Nothing in these Conditions excludes, restricts, modifies or limits the application of the Australian Consumer Law to the extent it applies to any transaction arising under these Conditions
1. Definitions
Quotation means a quotation in relation to the sale of Goods provided by Ausdeck to the Customer.
Ausdeck means Australian Lifestyle Construction Group Pty Ltd t/as Ausdeck Building Systems (Ausdeck) and the related entities listed below:
Trading name |
Trading entity name |
ABN |
Ausdeck Building Systems | Australian Lifestyle Construction Group Pty Ltd (Ausdeck) | 19 646 114 187 |
Ausdeck Patios & Roofing (QLD) | Ausdeck Outdoor Living Spaces Pty Ltd | 83 646 119 388 |
Ausdeck Patios & Roofing (NSW) | Ausdeck (NSW) Manufacturing Pty Ltd | 52 102 247 012 |
Ausdeck Roll Forming | RFI Industries Pty Ltd | 64 646 117 624 |
Ausdeck Sheetmetal | Bent Sheetmetal Manufacturing Pty Ltd | 98 124 939 519 |
Ausdeck EPS Foam | Fusion EPS Manufacturing Pty Ltd | 96 609 001 041 |
Business Day means Monday to Friday (inclusive) excluding public holidays at the place of delivery.
Contract means a contract between Ausdeck and the Customer for the supply of Goods, as constituted by Ausdeck’s quotation, an Order and these General Terms & Conditions of Sale.
Contract Sum means the total price provided in the Quotation plus any variations and any additional costs, including delivery that Ausdeck is entitled to under the contract.
Customer means the party referred to in the Quotation.
Delivery Date means date stated in the Order or any Quotation for delivery of the Goods to the Site.
Goods means goods, products, materials, plant, equipment, vehicles and machinery, together with any and related services supplied by Ausdeck under the Contract.
Order means a written order, or an order placed via the Dealer Portal from the Customer requesting the supply of Goods.
PPSA means the Personal Property Securities Act 2009 (Cth)
Site means the site or location for the supply of Goods stated in the Order or Quotation.
Working Hours means between 7.00am and 5.00pm on any Business Day at the place of delivery.
2. Quotation
2.1 The Quotation shall remain valid for a period of 30 days from the date of that quotation unless otherwise specified in writing.
2.2 The Quotation does not form an offer of obligation to supply Goods by Ausdeck and may be withdrawn, varied or extended by Ausdeck in writing at any time prior to the Customer accepting the Quotation in accordance with 3.1.
3. Placement of Order
3.1 A Contract between Ausdeck and the Customer is formed when Ausdeck accepts an Order from the Customer. Ausdeck may accept or reject any Order in its absolute discretion (in whole or part).
3.2 These General Terms & Conditions of Sale shall prevail against any other conditions whatsoever, notwithstanding any conflicting terms contained in the Customer’s Order.
4. Payment and GST
4.1 The Customer will pay the Contract Sum provided for in the Quotation plus any adjustments and all applicable GST and any imposed statutory or other charges whatsoever.
4.2 Unless agreed in writing by the parties, the Customer may not cancel an Order (or any part of an Order) once accepted by Ausdeck.
4.3 All payments required to be made by the Customer to Ausdeck under the Contract will be made free of any set-off or counterclaim without deduction or withholding.
4.4 Where the Customer has an approved commercial credit account with Ausdeck, the Contract Sum is due and payable on the last working day of the month after the month in which the Goods were delivered or such other date/s nominated on the Quotation (“Due Date”). Where the Customer does not have an approved commercial credit account with Ausdeck, the Due Date shall be the day that the Customer places an Order.
4.5 If the Customer fails to pay the Contract Sum (plus GST) or any other sum payable under this Contract on or before the Due Date then Ausdeck may stop or suspend the further manufacture and/or supply of the Goods.
5. Variations
Any variation to a Contract must be agreed between the parties in writing prior to the amended Goods being supplied, including any changes to the Contract Sum to reflect the amended Goods.
6. Delivery & Packaging
6.1 Ausdeck will supply the Goods to the Site in accordance with the Delivery Date. Any Delivery Date provided by Ausdeck is an estimate only. Ausdeck will not be liable for any loss or damage suffered by the Customer or any third party for failure by Ausdeck to meet the estimated Delivery Date for the Goods.
6.2 The customer will pay for all costs associated with the delivery of the Goods to Site, unless otherwise agreed in writing.
