TERMS AND CONDITIONS
These General Terms and Conditions of Sale, Delivery and Payment govern the relationship between You and Us in connection with the Goods and, except as otherwise agreed in writing, will prevail over any other agreement or arrangement You have with Us. Placing an order with Us will constitute deemed acceptance by You of these Terms and Conditions.
1. General, Offer and Purchase Order
1.1 Our deliveries and other services are made exclusively on the basis of these General Terms and Conditions of Sale, Delivery and Payment (“Terms and Conditions“) and the “Important Information“ printed on the respective price lists. These Terms and Conditions also apply to all future transactions with us, even if this is not expressly agreed again.
1.2 Unless We agree otherwise in writing, these Terms and Conditions will prevail over any terms issued by You, even if you send Your own terms and conditions to Us.
1.3 Offers and purchase orders shall not be binding on Us until we have issued our written order confirmation. A change or cancellation of the contract is only possible with our consent, any additional expenses will be charged. In the event of cancellation, up to 100% of the order value may be incurred, depending on the material and production status.
1.4 Oral agreements or agreements made on the telephone shall only become components of the contract if they are confirmed by Us in writing.
2. Prices
2.1 Quoted or agreed Prices are in AUSTRALIAN DOLLARS (“AUS$“) including packaging, but excluding any costs of transportation, GST, or other taxes, levies or charges ex our warehouse.
2.2 Unless a price has been expressly agreed, the respective price list applicable at the time the contract is entered into shall be the decisive basis for calculating the price. This also applies to follow-up orders. References by You to earlier orders (“as usual“) refer to the model numbers only.
2.3 We reserve the right to alter Our prices even if, after order confirmation, cost reductions or cost increases result, particularly owing to collective agreements, exchange rate fluctuations, material and energy cost adjustments or changes in cost of transportation, providing the delivery does not take place within two months of order confirmation. On request You shall be provided with proof of any cost increases.
3. Delivery
3.1 Unless otherwise agreed in writing, all deliveries shall be FCA from our nominated warehouse (INCOTERMS 2020).
3.2 The delivery item shall be determined by the order confirmation. Slight deviations from the sample on show or information contained in the brochure which are customary in the trade in terms of dimensions, finish and colour can arise from the type of products which we manufacture. They do not give You a right to assert claims for defects. In particular, we are unable to guarantee identical colours in the case of materials, leathers, veneers and lacquer work. This also applies to follow-up orders.
3.3 Delivery times are estimates only and We do not guarantee a particular delivery date or time.
3.4 We may deliver goods by instalment, but if We fail to deliver a particular instalment by a date estimated or specified for delivery, You are not entitled to rescind the contract.
3.5 We will make Goods available to you at the location nominated by Us (“Our Warehouse”). At your expense, You may cause the goods to be transported from Our Warehouse. All carriers from Our Warehouse will be Your agents only.
3.6 A claim for shortages in delivery must be in writing received by Us within 14 days of dispatch from Our Warehouse.
3.7 If You do not collect the goods in due time, we may warehouse the Goods at Your cost and risk until collection, and may invoice You for storage.
This shall not affect our right to performance of Our other rights. We shall only take out insurance at the express request and at your cost. In the event that the Goods are stored at Our Warehouse, we reserve the right to claim a fixed price of AUS$2.00 per m³ of storage for each day of storage.
4. Risk in the Goods
Risk in the Goods passes from Us to You on delivery, and subject to clause 3.7 the Goods are deemed delivered to You when placed on the transport vehicle at Our Warehouse.
5. Terms of Payment
5.1 You must pay Us the price of the Goods on the date that the Goods are available for delivery unless We have approved extended terms of payment.
5.2 If We agree to provide Goods on credit terms, You acknowledge and agree that if You breach the credit terms, you will pay Us any Collection Expenses and interest charges that may apply.
5.3 You must pay for Goods available for delivery whether or not they fill an entire order.
5.4 If payment is overdue, We may charge You interest at Our banker‘s business overdraft interest rate from the date of default until We receive payment. Further, in the case of default, We may enter Your premises and retake possession of the Goods con cerned and (subject to the enforcement provisions of the PPSA) then credit You Our estimated re-sale value of those Goods less Our costs. You will indemnify Us in relation to any costs incurred by Us in the exercise of such rights.
5.5 In addition, if payment is overdue We may cancel or suspend delivery of other Goods yet to be delivered to You.
5.6 You may not deduct from the price any set off, counter claim or other sum unless We agree in writing.
5.7 We only accept cheques and bills of exchange by prior arrangement; and acceptance shall be as conditional payment. You shall bear any costs associated with acceptance.
