“ACL “means the Australian Consumer Law Schedule of the Competition and Consumer Act:
“EU” means Everton Upholstery Services Pty Ltd.
“AGREEMENT “means any agreement for the provision of goods to the customer;
“CONSUMER” is as defined in the ACL and in determining if the customer is a consumer under the agreement.
“CUSTOMER” means the person jointly and severally if more than one, acquiring goods from Adelaide Upholstery and Sewing.
“GOODS” as defined in the ACL
“SUPPLY” means the provision of labour and or goods.
“PPSA” means the personal properties securities act 2009(CTH) and associated regulations as amended
“TIME” Whilst every effort is made to meet timescales, this will not be the essence of any supply.
“TERMS” means these terms and conditions of trade
“Structural” means parts of the furniture made from timber I.e the “frame”
“Service” means to carry out repairs and replacements as we see necessary. Whether under warranty or as a charged item.
“Wear and Tear” means damage or minor damage cause by day to day use.
BASIS OF AGREEMENT
Unless otherwise agreed in writing, the terms apply exclusively to every agreement and cannot be varied or replaced by any other terms, including the customers terms and conditions of purchase (if any).
Any quotation provided to the customer for the proposed supply of goods and services is valid for 30 days and only valid if in writing.
The terms may include additional terms in our quotation which are not inconsistent with the terms
An agreement is only accepted when Everton Upholstery receives the customer’s acceptance of the quotation. Everton Upholstery has absolute discretion to refuse any offer.
No purported cancellation or suspension of an order or any part of it by the customer is binding on Everton Upholstery once the order has been accepted.
Cancellations will not be accepted if we have cut the fabric or dispatched the order. Or if the goods or fragment of have been especially imported to meet the order.
Any item purchased at a discounted rate for clearance will not attract the usual terms of our usual agreement. We will not entertain claims in relation to clearance goods.
Unless agreed otherwise, the customer will collect the goods:
(a) The customer must collect the goods within 3 days of being advised they are ready.
(b) If the customer does not collect the goods within this time, the customer is deemed to have taken delivery of the goods and the balance becomes any due.
(c) Where goods are to be delivered and or collected by EU, or its contractors, the customer must at all times;
- a) Move any items that may be obstructing said collection or delivery.
b) Any goods or belongings damaged due to failure of adequate clearance is the sole responsibility of the customer.
c) The customer must advise AUS of any collection or delivery not at ground level and or where stairs are involved, prior to contract.
d) Goods will only be delivered to same address as collection unless agreed beforehand.
e) Ground floor collection and delivery only, other options must be quoted for prior, to avoid disappointment.
The goods are not supplied for sale by sample or by the provision of samples by the supplier. We cannot guarantee that the goods will match the sample due to dyelot variation.
Everton Upholstery not liable in any way howsoever arising under the agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accidents, breakdown, import or export restrictions, acts of god, acts or threats of terrorism or war. If such an event occurs, we may suspend or terminate the agreement.
Except as the terms specifically state, or as contained in any express warranty provided in relation to the goods, the agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description ,assembly, manufacture, design or performance of the goods or any contractual remedy for their failure.
If the customer:
(a) Is a consumer, nothing in these terms constricts, limits, and modifies the customer’s rights or remedies against Everton Upholstery for failure of a statutory guarantee under the ACL.
(b) On-supplies the goods to the customer, subject to sub clause (c):
(i) If the goods are of a kind not ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A (1) is the limit of liability to the customer.
(ii) Otherwise payment of any amount required under section 274 of the ACL is the absolute limit of liability to the customer;
(c) Howsoever arising under or in connection, sale, use, storage or dealings with the customer or third party;
Uses up or transforms the goods in the course of trade and when the customer supplies its own goods to a consumer the goods are no longer goods as defined in the ACL then EU will not be liable to the customer or consumer in anyway arising under or in connection with the sale, use, storage or any other dealings with the goods by the customer or third party.
If sub clauses (a) (b) or (c) do not apply, then other than as stated in the terms and conditions or any written warranty statement we will not be liable to the customer or consumer in any way arising under or in connection with the sale, use, installation, storage or any other dealings with the goods by the customer or third party.
EU is not liable for any indirect or consequential losses or expenses incurred by the customer or third party, howsoever caused, including but not limited to, loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL
The customer acknowledges that it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by EU in relation to the goods or their use or application.
Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any state or federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
PASSING OF PROPERTY
Until EU receives full payment in cleared funds for all goods supplied by it to the customer, as well as all other amounts owing to EU by the customer :
(a) Title and goods remain vested in EU and do not pass to the customer;
(b) The customer must hold the goods as fiduciary Bailee and agent for EU.
(c) Customer must keep the goods separate from its goods and maintain EU labelling and packaging (if any)
(d) The customer must hold the proceeds of sale of the goods on trust for EU in a separate account in bank to which the customer has not given security. However, failure to do so will not affect the customers obligation as trustee
(e) In addition to its rights under the PPSA, EU may without notice enter any premises where it suspects the goods are and remove them. Notwithstanding that they may have been attached to other goods not the property of EU and for this purpose the customer irrevocably licences EU to enter such premises and also indemnifies EU from and against all costs, claims, demands or actions by any action arising from any party arising from such action.
Unless otherwise agreed in writing:
(a) Customers with credit accounts must make full payment for the goods within 30 days of the date of EU‘s invoice.
Customers without a credit account must make full payment for the goods prior to the releasing of the goods; and
EU reserves the right to require payment of a deposit to be determined as a percentage of the total purchase price
Payment terms may be revoked or amended at EU’S sole discretion upon giving the customer written notice.
The time for payment is of the essence.
If the customer defaults in payment by the due date of any amount payable to EU, then all money which would become payable by the customer to AUS at a later date on any account, becomes immediately due and payable without the requirement of any notice to the customer, and EU may, without prejudice to any of its other accrued or contingent right;
(a) Charge the customer interest on any sum due at the prevailing rate pursuant to the penalty interest rates act 1983 (Vic) plus 4% for the period from the due date until payment in full.
(b) Charge the customer for, and the customer must indemnify EU from, all costs (including, without limitation all legal costs and expenses) incurred from its resulting from the default or in taking action to enforce compliance with the agreement to recover any goods.
(c) Cease or suspend the supply of any further goods to the customer.
(d) By written notice to the customer, terminate any uncompleted contract with the customer.
Clauses (c) and (d) may also be relied upon, at EU option:
(a) The customer is a natural person and becomes bankrupt or enters into any scheme or arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors general; or
(b) Where the customer is a corporation and, it enters into any scheme or arrangement or any assignment or composition with or for the benefit with its creditors generally, or has a liquidator, administrator or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional) winding up or dissolution without winding up of the customer.
(c) The customers and Directors, Partners or proprietor referred to in the sole proprietor or partnership account application or company account hereby charge all their right, title and interest in the property or properties listed as Private Addresses of the Partners or Proprietors or Directors in the account application and also any property or properties they own currently or may acquire in the future solely or jointly or have or become to have a beneficial interest in, in favour of EU with the due and punctual observance and performance of all the obligations of the customer. The customer indemnifies AUS against all expenses and legal cost (on a solicitor/own client basis) for preparing/lodging and removing any caveat.
The Customer and the Directors, Partners or Proprietor referred to in the account application hereby acknowledge that EU may at its discretion register and lodge a caveat(s) on such property or properties in respect of the interests conferred on it under this clause. Such registration of a caveat by EU over the customers or an individual’s property or properties must not be challenged by the customer or individual in any way whatsoever, and the customer aggress to not take any steps in filing a lapsing notice via the land titles office to have the caveat removed, until such time that the customer has paid all monies owing by it to EU as claimed from time to time.
PERFORMANCE OF AGREEMENT
Any period or date for supply of goods as stated by EU is an estimate only and not a contractual commitment.
EU will use its reasonable endeavours to meet any estimated dates for supply of the goods but will not be liable for any loss or damage suffered by the customer or any third party for the failure to meet any estimated date.
PERSONAL PROPERTY SECURTIES ACT
Notwithstanding anything to the contrary contained in these terms,
The PPSA applies to these terms:
For the purposes of the PPSA;
(a) terms used in this clause have the same meaning as in the PPSA;
(b) these terms are a security agreement and EU has a Purchase Money Security interest in all present and future goods
(c) the security interest is a continuing interest, irrespective of whether there are monies or obligations owing by the customer at any particular time; and
(d) The customer must do whatever necessary to give a valid security interest over the goods and their proceeds.
