TERMS & CONDITIONS
1.1 ”Aaromat” means “Metallus Pty Ltd (ABN 90 631 677 999) trading as Aaromat Group (the supplier) , by its successors assigns or any person acting on behalf of: Aaromat Group, and with the authority.
1.2 “Customer” means the person/s buying the ‘Goods’ or ‘Services’ as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all ‘Goods’, ‘Materials’, ‘Services’ or ‘Labour’ supplied by Aaromat to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’, ‘Materials’, ‘Services’ or ‘Labour’ shall be interchangeable for each other).
1.4 “Price” means the Price payable for the ‘Goods’’ as agreed between Aaromat and the Customer in accordance with clause 4.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions when the Customer places an order for or accepts delivery of the Goods and Services.
2.2 These terms and conditions may only be amended with Aaromat consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Aaromat.
3. Change in Control
3.1 The Customer shall give Aaromat not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by Aaromat as a result of the Customer’s failure to comply with this clause.
4. Deposit Payment (1)
35% of the total sum of the estimate including GST is to be paid before commencement of job.
5. Progress Claim (2)
50% of the total sum of the estimate including GST is to be paid before delivery to site. Aaromat will notify the purchaser in advance that the product is ready for delivery and or installation to allow enough time for payment. Any holdup in progress payment by the purchaser may delay the delivery or installation.
6. Final Payment (3)
15% of the total sum of the estimate including GST is to be paid to the installer or to Aaromat account on the day of completion of installation.
7. Supply only final payment (3)
65% of the total sum of the estimate including GST is to be paid before delivery to site if the product is offered on a supply only basis.
8. Price and Payment
8.1 At Aaromat sole discretion the Price shall be either:
a) as indicated on any invoice provided by Aaromat to the Customer; or
b) the Price as at the date of delivery of the Goods according to Aaromat current price list; or
c) Aaromat quoted price (subject to clause 8.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
8.2 Aaromat reserves the right to change the Price if a variation to Aaromat quotation is requested. Payment for all variations must be made in full at their time of completion.
8.3 At Aaromat’ sole discretion a non-refundable deposit may be required.
8.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Aaromat, which may be:
a) on delivery of the Goods;
b) before delivery of the Goods;
c) the date specified on any invoice or other form as being the date for payment; or
d) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Customer by Aaromat.
e) thirty (30) days from end of month for account customers
8.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and Aaromat.
8.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Aaromat an amount equal to any GST Aaromat must pay for any supply by Aaromat under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.
9 Delivery of Goods
9.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
a) the Customer or the Customer’s nominated carrier takes possession of the Goods at Aaromat address; or
b) Aaromat (or Aaromat nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
9.2 At Aaromat’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
9.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
9.4 The Customer must take delivery by receipt or collection of the Goods whenever either is tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Aaromat shall be entitled to charge a reasonable fee for redelivery of the Goods and/or the storage of the Goods.
9.5 The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
a) such discrepancy in quantity shall not exceed five percent (5%); and
b) the Price shall be adjusted pro rata to the discrepancy.
9.6 Aaromat 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.
9.7 Any time or date given by Aaromat to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and Aaromat will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
10.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
10.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Aaromat is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Aaromat is sufficient evidence of Leslie’ rights to receive the insurance proceeds without the need for any person dealing with Aaromat to make further enquiries.
11.1 The Customer shall ensure that Aaromat has clear and free access to the work site at all times to enable Aaromat to undertake the works. Aaromat shall not be liable for any loss or damage to the site including without limitation, damage to walls, floors, pathways, driveways and concreted or paved or grassed areas.
12 Dimensions, Plans and Specifications
12.1 All customary industry tolerances shall apply to the dimensions and measurements of the Goods unless Aaromat and the Customer agree otherwise in writing. Aaromat shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer.
12.2 If the giving of an estimate or quotation for the supply of Goods involves Aaromat estimating measurements and quantities, it shall be the responsibility of the Customer to verify the accuracy of Aaromat estimated measurements and quantities, before the Customer places an order based on such estimate or accepts such quotation.
Should the Customer require any changes to Aaromat estimated measurements and quantities, the Customer shall request such changes in writing. In the case of an estimate, before placing an order and in the case of a quotation, before acceptance.
