnify us against any unauthorised express or implied warranty or representation under stature or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials, or workmanship or otherwise made by any agent, employee or representative of us to a third party. For the avoidance of doubt, a warranty or representation will be unauthorised unless the warranty or representation has previously been made by us or authorised by it.
Our failure to insist upon strict performance of any Term or Condition of this Contract shall not be deemed a waiver thereof or of any rights we may have and shall not, nor shall any express waiver be deemed to be acquiescence in any subsequent breach of any Term or Condition of this Contract.
A Term or Condition shall only be waivered if stated in writing and signed by us.
In the interpretation of these Terms and Conditions of business the headings are inserted for clarity of reference and do not define, limit or affect the interpretation hereof.
Any Term or Condition hereof which infringes any State or Federal legislation shall be severable from the Contract without affecting the remaining Terms and conditions.
Any raw materials goods, designs, plans, photographs, standing matter, or other chattels deposited by you with us for performance of the services or any other reason shall be at your risk.
15. Construction Works
Where the Contract relates to the provision of materials plus labour to carry out construction (the “Construction Works”), the following additional terms and conditions shall apply:
(a) You will at your own expense convey the goods and materials from the delivery point to a position within twenty metres of the place where construction is required.
(b) You will ensure the safe custody of and minimise deterioration to the materials and or equipment whilst on site and before use and will protect the same by providing covered and secured waterproof storage accommodation.
(c) You will immediately prior to the date for the commencement of construction works ensure that the site is cleared and free from obstruction and
that electricity services are available for use by us and you will further (unless we otherwise agree in writing) ensure that we are enabled to carry out the works of construction as one uninterrupted operation to be completed during normal working hours.
(d) The Contract Price is fixed on the basis that the floors upon which the constructional works are to be performed are level and even. Any additional costs or expenses for materials and/or labour required to shim the proposed installation due to an uneven or out of level floor surface in excess of plus or minus 10mm elevation variation over the entire floor area shall be paid by you unless otherwise agreed.
(e) We are not responsible for the strength or structural condition of the floors or foundations upon which the construction works are erected and make no representation and give no warranty that such floors or foundations are suitable for the construction works thereon and shall not be liable for any damage or injury directly or indirectly attributable to any defects in or any structural movement collapse subsidence or failure of the said floors or foundations.
(f) On completion of the work any surplus goods delivered by us shall remain the property of and be removed from the site by us. Until such removal you shall take reasonable precautions for the safe custody and protection of such surplus goods.
(g) If for any reason the commencement of the construction works extends beyond two (2) weeks from the stipulated date we shall be entitled to receive from you an interim payment or payments on account of the Contract price and may render an interim invoice or invoices accordingly.
(h) Unless expressly provided for in the contract we will not undertake or be responsible for any builder’s work or other work involving alterations to the structure of any premises at which work is to be undertaken by us.
(i) You will serve all notices and make applications for and obtain all such licences, consents and approvals as are required by any third party including the Landlord (if any) and under any Building Regulations or By–laws or any legislation for the time being in force prior to the carrying out of any construction works herein and you shall be liable and indemnify and keep indemnified us against all actions, proceedings, costs, charges, claims or demands arising directly or indirectly out of or in connection with any breach of this condition.
(j) The Contract is only between you and us. No interference to the performance of this Contract by a third party, e.g. union, will be tolerated by either party.
16. Guarantee and Indemnity
(a) In consideration of us having agreed to supply the customer with the goods and services at the request of the person making the order on behalf of
the customer (“the authorised person”) the authorised person agrees to be responsible to us to pay the price of the goods and services supplied.
(b) The authorised person acknowledges the guarantee is a continuing guarantee and the liability of the authorised person shall not be affected by us giving time or any other indulgence to the customer.
(c) The authorised person agrees to indemnify us in respect to all costs, charges and expenses whatsoever which we may incur by reason of any default on the part of the customer.
(d) The authorised person charges any Real Estate property they have interest in, in favour of us in relation to all products supplied and all costs charges and expenses incurred by reason of default by you. The authorised person acknowledges that we may lodge a Caveat on the title to any Real Estate property they have an interest in.
