Terms and conditions
In these Terms unless the context requires otherwise:
Contract means the contract formed as a result of the acceptance of an Order by Kustom Timber. It includes these terms and the Quote.
Confidential Information is information that:
- by its nature is confidential;
- is designated by the parties as confidential; or
- the parties know or ought to know is confidential;
and includes all information about the Kustom Timber and its related bodies corporate, including but not limited to, all technical, financial, commercial and other information in any form (for example: as a document or in electronic form) of or relating to them or their business affairs, which is made available or which becomes known during the terms of this Contract but does not include information that was in the public domain at the time of its disclosure.
Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence or otherwise).
Customer means the customer set out in the Quote, offer or other document provided by Kustom Timber (in the absence of such information, the customer who placed the Order).
Goods means any flooring products or other goods supplied by Kustom Timber to the Customer.
Invoice means a tax invoice issued by Kustom Timber to the Customer specifying the Price and any ancillary costs payable by the Customer to Kustom Timber for the Goods and Services.
Insolvency Event means any of the following analogous events:
- the Customer, being an individual, commits and act of bankruptcy;
- a party becomes insolvent;
- a party disposes of whole or any part of its assets, operations or business other than in the ordinary course of business;
- the Customer is unable to pay Kustom Timber’s debts as the debts fall due;
- any step is taken by a mortgagee to take possession of or dispose of the whole or any part of a party’s assets, operations or business; or
- any steps is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or party of any party’s assets, operations or business.
Intellectual Property is all of Kustom Timber’s and its Related Bodies Corporate’s present and future patent and patent applications; rights to inventions; copyright and related rights; trademarks; service marks; trade names; domain names and URLs; rights in good will or to sue for passing off; rights in designs; registered designs; rights in computer software; database rights; rights in Confidential Information (including know-how and trade secrets); and any other intellectual property rights. These rights may be registered or unregistered.
Kustom Timber means Kustom Timber Pty Limited ABN 16225496)
Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees).
Order means any written or verbal order by the Customer to Kustom Timber for the Goods and/or Services.
Price means the price payable in respect of the Gods and/or Services, as specified in any Quote, or Invoice issued by Kustom Timber.
Product Warranty means the Product Warranty as set out on Kustom Timber’s website.
Related Bodies Corporate means related bodies corporate as defined by the Corporations Act 2001 (Cth).
Quote means the Quote from Kustom Timber to the Customer for the purchase of the Goods and Services.
Services means the services to be provided by Kustom Timber to the Customer as described in the Quote.
Terms means these Terms and Conditions of sale.
- These Terms apply to the sale of Goods and Services from Kustom Timber to the Customer to the exclusion of all other terms and conditions of Kustom Timber.
- Kustom Timber will not supply Goods and Services on any other terms or conditions than those set out herein.
- Acceptance of Terms and placement of orders
- The Customer is deemed to have agreed to these Terms by:
- signing and returning a copy of these Terms;
- accepting the Quote verbally or in writing; or
- providing instructions to Kustom Timber in relation to the provision of the Goods and Services.
- If the Customer accepts an Order as specified in clause 1, the parties will have created a binding Contract and Kustom Timber will supply the Goods and/or Services to the Customer, and the Customer will pay the Price to Kustom Timber as specified on the Invoice in accordance with the terms of the Contract.
- The Customer must pay to Kustom Timber any costs associated with the Customer purporting to cancel the Contract, including any costs for Goods ordered but not yet delivered, and/or Services provided, to be calculated on a pro-rata basis..
- The Customer must provide Kustom Timber with any details of any required specifications or properties of the Goods and/or Services at the time the Customer provides an Order to Kustom Timber.
- The Customer must ensure that the specifications or properties of Goods and/or Services stated in any Order by the Customer will be fit for the intended purpose of the Goods and/or Services.
- Kustom Timber will be entitled to rely on the accuracy of any plans, specifications or other information provided by the Customer.
- If there are any errors in any plans, specifications or other information provided by the Customer to Kustom Timber, Kustom Timber will be entitled to vary the Price.
- Kustom Timber may cancel any Contract at any time prior to the delivery of the Goods and/or Services with no liability other than to repay any amount of the Price paid by the Customer in advance of the cancellation.
- Price and Payment Terms
- The Customer must pay the Price in the manner and on the due date set out in the Invoice.
- If the Customer fails to make payment of any amount of the Price on the due date, Kustom Timber may suspend its Services and the Customer must pay to Kustom Timber interest on the full amount outstanding at the rate equal to 4% higher than the penalty interest rate fixed by the Attorney-General of Victoria pursuant to s2(1) of the Penalty Interest Rate Act 1983 (Vic), calculated monthly for the period from the due date until payment is received.
- The Customer must reimburse Kustom Timber for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery or other expense associated with any action by Kustom Timber to recover money from the Customer.
- The Customer agrees that it must pay to Kustom Timber on demand any expenses, fees and disbursements incurred by Kustom Timber in recovering any amount owing to it by the Customer, including any reasonable debt collection agency fees and legal expenses and any costs incurred by Kustom Timber in respect of any Order cancelled by the Customer.
