Blue Chip Group Pty Ltd (ABN 98 162 282 064), Cementex Pty Ltd (ABN 65 602 487 847) and Rightwood Pty Ltd (ABN 67 602 487 856) (severally “BCG”)
These Terms and Conditions apply to all contracts and dealings between each BCG entity (“severally”) and the Customer in relation to the provision of credit and the supply of panel, timber, fibre cement and composite facade, cladding and decking, as well as related products such as steel, plastic, framing, fixings, insulation, textiles. Herein referred to as (“Goods”).
1. Information Warranty. The Customer hereby warrants that the information set out in the First Schedule hereto is true, accurate and correct and is supplied for the purpose of obtaining credit.
2. Use of Information. The Customer consents to the provision of the information about the Customer contained in the First Schedule to credit reporting agencies. The Customer authorises BCG to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and its Directors and to use a credit report containing information about the Customer’s commercial activities or commercial creditworthiness to assess this credit application. The Customer authorises BCG to provide, receive and exchange information about the Customer’s creditworthiness, credit standing, credit history and credit capacity to and with other parties. This information may be used to:
(i) assess the Customer’s credit application,
(ii) assist BCG in avoiding default on the Customer’s credit obligations,
(iii) notify other credit providers of a default by the Customer and
(iv) assess the Customer’s creditworthiness.
3. Quotations. All BCG quotations for Goods are open for acceptance for a period of 30 days from the date stated on the quotation unless specified otherwise. Quoted prices are subject to BCG notification of price change for any significant fluctuation in the input prices and exchange rates relating to the items of Goods.
4. Mistake. BCG reserves the right to correct mistakes in any quotation by giving written notice to the Customer. The Customer is deemed to accept the corrected Quotation unless it gives written notice to BCG within two days.
5. GST. All prices and amounts payable by the Customer are exclusive of GST, and the Customer must pay GST in respect of all amounts payable to BCG upon receipt of a valid tax invoice.
6. Advice. The Customer is solely responsible to determine the suitability of Goods for a particular purpose or application. The Customer releases BCG from any liability in respect of any claim in respect of any BCG advice or representations about the Goods and proposed uses and suitability for specific purposes that is not set out in writing.
7. Goods. BCG may update, modify and make minor alterations to components of Goods supplied, provided the Goods are not materially different from the Goods ordered. The Customer must only use the Goods in accordance with applicable laws, regulations and standards and in accordance with all installation guidelines and manuals and proper commercial practice. The Customer acknowledges the unique properties and limitations of the Goods including:
(i) Panel Goods. The Customer acknowledges that laminated, veneered, moulded, extruded, fabricated, plywood, and decorated products may not be manufactured or processed by BCG and accepts all risks associated with any delamination or failure;
(ii) Timber & Composites. The Customer acknowledges that BCG timber and composite Goods are in part or in whole a natural product and variation in colour, texture and inherent quality occur; are susceptible to bending, warping, splitting, cracking, crushing, swelling, delamination, deterioration, fungal growth, insect attack etc., if not stored or used properly are susceptible to changes in quality, structural strength, appearance, finish and/or colour due to mistreatment, poor storage, poor handling, inadequate, uninformed and/or inappropriate preparation, treatments, installation or use and by exposure to the elements, chemicals, sunlight and foreign materials; may contain or be treated with poisons and/or potentially toxic chemicals (Formaldehyde, preservatives, adhesives etc) and should be stored and worked upon in well ventilated areas with proper exhaust systems and personal protective equipment as required by relevant Occupation, Health and Safety directives and should not be burned.
8. Availability of Goods: Where Goods ordered by a Customer are unavailable, BCG will place goods on back order and will deliver Goods to the Customer when the back order has been fulfilled.
9. Delivery. Proposed delivery dates are estimates only, and BCG will not be liable where Delivery is delayed beyond a proposed delivery date. Delivery is deemed to occur when BCG notifies the Customer when Goods are ready for collection from BCG’s premises. The Customer will pay reasonable holding and storage costs charged by BCG for Goods not promptly collected by the Customer. BCG is not responsible for delivery of Goods, but may elect to arrange delivery at the request of the Customer. The Customer bears all risk of loss, damage or theft of Goods where the Customer has nominated delivery to an unattended or unsecured Site and a certificate of delivery produced by BCG is conclusive proof of such delivery.
10. Delivery Site. The Customer is responsible to make the delivery site ready for delivery of the Goods and must provide all unloading equipment necessary for delivery to the Customer’s delivery site. The Customer will be liable for any costs of delay or postponed delivery that arise as a result of the Customer’s failure to be ready for delivery in accordance with this clause.