13 Customer’s Disclaimer
13.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by Aaromat and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
13.2 Where Aaromat provides advice to the Customer, such advice is given in good faith only. The Customer acknowledges that Aaromat shall not be liable for any claims howsoever arising out of any advice given.
It is the purchaser’s responsibility to clearly instruct our employees or subcontractors as to the correct location of the products to be installed. The purchaser is to bear the costs of any boundary survey required.
15 Retention of Title to Goods
15.1 Aaromat and the Customer agree that ownership of the Goods shall not pass until:
a) the Customer has paid Aaromat all amounts owing to Aaromat; and
b) the Customer has met all of its other obligations to Aaromat.
15.2 Receipt by Aaromat 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.
15.3 It is further agreed that:
a) until ownership of the Goods passes to the Customer in accordance with clause 15.1 that the Customer is only a bailee of the Goods and must return the Goods to Aaromat on request.
b) the Customer holds the benefit of the Customer’s insurance of the Goods, on trust for Aaromat, and must pay to Aaromat the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
c) the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Aaromat and must pay or deliver the proceeds to Aaromat on demand.
d) the Customer should not convert or process the Goods or intermix them with other Goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Aaromat and must sell, dispose of or return the resulting product to Aaromat as it so directs.
e) the Customer irrevocably authorises Aaromat to enter any premises where Aaromat believes the Goods are kept and recover possession of the Goods.
f) Aaromat may recover possession of any Goods in transit whether or not delivery has occurred.
g) the Customer 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 Aaromat.
h) Aaromat may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
16 Personal Property Securities Act 2009 (“PPSA”)
16.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
16.2 Upon assenting to these terms and conditions in writing or other act, the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and Personal Property that is owned by the Customer and has previously been supplied and that will be supplied in the future by Aaromat to the Customer.
16.3 The Customer 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 Aaromat 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 16.3(a)(i) or 16.3(a)(ii);
b) indemnify, and upon demand reimburse, Aaromat 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 Aaromat;
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 Aaromat;
e) immediately advise Aaromat of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
16.4 Aaromat and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
16.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3) (d) and 132(4) of the PPSA.
16.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
16.7 Unless otherwise agreed to in writing by Aaromat, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
16.8 The Customer must unconditionally ratify any actions taken by Aaromat under clauses 16.3 to 16.7.
16.9 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.
17. Security and Charge
17.1 In consideration of Aaromat agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, reality or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
17.2 The Customer indemnifies Aaromat from and against all Aaromat costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising Aaromat rights under this clause.
17.3 The Customer irrevocably appoints Aaromat and each director of Aaromat as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Customer’s behalf.
18. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
18.1 The Customer must inspect the Goods on delivery and must within thirty (30) days of delivery notify Aaromat in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote.
18.2 The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Aaromat to inspect the Goods.
18.3 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 (Non-Excluded Guarantees).
18.4 Aaromat acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
18.5 Except as expressly set out in these terms and conditions in respect of the Non-Excluded Guarantees, Aaromat makes no Warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Aaromat liability in respect of these warranties is limited to the fullest extent permitted by law.
18.6 If the Customer is a consumer within the meaning of the CCA, Aaromat liability is limited to the extent permitted by section 64A of Schedule 2.
18.7 If Aaromat is required to replace the Goods under this clause or the CCA, but is unable to do so, Aaromat may refund any money the Customer has paid for the Goods.
18.8 If the Customer is not a consumer within the meaning of the CCA, Aaromat’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 Customer by Aaromat at Aaromat’s sole discretion;
b) limited to any warranty to which Aaromat is entitled, if Aaromat did not manufacture the Goods;
c) otherwise negated absolutely.
18.9 Subject to clause 18, returns will only be accepted provided that:
a) the Customer has complied with the provisions of clause 18.1; and
b) Aaromat has agreed that the Goods are defective; and
c) the Goods are returned within a reasonable time at the Customer’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.
18.10 Notwithstanding clauses 18.1 to 18.8 but subject to the CCA, Aaromat 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 Customer failing to properly maintain or store any Goods;
b) the Customer using the Goods for any purpose other than that for which they were designed;
c) the Customer continuing the use of the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
d) the Customer failing to follow any instructions or guidelines provided by the Aaromat;
e) fair wear and tear, any accident, or act of God.