6. Retention of Title
6.1 Property (equitable and legal ownership) of the Goods remains with Us and will not pass to You until payment to Us of all accounts owing by You,
even if risk in the Goods has passed. This is a security interest which may be registered and maintained by Us under the PPSA, at Your cost.
6.2 The security interest includes all proceeds from any dealings with the Goods in accordance with the PPSA (“Proceeds“). You hereby charge the Proceeds with the payment of the purchase price and any default or collection expenses and interest due to Us.
6.3 We may enter onto any property owned, used or controlled by You (using reasonable force if necessary, and without being liable for trespass, negligence or damages) for the purpose of repossession of the Goods should You default in your obligations to Us under this Agreement.
6.4 If Goods supplied by Us to You are on-sold or become constituent or component parts of other Goods, then a proportion of the Proceeds (equal to the amount owing to Us at the time of receipt of such proceeds) will, for the purpose of satisfying any outstanding debt owing to Us by You, be held in trust by You for Us.
6.5 You may only sell the Goods subject to retention of title in the ordinary course of business. In that event You hereby assign to us as security all claims and rights which accrue to You from the sale and We hereby accept this assignment.
6.6 Asserting retention of title and re-possessing Goods shall not constitute rescission of this Agreement if we do not expressly declare rescission or
termination.
7 PPSA
7.1 You agree that for the purpose of the PPSA, We have a security interest in relation to any Goods supplied pursuant to this Agreement and the proceeds (“Proceeds”) from any dealings with the Goods by You (“Security Interest”).
7.2 You agree that the Security Interest:
7.2.1 where possible, will enable but not oblige Us to register a Purchase Money Security Interest (“PMSI”); and
7.2.2 in any other case, will enable but not oblige Us to register the Security Interest on the PPS register in accordance with the provisions of the PPSA.
7.3 You undertake to:
7.3.1 do anything required by Us so that We:
7.3.1.1 acquire and maintain one or more perfected security interests under the PPSA in respect of the Goods and the Proceeds;
7.3.1.2 can register a financing statement or financing change statement.
7.3.2 not register a financing change statement in respect of the Security Interest without Our prior written consent; and
7.3.3 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 Our prior written consent.
7.4 You consent to Us affecting and maintaining a registration on the PPSR (in any manner We consider appropriate) in relation to the Security Interest.
7.5 Upon Our request, You will execute any documents required by Us and do anything else required by Us to ensure that any security interest created and maintained under this Agreement constitutes a first ranking perfected security interest over the Goods and the Proceeds.
7.6 You are to hold the Proceeds as trustee for Us and We do not authorise You to deal with those Proceeds in any way until You have paid all actual or contingent debts owed to Us.
7.7 We may at any time register a financing statement or financing change statement in respect of the Security Interest (including any PMSI). You will provide Us with any information We reasonably require to register a financing statement or financing change statement.
7.8 You waive the right to receive notice of a verification statement in relation to any registration on the register of a security interest in respect of the Goods.
7.9 You will immediately notify Us in writing of any change in your name or any other information We may need in order to complete a financing change statement.
7.10 You agree to reimburse Us for all expenses incurred or payable by Us in registering, maintaining or releasing any financing statement or any other document in respect of any Security Interest under this Agreement.
8 Warranties
8.1 Subject to clauses 8.2, 8.3 and 8.4, We warrant that the Goods delivered to You will comply with any description for the Goods contained in Your order (if any), but We give no warranty or guarantee as to the suitability, performance or fitness of the Goods for their use or purpose.
8.2 Because of the nature of the Goods, all sizes, weights and other measurements of the Goods are only approximate unless We have specifically agreed in writing that, notwithstanding this term, We will meet more stringent measurement requirements.
8.3 Our warranties for Goods will not apply if, after delivery, the Goods have been damaged, altered, repaired or treated (whether negligently or not) by any other person or if the Goods are not used in conformity with normal use, or modifications are made other than by Our authorised representative or without Our written consent.
8.4 Materials sent to Us by You will be processed without checking for suitability. We accept no liability for the formation of wrinkles or errors in the weave or other defects, which result from the materials sent to us. If unsuitable material is supplied to Us, then no warranty claims can be made and You shall bear any additional costs we incur, in particular for Goods returned, or difficulty in processing, etc.
9 Limitation of Liability and Indemnity
9.1 If the Goods are defective then We will do what is legally required of Us to correct or remedy the defect(s), but We shall not (subject to any applicable law to the contrary) be liable:
9.1.1 for any Loss arising from delay in delivery; or
9.1.2 for any Consequential Loss arising out of or related to the supply or use of the Goods.
9.2 Our liability for defects in the Goods will (subject to any applicable law to the contrary) be limited to one or more of the following (at Our election):
9.2.1 replacement of the Goods or supply of equivalent Goods;
9.2.2 repair of the Goods;
9.2.3 payment of the cost of replacing the Goods or acquiring equivalent Goods;
9.2.4 payment of the cost of having the Goods repaired.
