1.1 “CFP” means Custom Flatpack Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Custom Flatpack Pty Ltd.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by CFP to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between CFP and the Client in accordance with clause 4 below.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with CFP’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and CFP.
Change in Control
3.1 The Client shall give CFP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by CFP as a result of the Client’s failure to comply with this clause.
Price and Payment
4.1 At CFP’s sole discretion the Price shall be either: (a) as indicated on any invoice provided by CFP to the Client; or (b) CFP’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 CFP reserves the right to change the Price if a variation to CFP’s quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties such as hard rock barriers below the surface or iron reinforcing rods in concrete or as a result of increases to CFP in the cost of materials and labour) will be charged for on the basis of CFP’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At CFP’s sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by CFP, which may be: (a) on delivery of the Goods; (b) before delivery of the Goods; (c) by way of instalments/progress payments in accordance with CFP’s payment schedule; (d) the date specified on any invoice or other form as being the date for payment; or (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by CFP; (f) where a credit card or direct debit authority is held by CFP on behalf of the Client, any outstanding progress payments, balances, or invoices may be debited without notice by CFP.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three percent (3%) of the Price), or by any other method as agreed to between the Client and CFP.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to CFP an amount equal to any GST CFP must pay for any supply by CFP under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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.
Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that: (a) the Client or the Client’s nominated carrier takes possession of the Goods at CFP’s address; or (b) CFP (or CFP’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.2 At CFP’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
5.3 CFP may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.4 Any time or date given by CFP to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and CFP will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, CFP is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by CFP is sufficient evidence of CFP’s rights to receive the insurance proceeds without the need for any person dealing with CFP to make further enquiries.
6.3 If the Client requests CFP to leave Goods outside CFP’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
6.4 Timber is a natural product and as such may exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations. Whilst CFP will make every effort to match sales samples to the finished Goods CFP accepts no liability whatsoever where such samples differ to the finished Goods supplied.
6.5 Timber is a hydroscopic material subject to expansion and contraction, therefore CFP will accept no responsibility for gaps that may appear during prolonged dry periods.
6.6 The Client acknowledges that Goods supplied may: (a) fade or change colour over time; and (b) expand, contract or distort as a result of exposure to heat, cold, weather; and (c) mark or stain if exposed to certain substances; and (d) be damaged or disfigured by impact or scratching.
6.7 The Client acknowledges and agrees that the presence of plant/tree root growth and/or blockages generally indicates damaged pipes. Accordingly the Client agrees that these pipes cannot be fixed by simply removing plant/tree root growth or cleaning the drain, therefore no warranty is provided against this situation arising again in the future and in respect of any work carried out in relation thereto.
6.8 Whilst all care is taken, CFP does not accept responsibility for damage to Client items that are being re-used, or where items are insitu. The Client accepts responsibility for the protection of all insitu fixtures, fittings, structures and elements.
7.1 The Client shall ensure that CFP has clear and free access to the work site at all times to enable them to undertake the works. CFP 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
8.1 Prior to CFP commencing any work the Client must advise CFP of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
8.2 Whilst CFP will take all care to avoid damage to any underground services the Client agrees to indemnify CFP in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1.
9.1 CFP and the Client agree that ownership of the Goods shall not pass until: (a) the Client has paid CFP all amounts owing to CFP; and (b) the Client has met all of its other obligations to CFP.
9.2 Receipt by CFP 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.
9.3 It is further agreed that: (a) until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Goods and must return the Goods to CFP on request. (b) the Client holds the benefit of the Client’s insurance of the Goods on trust for CFP and must pay to CFP the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. (c) the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for CFP and must pay or deliver the proceeds to CFP on demand. (d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of CFP and must sell, dispose of or return the resulting product to CFP as it so directs. (e) the Client irrevocably authorises CFP to enter any premises where CFP believes the Goods are kept and recover possession of the Goods. (f) CFP may recover possession of any Goods in transit whether or not delivery has occurred. (g) the Client 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 CFP. (h) CFP may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms andconditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by CFP to the Client.
10.3 The Client undertakes to: (a) 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 CFP may reasonably require to; (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; (ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 10.3 (a) (i) or 10.3 (a) (ii); (b) indemnify, and upon demand reimburse, CFP 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; (c) not register a financing change statement in respect of a security interest without the prior written consent of CFP; (d) 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 the prior written consent of CFP; (e) immediately advise CFP 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.
10.4 CFP and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by CFP, the
Client waives their right to receive a verification statement in
accordance with section 157 of the PPSA.
10.8 The Client must unconditionally ratify any actions taken by CFP under clauses 10.3 to 10.5.
10.9 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
11.1 In consideration of CFP agreeing to supply the Goods, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Client indemnifies CFP from and against all CFP’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising CFP’s rights under this clause.
11.3 The Client irrevocably appoints CFP and each director of CFP as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify CFP in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow CFP to inspect the Goods.
12.2 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
12.3 CFP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, CFP makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. CFP’s liability in respect of these warranties is limited to the fullest
extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, CFP’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If CFP is required to replace the Goods under this clause or the CCA, but is unable to do so, CFP may refund any money the Client has paid for the Goods.
12.7 If the Client is not a consumer within the meaning of the CCA, CFP’s liability for any defect or damage in the Goods is: (a) limited to the value of any express warranty or warranty card provided to the Client by CFP at CFP’s sole discretion; (b) limited to any warranty to which CFP is entitled, if CFP did not manufacture the Goods; (c) otherwise negated absolutely.