11. Freight. Freight costs are not included in the prices quoted for Goods unless specified. The Customer is required to pay the full cost of transport, delivery and/ or collection and return of the Goods to BCG’s premises, including the costs of any unsuccessful delivery for any reason.
12. Packing. The Customer will return all pallets and any reusable packaging provided with the goods and indemnifies BCG for the full replacement cost thereof, if not returned to BCG promptly and in good order.
13. Payment. All supplies of Goods to Customers are on a cash sale or cash hire basis unless credit terms have been agreed to in writing, which will be on the following terms:
(i) All accounts are to be settled in full within 30 days of the end of the month of the date of the invoice.
(ii) Upon a default in payment, then all monies due to BCG shall immediately become due and payable and shall be paid by the Customer within seven (7) days of the date of demand. Interest will accrue daily from the due date calculated at a rate of 2% per month.
(iii) BCG may apply any payment received from a Customer to all amounts owed by the Customer and in any order of priority.
(iv) BCG is entitled to set off or deduct any amount payable by BCG to the Customer against outstanding amounts due and owing to BCG.
(v) Any expenses, costs or disbursements incurred by BCG in recovering any outstanding monies including debt collection agency fees and solicitor’s costs shall be paid by the Customer on an indemnity basis.
(vi) BCG can at any time require additional security from the Customer as considered reasonably necessary and can withhold supply of Goods until the Customer has granted BCG acceptable security.
14. Title and Risk. Risk in relation to the Goods passes to the Customer upon removal from BCG’s premises. Title to Goods does not pass to the Customer until full payment for the purchased Goods has cleared in the account of BCG. BCG retains title to the purchased Goods and to any proceeds from disposal of the purchased Goods (to the extent traceable) for as long as there is any amount outstanding in relation to the purchased Goods. Goods in the Customer’s possession not yet paid for must be clearly identifiable as the property of BCG.
15. Claims. Any claim for non-delivery, shortage in supply or damage occurring during the course of delivery or any claim for rejects by a Customer must be in writing and given to BCG within 48 hours of delivery.
16. Return of Goods. The Customer may not return any custom-made or specially produced or ordered Goods. All returns of unused Goods are subject to approval by BCG at its absolute discretion. Goods returned must be of merchantable quality, complete and in original packaging and not shop soiled or otherwise altered. All credits for Goods that has been approved for return will be less a restocking fee of 20% and less any administrative and freight charges incurred by BCG.
17. Repossession. Upon default in payment by the Customer, BCG may retake possession of Goods. All costs of such repossession of Goods by BCG will be payable by the Customer. Such rights shall be without prejudice to BCG’s right to claim damages from the Customer for breach of contract or any other right that accrues to BCG.
18. Site Access. The Customer gives its unconditional consent for BCG and its servants and agents, to enter the Customer’s premises (or any other site where the Goods are located) at any time for the purpose of removing, examining and where necessary, repossessing the Goods. The Customer agrees to do all things necessary to ensure BCG has access to its premises pursuant to this clause.
19. Force Majeure. BCG will not be liable for any failure or delay of supply of Goods that is caused or contributed to by an event that is reasonably beyond the control of BCG including acts of God, supply delays, national emergency, war, riots, civil unrest, natural disasters. BCG will notify the Customer of any event under this clause and may elect to terminate the Order and refund the Customer the price for non-supplied Goods if BCG considers that the event will prevent performance of a Customer’s order for Goods.
20. Default. Where the Customer is in default of its obligations under these Terms, BCG may immediately suspend or cease supply of Goods in its complete discretion until such time as the Customer has rectified its breach to the satisfaction of BCG. The Customer will be liable for all losses incurred by BCG as a result of a default including all consequential losses and loss of profits.
21. Liability. BCG excludes all liability to the Customer in relation to Goods except to the extent covered by a Warranty Certificate. BCG’s liability will never exceed the price of the Goods supplied. BCG will not be liable for any consequential loss or damages, including (but not limited to) loss of profit, business revenue, goodwill, anticipated savings or damage to property.
22. Indemnity. The Customer indemnifies BCG against any loss or expense suffered by BCG that arises from a Customer breach of these terms or that arises as a result of faulty or inappropriate use of Goods by the Customer. The Customer indemnifies BCG against any claims made by a third party in respect of negligence, personal injury or death arising in relation to the Goods.