(e) As a condition of accepting your custom, we may require that all principals of your company, trust or partnership also each sign a personal guarantee and indemnity on the same terms as are required for the authorised person at clauses 16(a) through 16(d). All guarantors (including the authorised
person) shall be jointly and severally liable for performance of all the terms, covenants and conditions of our agreements.
17. Intellectual Property
(a) The copyright and all other intellectual property in the goods, including labelling and packaging, vested in us shall remain vested in us, and shall only be used by you at our discretion.
(b) Where we have designed, specified, or created product design drawings for you, then the copyright in those designs and drawings shall remain vested in you, and shall only be used by you at our discretion.
(c) Where you have supplied drawings, you shall indemnify us for the specifications and design of the Goods (including the copyright, design right or other intellectual property in them). Where any designs or specifications have been supplied by you for manufacture by or to the order of the us then you warrant that the use of those designs or specifications for the manufacture, processing, assembly or supply of Goods and Services shall not infringe the rights of any third party.
18. Privacy Act 1988
(a) You agree for us to obtain from a credit reporting body credit eligibility information, credit information, credit reporting information, and/or credit worthiness of you.
(i) provision of Services and Goods;
(ii) marketing of services and/or Goods by us, its agents or distributors in relation to the Services and Goods;
(iii) analysing, verifying and/or checking the your credit, payment and/or status in relation to provision of Services/Goods;
(iv) processing any payment instructions, direct debit facilities and/or credit facilities requested by you; and
(v) enabling the daily operation of your account and/or collection of amounts outstanding in your account in relation to the Services and Goods.
(c) We may provide information about you to a credit reporting body for the following purposes:
(i) to obtain credit eligibility information, credit information, credit reporting information, and/or credit worthiness of you; and/or
(ii) allow the credit reporting body to create or maintain a credit information file containing information about you.
19. Confidentiality and secrecy obligation.
(a) You are obliged to observe the utmost confidentiality as regards all technical and commercial information received from us in execution of this agreement.
(b) In relation to such information, even after the execution of this agreement, you are obliged to:
(i) keep it with the utmost diligence and confidentiality and return it to us when requested to do so;
(ii) refrain from reproducing, copying, transmitting or revealing it to third parties, unless within the limits explicitly authorised in writing by us;
(iii) refrain from applying for patents;
(iv) refrain from producing or having third parties produce, or providing third parties with, for any reason, directly or indirectly, products using the above technical information;
(v) to impose and guarantee observance of the obligations deriving from this clause on any subject cooperating with you, in any form and in any case, and therefore also, partners, employees, professionals, consultants, sub–suppliers and in any case, whoever may directly or indirectly become privy to the information passed on by us to you.
(c) In the event of violation of the confidentiality and secrecy obligation set out in this Clause, you shall be obliged to pay us, as a penalty, the amount equal to 30% of the Goods purchased in a calendar year as a pre–estimate of the damages.
(d) This shall, naturally, not affect our right to obtain compensation for any further damage suffered.
(a) You represent and warrant to us that all Information and representations that you, or any person acting on your behalf has given In connection with transactions are true and correct and that you have not failed to disclose to us anything relevant to our decision to have dealings with you and that no court proceedings or dispute is current that may have an adverse effect on performing your obligations under this agreement.
(b) When a dispute arises between us you agree to comply with our dispute resolution process. To this end, a party with a complaint against the other is first required to notify the other of the dispute by giving written notice specifying the nature of the dispute, the outcome required and the action believed necessary under the circumstances that will assist both in settling the dispute. Each party will then in good faith attempt to resolve the dispute by negotiation. Undisputed amounts are to be paid forthwith.
(c) We will not reasonably be held responsible for act of GOD or by any Act or omission by a third party which we cannot reasonably be held responsible for including but not limited to storm, tempest, cyclone, flood, water damage, earthquake, tsunami, act of war or terrorism, electrical black out or cyber act of whatsoever nature.
(d) We reserve the right to cancel or suspend your Order in the event that it would not in our reasonable opinion be safe and/or lawful to continue or where you are otherwise in breach of these Terms and Conditions.
(e) Where an Order is suspended or cancelled by us, you will still be liable to pay for all services rendered and all goods delivered up to and including the date of suspension/cancellation.
Last updated April 2021