12.8 Subject to this clause 12, returns will only be accepted provided that: (a) the Client has complied with the provisions of clause 12.1; and (b) CFP has agreed that the Goods are defective; and (c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and (d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, CFP shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: (a) the Client failing to properly maintain or store any Goods; (b) the Client using the Goods for any purpose other than that for which they were designed; (c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) the Client failing to follow any instructions or guidelines provided by CFP; (e) fair wear and tear, any accident, or act of God.
12.10 Notwithstanding anything contained in this clause if CFP is required by a law to accept a return then CFP will only accept a return on the conditions imposed by that law.
13.1 Where CFP has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and
documents shall remain the property of CFP.
13.2 The Client warrants that all designs, specifications or instructions given to CFP will not cause CFP to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify CFP against any action taken by a third party against CFP in respect of any such infringement.
13.3 The Client agrees that CFP may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which CFP has created for the Client.
13.4 Where electronic files have been uploaded by the Client via this website, the Client rescinds ownership of said items to CFP.
Default and Consequences of Default
14.1 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 CFP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes CFP any money the Client shall indemnify CFP from and against all costs and disbursements incurred by CFP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, CFP’s collection agency costs, and bank dishonour fees).
14.3 Without prejudice to any other remedies CFP may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions CFP may suspend or terminate the supply of Goods to the Client. CFP will not be liable to the Client for any loss or damage the Client suffers because CFP has exercised its rights under this clause.
14.4 Without prejudice to CFP’s other remedies at law CFP shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to CFP shall, whether or not due for payment, become immediately payable if: (a) any money payable to CFP becomes overdue, or in CFP’s opinion the Client will be unable to make a payment when it falls due; (b) the Client 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 (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15.1 CFP 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 Client. On giving such notice CFP shall repay to the Client any money paid by the Client for the Goods. CFP shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by CFP as a direct result of the cancellation (including, but not limited to, any loss of profits).
15.3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
Privacy Act 1988
16.1 The Client agrees for CFP to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by CFP.
16.2 The Client agrees that CFP may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes: (a) to assess an application by the Client; and/or (b) to notify other credit providers of a default by the Client; and/or (c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or (d) to assess the creditworthiness of the Client. The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
16.3 The Client consents to CFP being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Client agrees that personal credit information provided may be used and retained by CFP for the following purposes (and for other purposes as shall be agreed between the Client and CFP or required by law from time to time): (a) the provision of Goods; and/or (b) the marketing of Goods by CFP, its agents or distributors; and/or (c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or (d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or (e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
16.5 CFP may give information about the Client to a credit reporting agency for the following purposes: (a) to obtain a consumer credit report about the Client; (b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16.6 The information given to the credit reporting agency may include: (a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number); (b) details concerning the Client’s application for credit or commercial credit and the amount requested; (c) advice that CFP is a current credit provider to the Client; (d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started; (e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed; (f) information that, in the opinion of CFP, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations); (g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once; (h) that credit provided to the Client by CFP has been paid or otherwise discharged.
Requirements Under the Building Act 2004 ACT
17.1 Where CFP undertakes any residential building work in Australian Capital Territory (ACT) the cost of which is twelve thousand dollars ($12K) or greater then the following clauses 17.2 & 17.3 shall also apply to this contract in compliance with Part 6 of the Building Act 2004 ACT.
17.2 CFP warrants the following: (a) that the residential building work has been or will be carried out in accordance with the Building Act 2004 ACT; (b) that the work has been or will be carried out in a proper and skilful way; and (i) in accordance with the approved plans; or (ii) if the work involves or involved handling asbestos or disturbing friable asbestos, in accordance with approved plans that comply with the provisions specified under the Building Act 2004 ACT in relation to the asbestos; (c) that good and proper materials for the work have been or will be used in carrying out the work; (d) if the work has not been completed, and the contract does not state a date by which, or a period within which, the work is to be completed, that the work will be carried out with reasonable promptness; (e) if the owner of the land where the work is being or is to be carried out is not CFP, and the owner expressly makes known to CFP, or an employee or agent of CFP, the particular purpose for which the work is required, or the result that the owner desires to be achieved by the work, so as to show that the owner is relying on CFP’s skill and judgment, that the work and any material used in carrying out the work is or will be reasonably fit for the purpose or of such a nature and quality that they might reasonably be expected to achieve the result.
17.3 Where CFP is not acting as a sub-contractor CFP shall take out a policy of residential building work insurance in compliance with Division 6.3 of the Building Act 2004 ACT.
Building and Construction Industry (Security of Payment) Act 2009
18.1 At CFP’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 (Security of Payment) Act 2009 mayapply.
18.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry (Security of Payment) Act 2009, except to the extent permitted by the Act where applicable.
19.1 The failure by CFP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect CFP’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.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which CFP has its principal place of business, and are subject to the jurisdiction of the courts in that state.
19.3 Subject to clause 12 CFP shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by CFP of these terms and conditions (alternatively CFP’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
19.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by CFP nor to withhold payment of any invoice because part of that invoice is in dispute.
19.5 CFP may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.6 The Client agrees that CFP may amend these terms and conditions at any time. If CFP makes a change to these terms and conditions, then that change will take effect from the date on which CFP notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for CFP to provide Goods to the Client.
19.7 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.
19.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
19.9 By making a deposit or authorising us to manufacture, order osr supply items to you,, you agree to the above Terms of Trade.