6.3 Delivery costs will be as agreed in writing, or if not agree in writing, as set out in the Quotation or if there is not Quotation and no written agreement, as set out in the relevant price list.
6.4 The Customer must ensure that it can take delivery of the Goods at the Site at the time the delivery is scheduled. Unless otherwise agreed, delivery will take place during Working Hours.
6.5 Delivery is deemed to occur where the Goods are delivered by Ausdeck or its carrier to the Site, or the Goods are collected from Ausdeck by the Customer, or any third party on behalf of the Customer, or when the Customer’s nominated carrier takes possession of the Goods.
6.6 Where the Customer has engaged Ausdeck to deliver the Goods, the Customer agrees that:
(a) It must ensure that Site access is available for delivery which is suitable and safe for heavy vehicles, with a portable crane;
(b) Unless otherwise agreed in writing, Ausdeck’s delivery will be made from the kerbside, meaning Goods will be placed inside or as close to the Site property boundary as possible;
(c) It must notify Ausdeck and submit a Site Accessibility Form at time of Order, where:
i. the Customer has requested a delivery placement which is not accessible from the kerbside; or
ii. there are any special site requirements with respect to delivery (including unusual site access requirements, irregular terrain and on-site safety requirements and regulations);
(d) If Ausdeck’s delivery driver or contractor is not satisfied that access to the delivery Ssite is safe, Ausdeck may unload the Goods at the kerbside close to the Site and Ausdeck’s proof of delivery shall be deemed acceptance of the delivery;
(e) Additional costs may apply where Ausdeck’s delivery vehicles are held on Site for more than one hour; and
(f) Ausdeck may charge a storage fee and/or a re-delivery charge in the event that the Customer does not or is unable to accept delivery of the Goods to Site at the time agreed or scheduled.
7. Defective Goods
7.1 The Customer must inspect the Goods promptly after delivery and must notify Ausdeck in writing within 10 Business Days of delivery of the Goods to Site, provide notice of any claim that the Goods (in whole or part) are not in accordance with the Contract, including relevant details and supporting photographs.
7.2 If a notice is given under clause 7.1, Ausdeck will inspect the Goods the subject of the notice and assess the cause of the alleged defect. Ausdeck will by notice in writing to the Customer: (a) remove the Goods, rectify the non-compliance and return the Goods to the Customer; or (b) remove and replace the Goods; or (c) do nothing.
8. Risk and Retention of Title
8.1 Risk of damage to, or loss of, the Goods passes to the Customer upon delivery or collection of the Goods.
8.2 Notwithstanding that risk may pass to the Customer, title in the Goods does not pass to the Customer until all of the Contract Sum and all other money payable by the Customer to Ausdeck has been paid in full and until such time the Customer will hold the Goods as a bailee of Ausdeck and a fiduciary relationship will exist between Ausdeck and the Customer.
9. PPSA
9.1 If Ausdeck determines that this Contract (or a transaction in connection with it) is or contains a security interest for the purposes of the PPSA, acting reasonably, the Customer agrees to do anything (including containing consents, completing, signing and producing documents and supplying information) which Ausdeck asks for and considers necessary for: a) ensuring that the security interest is enforceable, perfected and otherwise effective; and b) enabling Ausdeck to apply for any registration, complete any financing statement or give any notification in connection with the security interest; and c) enabling Ausdeck to exercise rights in connection with the security interest.
9.2 Ausdeck is not required to give any notice under the PPSA (including notice of verification statement) unless the notice is required by the PPSA to be given and cannot be waived. Customer must not: a) create any security interest or lien over any of Ausdeck Personal Property whatsoever (other than security interests granted in favour of Ausdeck); b) sell, lease or dispose of any interest in the Ausdeck Personal Property; or c) give possession of the Ausdeck Personal Property to another person except where Ausdeck expressly authorises the Customer to do so.
9.3 Neither Customer nor Ausdeck will disclose information of the kind mentioned in section 275(1) of the PPSA. The Customer will not authorise and must ensure that no other party authorises the disclosure of such information. This clause does not prevent disclosure where such disclosure is required under section 275 of the PPSA because of the operation of section 275(7) of the PPSA.
10. Liquidated Damages
Notwithstanding that Ausdeck may fail to deliver the Goods to any delivery point, have available for collection or, perform any other obligation under this Contract by a specific date, Ausdeck is not liable to the Customer for any damages, whether liquidated or unliquidated, unless agreed otherwise in the Quotation.