9.3 Where We elect to replace the Goods We will credit the cost of the Goods being replaced and will replace them as soon as possible with other Goods of the same or equivalent kind at the price charged for the original Goods, and otherwise upon the same terms and conditions as those to which the original Goods were subject.
9.4 To the maximum extent permitted by law, You hereby indemnify and forever hold Us harmless from all Losses caused or contributed to by any negligent and/or wilful act or omission or any breach of these Terms and Conditions by You, or by Us arising from supplying or performing the Goods in accordance with these Terms and Conditions.
9.5 Unless You indicate otherwise to us by written notice or email, You hereby acknowledge that the Goods You will acquire from Us will be obtained for either the purpose of re-supply or for the purpose of using them up or transforming them in trade or commerce in the course of a process of production or manufacture.
10 Force Majeure
10.1 We shall not be liable for any failure to perform under these Terms and Conditions due to strikes, whether legal or illegal, lock-outs, fires, epidemics, bad weather, floods, water damage, riots, governmental acts or orders, interruption of transportation or utilities service, delays in delivery of materials to Us or any other causes beyond our reasonable control.
10.2 We shall keep You informed about such circumstances.
11 GST
11.1 A party who is the recipient of a taxable supply made under this Agreement must pay the amount of the GST on the taxable supply in addition to any other amount (excluding GST) that is payable for that taxable supply at the same time and in the same manner as it is required to pay the amount due for the taxable supply.
11.2 A party making a taxable supply to another party must issue a tax invoice to the recipient in accordance with the GST Law, setting out the amount of GST payable by the recipient at, or prior to, the time the recipient is required to pay the amount due for the taxable supply, unless the recipient is able to issue a recipient created tax invoice.
12 Severability
If any part of these terms and conditions becomes void or unenforceable for any reason then that part may be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
13 Governing Law
These terms and conditions are governed by the laws of South Australia and each party submits to the nonexclusive jurisdiction of the courts of that State.
14 Entire Agreement
This Agreement comprises the entire agreement between the parties. No additional terms and conditions (including any terms contained in a purchase or der if applicable) apply to the sale of the Goods unless agreed in writing by Us.
15 No Waiver of Rights
No delay or omission by a party to exercise any right, power or remedy available to that party as a result of a continuing breach or default under this Agreement will impair any such right, power or remedy, nor will it be construed to be a waiver of that party’s rights to take action or make a claim in respect of a continuing breach or default.
16 No Implied Terms
You may have the benefit of certain statutory guarantees relating to the Goods pursuant to the Australian Consumer Law. To the maximum extent permitted by law, all terms, conditions or warranties that would be implied into these Terms and Conditions or in connection with the supply of the Goods by law, statute, custom or international convention (including those elating to quality or fitness for purpose) are excluded.
17 Insurances
You must take out and maintain those policies of insurance for the Goods which would be held by a reasonably prudent customer in Your position.
18 Definitions
18.1 “Australian Consumer Law” means Schedules 1 and 2 of the Competition and Consumer Act 2010 (Cth) and any other relevant provisions contained in that Act, as varied from time to time by act or regulations;
18.2 “Consequential Loss” includes (but is not limited to) loss of revenue, loss of profits, loss of anticipated savings or business, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity or expectation loss and any form of consequential, special, indirect, punitive or exemplary loss or damages, however it arises (including as a result of negligence);
18.3 “Collection Expenses” means all legal and/or other expenses incurred by Us, including debt collection agency expenses, in obtaining or attempting to obtain payment of amounts due by You to Us;
18.4 “Goods” means any goods supplied or to be supplied by Us to You as described on an Order Confirmation Form issued by Us;
18.5 “Loss” means any liability, however it arises (including as a result of negligence) and includes any loss, claim, damage, demand, injury or death and a fine or penalty imposed by a statutory or other authority;
18.6 “Order Confirmation Form” means the document pro vided by Us to You confirming Your order of Goods, prices and terms of payment for the Goods and the approximate delivery date;
18.7 “PPSA” means the Personal Property Securities Act 2009 (Cth) (as amended) and any other legislation and regulations dealing with the PPSA. The following words in clause 7 have the meanings given to them in the PPSA: financing change statement, financing statement, purchase money security interest (PMSI), register, registration, security interest and verification statement. For the purposes of section 20(2) of the PPSA, the collateral is the Goods;
18.8 “We/Us/Our” means Walter Knoll Australia LP; and 18.9 “You/Your” means the person, partnership, corporation, trust or other entity to whom We are supplying the Goods, as named in a purchase order and/or order confirmation. Reference to “You” includes any of Your employees, agents and contractors.