(e) The security interest arising under this clause attaches to the goods when the goods are collected or dispatched from EU’s premises and not at any later time.
Where permitted by the PPSA, the customer waives the rights to notifications, verifications, disclosures or other documentation specified under sections 95, 121(4), 130, 132(3) (d), 132(4), 135 and 157 of the PPSA
To the extent that is permitted by the PPSA, the customer agrees to;
(a) The provisions of chapter 4 of the PPSA which are for the benefit of the customer or which place obligations on EU will only apply to the extent that they are mandatory or AUS agrees to their application in writing; and
(b) Where EU has rights in addition to those in chapter 4 of the PPSA, those rights will continue to apply.
The customer must immediately upon EU’s request;
(a) Do all things and execute all documents necessary to give effect to the security interest in this agreement;
(b) Procure from any person considered to be relevant to its security position such agreements and waivers (including as equivalent to those above) as EU may at any time require.
EU may allocate amounts received from the customer in any manner EU determines. Including in any manner required to preserve any purchase money security interest it has in goods supplied by EU.
For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these terms and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party shall disclose any information pertaining to the terms nor the sale of the goods, except as otherwise required by law or that is already in the public domain.
Prices quoted for the supply of goods are exclusive of GST and any other taxes or duties imposed in relation to the goods unless otherwise stated.
If the customer requests any variation to the agreement, EU may increase the price to account for the variation.
Where there is any change in the costs incurred by EU in relation to the goods, EU may vary its price to take account of any such change by notifying the customer.
EU reserves the right to change its prices.
RISK AND INSURANCE
The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the customer immediately on the goods being released to the customer or taken from EU premises by the customer.
The customer assumes all risk and liability for loss, damage or injury to persons or to property of the customer or third parties arising out of the use, installation of any of the goods sold by EU, unless recoverable from EU on the failure of any statutory guarantee under the ACL.
The customer must inspect the goods when made available for collection. This remains the responsibility of the customer even if the goods are delivered or collected by a third party by agreement.
EU will not be liable for any shortages, damage or noncompliance with the specifications in the service agreement unless:
(a)The customer notifies EU with a full description and details within 5 days of collection.
The goods have not been used
The customer upon request returns the goods or makes the goods available for inspection.
Otherwise the customer is deemed to have accepted the goods.
When any claim for goods, damaged or non- compliance, EU may at its option, remedy, replace or refund the goods.
(1) The customer, by agreement may leave goods or items or future works with EU. In such cases the customer does so at their own risk and absolves EU of any liability. Should any incident or act occur to said items or goods or part thereof.
(2) Balance of payment is expected on completion and prior to delivery or collection.
(3) When work is completed EU expects the customer to collect the goods immediately or as is reasonable to expect thereafter. If the customer fails or is unable to do all or part of the above EU will not be liable for any damage, loss or theft to property.
(4) EU reserves the right to charge 10% + gst of total cost, per week in addition to a wrapping fee of $65.00 for items or goods not collected or accepted for delivery within 72 hrs of completion when notified by email and or telephone. Any arrangement contrary to this must be agreed in writing.
(5) It is the sole responsibility of the customer to ensure that their property is adequately insured at all times. Whilst every care is taken by EU we will not accept liability for damages or loss in any circumstance.
(6) EU reserves the right to alter and vary these terms at any time. Written notification prior to any new contracts or work will be provided.
(7) EU reserves the right to alter or vary these terms at any time. In such cases, new terms will be supplied in writing prior to any new contract or works.
(8) Where goods are to be delivered and or collected by EU, the customer must at all times;
- f) Move any items that may be obstructing said collection or delivery.
g) Any goods or belongings damaged due to failure of adequate clearance is the sole responsibility of the customer.
h) The customer must advise EU of any collection or delivery not at ground level and or where stairs are involved, prior to contract.
i) Goods will only be delivered to same address as collection unless agreed beforehand.
It is only valid while at the same address where originally delivered.
The fabric shall carry the Exact guarantee as given by its supplier. Please ask if unsure.
The foam shall carry the exact guarantee offered by its supplier.
The mechanical or moving parts shall carry the Exact guarantee as given by its supplier. Please ask if unsure