11. Indemnity and Release
The Customer shall use the Goods at the risk of the Customer and releases and indemnifies Ausdeck from all actions, claims and liabilities in respect of damage to property or death of or injury to any person resulting directly or indirectly from the Goods or their use or the services provided by Ausdeck to the Customer. This indemnity is reduced to the extent that such actions, claims or liabilities arose due to the actions or omissions of Ausdeck under this Contract.
12. Liability of Ausdeck
12.1 Ausdeck’s liability under or in connection with this Contract is limited to, at Ausdeck’s discretion, the resupply of the Goods or payment of an amount equal to the value of the same.
12.2 Ausdeck will not be liable for any losses or damages suffered by the Customer as either a direct or indirect consequence of any regulatory non-compliance whatsoever resulting from any act or omission on the part of the Customer.
12.3 If the Customer is a Consumer as defined by the Australian Consumer Law contained in Schedules 1 and 2 of the Competition and Consumer Act 2010 (Cth) (ACL), Ausdeck’s Goods come with guarantees that cannot be excluded under the ACL. Notwithstanding clause 7, the Customer is entitled to: (a) a repair, replacement or refund; (b) cancellation of a service; or (c) compensation for any reduction in the value of the Goods.
12.4 If the Customer is a Consumer as defined by the ACL, the benefits given by clause 13.1 are in addition to other rights and remedies of a consumer under a law in relation to the goods and services to which the warranty relates.
13. Default by the Customer
If the customer defaults in any provision of the Contract or commits any act of insolvency or enters into a composition with its creditors, or goes into administration, receivership or liquidation, then Ausdeck shall be entitled to reclaim any of the Goods as remains the property of Ausdeck.
14. No Assignment, Sale or Transfer
The Customer must not, without the consent in writing of Ausdeck, assign its rights under the Contract or subcontract any part of the performance of the Contract, which consent shall not be unreasonably withheld by Ausdeck.
15. Warranty Design Fitness for Purpose
15.1 Ausdeck offers no warranty whatsoever that the Goods are fit for the Customer’s intended purpose.
15.2 Ausdeck will not be required to define or prescribe the fitness for purpose criteria for the Goods. This will always be the Customer’s responsibility.
15.3 Ausdeck warrants the Goods will be fit for the ordinary and usual purposes for which such Goods are normally used.
16. Confidential Information, Specifications and Drawings
16.1 The Customer will not disclose any documents disclosed by Ausdeck to the Customer without Ausdeck’s written consent and Ausdeck will not disclose any documents disclosed by the Customer to Ausdeck marked as ‘confidential’ to any third party without the Customer’s written consent.
16.2 Ausdeck retains all copyright and intellectual property rights whatsoever in all materials it uses or provides to the Customer relating to the performance of the Works.
16.3 If the Customer provides Ausdeck with any drawings or other material or documents, then the Customer warrants that it is entitled to use those documents and indemnifies and holds harmless Ausdeck from any claims that may be brought against Ausdeck about those documents.
17. Limitation of Liability and Consequential Loss
17.1 Notwithstanding anything to the contrary, Ausdeck’s total aggregate liability to the Customer under or in connection with the Contract shall not exceed the amount which is equal to the Contract Sum.
17.2 Ausdeck will not be liable to the Customer for any Consequential Loss arising out of or in connection with the Contract (whether for breach of contract, under an indemnity, for tort including negligence, for vicarious or strict liability, for breach of statutory duty or any other legal, equitable or statutory basis). In this clause, Consequential Loss means loss of opportunity, loss of revenue, loss of profit, loss of contracts with third parties, loss of production, increase in operating cost, loss of goodwill, loss arising from business interruption, or loss of production, or any other loss which is also consequential or indirect loss.
18. Jurisdiction
This Contract between Ausdeck and the Customer shall be subject to the laws of the State of Queensland, and the Customer agrees to submit to the nonexclusive jurisdiction of the Courts of Queensland and the Federal Court of Australia.
19. Disputes
Disputes or differences arising between the Customer and Ausdeck must be settled quickly and by negotiation. The preferred method of determination of unresolved disputes will be by amicable agreement at the senior management level of the Customer and Ausdeck. If the dispute is not resolved by negotiation within 28 days of the dispute first arising, the parties will attempt to resolve in good faith through the Alternative Disputes Resolution procedure (ADR), by referring the matter to mediation. Neither party may litigate until the procedure in this clause 20 has first been complied with.
Customer Service
Ausdeck Building Systems (Head Office)
56-72 Bandara Street, Richlands QLD 4077
Phone: 1300 287 332
Email: reception@ausdeck.com.au