- The Customer may not withhold, make deductions from, or set-off payment of any of the Price due to Kustom Timber for any reason.
- Kustom Timber may charge, in addition to the Price, any fees and charges that Kustom Timber notifies to the Customer from time to time.
- Variations to the Goods and Services
- If the Customer causes a delay in the performance of the Services or the supply of the Goods, without providing Kustom Timber with reasonable written notice in advance, Kustom Timber may add to the Price any additional costs incurred by Kustom Timber for the supply of the Goods and Services.
- If the Client wishes to make changes to the Order for Goods or the Services, it must notify Kustom Timber in writing of those changes, and if those changes result in additional work or time required by Kustom Timber in the provision of the Goods and/or Services, Kustom Timber may vary the Price to include any additional costs incurred by Kustom Timber as a result of those changes.
- Delivery and Force Majeure
- Unless otherwise agreed, Kustom Timber will deliver the Goods to the Customer’s address as specified in the Quote. The Customer must make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Kustom Timber is not responsible for any damage to the Goods during delivery.
- Kustom Timber will not be liable for any delay in delivering the Goods and/or Services.
- Unless specified otherwise in the Quote or the Invoice, delivery and freight charges are not included in the Price, and are payable by the Customer at the same time as the Price is due to be paid.
- If for any reason beyond the control of Kustom Timber without limitation an order cannot be filled at the time required by the Customer or at all, Kustom Timber is not required to supply the Goods and Services to the extent and for the period that it is so unable to supply the Goods and Services, and Kustom Timber is not liable to the Customer in respect of any inability or delay on its part to perform its obligations.
Kustom Timber will not be liable to the Customer or any other person for any Liability or Claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any other remote abnormal or unforeseeable loss whether or not in the reasonable contemplation of the parties.
- The Customer must promptly notify Kustom Timber in writing of any defects or faults in the Goods or defective workmanship in carrying out the Services within seven (7) days of delivery of the Goods and performance of Services.
- The Customer must, as soon as practicable after notifying Kustom Timber in writing of the defects or faults in the Goods, return the Goods to Kustom Timber, unless it has been agreed between the parties in writing that the necessary replacement or repair shall be carried out by Kustom Timber on the Customer’s premises or the premises where the Goods have been installed.
- The Goods are made of a natural product, and as such variations of the colour and grain may occur. Kustom Timber does not guarantee that the Goods ordered will be identical. Kustom Timber takes no responsibility for any variations in the Goods provided, and will not accept any defects or faults on account of the natural variation in the Goods.
- Nothing in this clause 8 shall absolve the Customer’s payment obligations under clause 4.
The Customer agrees to indemnify Kustom Timber against any Liability arising from the Customer’s breach of the Contract or from its use of the Goods including, without limitation, any damages resulting from negligence, mistake, omission or failure of performance, whether or not resulting from any act of Kustom Timber or its agents.
- Confidential Information and Intellectual Property
- The Customer must not at any time, or for any reason, whether during the term of this Contract or after its termination disclose to any person, or use for their own or another person’s benefit any Confidential Information.
- The Customer acknowledges and agrees that:
- the Intellectual Property remains the property of Kustom Timber; and
- this Contract does not confer on the Customer any proprietary right or title to any of the Intellectual Property.
- Kustom Timber and the Customer may immediately terminate, or suspend the performance of, any Contract if:
- the other party breaches a term of the Contract (including these Terms) and does not remedy the breach within 7 days;
- the other party breaches a term of the Contract (including these Terms) which is not capable of remedy;
- there is any direct or indirect change in the Control of either party; and
- if an Insolvency Event occurs.
- If the Contract is terminated for any reason:
- the Customer must immediately pay to Kustom Timber a pro-rata payment for the Goods provided and Services performed by Kustom Timber up to the date of termination, and any other money owed by the Customer to Kustom Timber under this Contract as at the date of termination; and
- termination does not affect any accrued rights or liabilities of the parties.
Kustom Timber may sub-contract all or any part of its rights and obligations under the Contract without the Customer’s consent.
The Sale Agreement between Kustom Timber and the Customer is made in the State of Victoria, and the parties agree to submit all disputes arising between them to the courts of such State.
- Entire Agreement
- Kustom Timber and the Customer acknowledge that these Terms constitute the entire agreement between them, and that the only enforceable obligations and liabilities of Kustom Timber and the Customer in relation to the subject matter of these Terms is contained herein.
- All representations, communications and prior agreements are superseded by these Terms.
Kustom Timber may change these Terms at any time if it has given to the Customer at least 30 days’ notice in writing of the proposed change.
The Customer must immediately provide written notice to the Customer if there is any direct or indirect change in the Control of the Customer.
- Product Warranty
The Customer is bound by the Product Warranty (a copy of which is available upon request or is available on Kustom Timber’s website).
|Signed by the Customer