23. Warranty. BCG excludes all warranties in relation to the Goods except for those provided in a Warranty Certificate provided to the Customer by BCG in relation to the Goods.
24. No Exclusion. These Terms do not exclude any provisions required by Law to be included and any inconsistent provisions shall be severed from these Terms without affecting the enforceability of the remaining provisions.
25. Notice. Any notice to be given in writing to BCG must be sent by post or by facsimile to the business address of BCG. Any notice to the Customer may be given by personal service, by post to the Customer’s address or registered office or by facsimile.
26. Trust. In the case of a Customer that is a trust, the trustee of the Customer enters this Agreement in its personal capacity as well as in its capacity as trustee. The trustee warrants that the trust is lawfully operating and that the assets of the trust shall be available to meet payment of the account.
27. Change of Ownership. The Customer shall no later than 14 days prior to any proposed change of ownership of the Customer or a parent entity notify BCG of the proposed change. BCG may require additional security or require a new credit application from the Customer where there has been a change of ownership.
28. Security for Payment. The Customer grants BCG the following security interests as collateral for its performance of its payment obligations for Goods under the credit facility granted under this Agreement:
(i) The Customer hereby charges all presently owned and future acquired real property of the Customer and the Customer agrees immediately upon being required by BCG to enter into a mortgage to be prepared by BCG’s solicitors on the terms and conditions as BCG’s solicitor shall think fit to secure any sum due hereunder and the Customer further agrees and permits and authorises the supplier to register an absolute caveat over any land now owned by the Customer or in the future acquired by the Customer to secure any sum due hereunder at any time from the Customer to BCG;
(ii) The Customer hereby charges all present and after-acquired personal property as security which includes all proceeds of the sale or divestment of any present or after-acquired Goods or personal property and the security interest granted pursuant to this clause extends to all rights in relation to accounts of the Customer’s debtors; and
(iii) The Customer will do all such things and provide all such documents as reasonably directed by BCG to enable BCG to obtain the full benefit of the securities granted in these provisions.
29. Director Guarantee. Where the Customer is a corporation, each of the directors jointly and severally guarantees the payment by the Customer of all outstanding amounts in relation to Goods sold or hired by BCG.
(i) Entire Agreement: These Terms, together with the quotation constitute the entire agreement between the parties with respect to the subject matter.
(ii) Capacity of BCG: Each BCG entity is a separate business. Any reference to a right or obligation of BCG in these Terms confers that right and imposes that obligation on each BCG entity in a several capacity only. Where the Customer is provided Goods by one BCG entity, it will have no claim against any of the other BCG entities, and hereby releases those BCG entities from any claim for any such liability. In no circumstances will these Terms be read to impose joint obligations on any BCG entities.
(iii) Waiver: Any waiver of any provision of these Terms or consent to any departure from a provision of this Agreement by any of the parties shall only be effective in the specific instance and for the purpose for which it was given, even if the terms of any waiver are not so limited. No default or delay on the part of either party in exercising any rights, powers or privileges shall operate as a waiver of them or of any other right nor shall a single or partial exercise or exercise of any other rights, power or privilege.
(iv) Inconsistency with other Documents: If these Terms are inconsistent with any other document or agreement between the parties, these Terms prevails to the extent of the inconsistency.
(v) Enforceability: Any provision of, or the application of any provision of, these Terms which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition. Any provision of, or the application of any provision of, these Terms which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
(vi) PPSA: The Customer consent to the Owner perfecting any security interest which arises by the operation of the Personal Property Securities Act 2009 (PPSA), and agrees to do anything reasonably required by the Owner to enable it to do so. The Owner contracts out of each provision of the PPSA that it is permitted to contract out of under s115(1) of the PPSA. The Customer waives its rights to receive all notices under the PPSA that are permitted to be waived under s157(3) of the PPSA. At the request of BCG, the Customer will procure and register a security interest under the PPSA against the Customer’s clients in respect of any Goods sold to that client that is subject to a retention of title by BCG.
(vii) Jurisdiction: The laws of the State of Western Australia apply to these Terms and all contracts between BCG and the Customer, and unless varied by mutual consent all contracts shall be subject to the jurisdiction of any of the Courts of Western Australia.
(viii) Severance: The parties agree that the provisions of these Terms are reasonable in all the circumstances and that each provision is, and will be deemed, to be severable and independent. Further, if all or any part of any provision is judged invalid or unenforceable the removal of that provision or part will not affect the validity or enforceability of the remaining provisions.
(ix) Amendment: These Terms can only be amended or replaced by another document executed by the Parties.