18.11 Aaromat may, in its absolute discretion, accept non-defective Goods for return in which case Aaromat may require the Customer to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any freight costs.
19. Consequences of Default
19.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of five percent (5%) per calendar month (and at Aaromat sole discretion such interest shall compound monthly at such a rate) after as well as before any judgement.
19.2 If the Customer owes Aaromat any money the Customer shall indemnify Aaromat from and against all costs and disbursements incurred by Aaromat in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, Aaromat contract default fee, and bank dishonour fees).
19.3 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
19.4 Without prejudice to any other remedies Aaromat may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions, Aaromat may suspend or terminate the supply of Goods to the Customer. Aaromat will not be liable to the Customer for any loss or damage the Customer suffers because Aaromat has exercised its rights under this clause.
19.5 Without prejudice to Aaromat other remedies at law, Aaromat shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Aaromat shall, whether or not due for payment, become immediately payable if:
a) any money payable to Aaromat becomes overdue, or in Aaromat;s opinion the Customer will be unable to make a payment when it falls due;
b) the Customer 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 Customer or any asset of the Customer.
20.1 Aaromat may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are due to be delivered by giving written notice to the Customer. On giving such notice Aaromat shall repay to the Customer any money paid by the Customer for the Goods. Aaromat shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.2 In the event that the Customer cancels delivery of the Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Aaromat as a direct result of the cancellation (including, but not limited to, any loss of profits).
21. Privacy Act 1988 – Australian Privacy Principals (APPs) 2014
21.1 The Customer agrees for Aaromat to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by Aaromat.
21.2 The Customer agrees that Aaromat may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
21.3 The Customer consents to Aaromat being given a consumer credit report to collect overdue payment on commercial credit.
21.4 The Customer agrees that personal credit information provided may be used and retained by Aaromat for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods, Goods; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods, Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
21.5 Aaromat may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
21.6 The information given to the CRB may include:
(a) personal information as outlined in 21.1 above;
(b) name of the credit provider and that Aaromat is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer or commercial credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and Aaromat has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of Aaromat, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
21.7 The Customer shall have the right to request (by e-mail) from Aaromat:
(a) a copy of the information about the Customer retained by Aaromat and the right to request that Aaromat correct any incorrect information; and
(b) that Aaromat does not disclose any personal information about the Customer for the purpose of direct marketing.
21.8 Aaromat will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
21.9 The Customer can make a privacy complaint by contacting Aaromat via e-mail. Aaromat will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
22. Dispute Resolution
22.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may, by further notice in writing delivered by hand or sent by certified mail to the other party, refer such dispute to arbitration. Any arbitration shall be:
a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
23. Compliance with Laws
23.1 The Customer and Aaromat shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
23.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works.
23.3 The Customer agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
For the purpose of successful installation it is the purchaser’s responsibility to ensure that Aaromat is properly informed in regard to what is underground that could cause harm to the installer or to the purchaser’s property. An example of this would be underground pipes or cables. In the absence of information from the purchaser, Aaromat will assume that undergrounds are suitable for the installation & will not be held responsible if any damage occurs. In the case of immovable rock or concrete where a core drilled or jack-hammered hole is necessary, the additional cost of $24 + GST per hole will apply.
25. Drilling of Tiles
Whilst all care and due diligence is taken when the drilling of tiles is required, the inconsistent nature of the substrate & quality of tiling varies greatly. Aaromat will not be held responsible for any cracked or broken tiles.
26. Building and Construction Industry Payments Act 2004 (Qld)
26.1 At Aaromat’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Materials then the provisions of the Building and Construction Industry Payment Act 2004 (Qld) may apply.
27.1 The failure by Aaromat to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Aaromat’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.
27.2 These terms and conditions and any contract to which they apply shall be governed by the laws in which Aaromat has its principal place of business, and are subject to the jurisdiction of the courts in that state.
27.3 Subject to clause 18. Aaromat shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Aaromat of these terms and conditions (alternatively Aaromat liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
27.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Aaromat nor to withhold payment of any invoice because part of that invoice is in dispute.
27.5 Aaromat may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
27.6 The Customer agrees that Aaromat may amend these terms and conditions at any time. If Aaromat makes a change to these terms and conditions, then that change will take effect from the date on which Aaromat notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Aaromat to provide Goods to the Customer.
27.7 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.
27.8 The Customer 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.