Terms of trade
1. Definitions and interpretation
In these Terms of Trade:
Additional Charge means:
- fees or charges for additional work performed at the Customer’s request or reasonably required as a result of the Customer’s conduct, calculated in accordance with Tavoli Designs’ then current prices.
- expenses incurred by Tavoli Designs, at the Customer’s request or reasonably required as a result of the Customer’s conduct.
Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Goods provided.
Customer means the person identified on a Quote or Order as the customer and includes the Customer’s agents and permitted assigns.
Deposit means that part of the amount payable for the Goods described in the Quote.
Goods means any goods supplied by Tavoli Designs in accordance with a Quote and these Terms of Trade.
GST means any tax payable under the, A New Tax System (Goods & Services Tax) Act 1999
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs.
Loss includes, but is not limited to, costs (including, but not limited to, party to party legal costs and Tavoli Designs’ legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Order means a purchase order for Goods placed by a Customer in response to a Quote and as varied in writing from time to time by the parties and includes the acceptance of a Quote.
PPS Law means:
- the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and
- any amendment made at any time to any other legislation as a consequence of a PPS Law.
Quote means a written description of the Goods to be provided, an estimate of Tavoli Designs’ charges for the performance of the required work and an estimate of the time frame for the performance of the work. A Quote becomes an Order on acceptance in writing or on payment of the Deposit.
Tavoli Designs ABN 54 464 217 742 of 3 Pritchard Street O’Connor Western Australia means the supplier of Goods on the Quote and includes its agents and permitted assigns.
In these Terms of Trade, unless the context otherwise requires:
- a reference to writing includes email and other communication established through Tavoli Designs’ website (if any);
- the singular includes the plural and vice versa;
- a reference to a clause or paragraph is a reference to a clause or paragraph of these Terms of Trade;
- a reference to a party to these Terms of Trade or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
- where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
- headings are for ease of reference only and do not affect the meaning or interpretation of these Terms of Trade; and
- if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
- if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
- in all other cases, must be done on the next Business Day.
2.1 Engagement of Tavoli Designs
- These Terms of Trade apply to all transactions between the Customer and Tavoli Designs relating to the provision of Goods, including all quotations, contracts and variations. These Terms of Trade take precedence over terms of trade contained in any document of the Customer or elsewhere.
- The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
- Tavoli Designs may prior to acceptance or payment of a Deposit amend any details in a Quote by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
- Tavoli Designs may provide the Customer with a Quote. Any Quote issued by Tavoli Designs is valid for 30 days from the date of issue.
- Unless otherwise expressly agreed in writing, a Quote does not include GST, the costs of delivery and/or installation of the Goods.
- Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary access and instructions to Tavoli Designs.
- Following provision of a Quote to the Customer, Tavoli Designs is not obliged to commence work until the Quote has been accepted by the Customer by accepting the Quote in writing or paying the Deposit to Tavoli Design. Acceptance of a Quote or payment of the Deposit constitutes acceptance by the Customer of these Terms of Trade including Clauses 4(e) and 4(f).
- Notwithstanding Clause 2.1(c), Tavoli Designs reserves the right to amend any Quote before the Order has been completed to take into account any rise or fall in the cost of completing the Order. Tavoli Designs will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote for the purposes of these Terms of Trade.
- An indication in a Quote of the time frame for the provision of the Goods is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon Tavoli Designs.
- Every Order by the Customer for the provision of Goods must be submitted in writing on Tavoli Designs’ standard Order form (unless otherwise agreed).
- An Order will not be placed by the Customer unless the Order clearly identifies the Goods ordered and Tavoli Designs’ Quote. Any costs incurred by Tavoli Designs in reliance on incorrect or inadequate information may result in the imposition of an Additional Charge.
- Orders must be signed by an authorised representative of the Customer and must specify the required date of delivery.
- Placement of an Order by the Customer signifies acceptance by the Customer of these Terms of Trade and the most recent Quote.
- Tavoli Designs may in its absolute discretion refuse to provide Goods pursuant to an Order where:
- Goods are unavailable for any reason whatsoever;
- credit limits cannot be agreed upon or have been exceeded; or
- payment for Goods previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of Tavoli Designs, associated with the Customer under the same or another supply contract, has not been received by Tavoli Designs.
- An Order cannot be cancelled without the prior written consent of Tavoli Designs. Where an Order is cancelled, the Customer indemnifies Tavoli Designs against any Losses incurred by Tavoli Designs as a result of the cancellation, including, but not limited to loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.
- The Customer may request that its Order be varied by providing a request in writing to Tavoli Designs. A request for a variation must be agreed to in writing by Tavoli Designs in order to have effect.
- If the Customer wishes to vary its requirements after a Quote has been prepared or accepted or after payment of the Deposit or after the placement of an Order, Tavoli Designs reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by Tavoli Designs in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods.
- Tavoli Designs has an automatic extension of time for the provision of the Goods equal to the delay caused by the variation.
6. Invoicing and payment
- Tavoli Designs may in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:
- In the manner specified in the Quote or Order;
- If there is no manner specified in the Quote or Order:
- prior to commencing the provision of the Goods , for an amount equal to the Quote and Additional Charges where Tavoli Designs has not previously carried out work for the Customer or where Tavoli Designs chooses to do so;
- at the end of each week before the Order is completed, Tavoli Designs may issue one or more invoices for a proportion or the whole of the amount of the Quote (the proportion to be calculated at Tavoli Designs’ discretion either for work done to that point, work in the future or both) and require that proportion of the Quote be paid in advance of any further Goods being provided; or
- upon completion of the provision of the Goods or any time thereafter, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing Tavoli Designs’ charge for the work performed in completing the Order and for any Additional Charges.
- The amount payable in an invoice is as per the Quote or Order and any Additional Charges.
- The Customer must pay an invoice issued by Tavoli Designs to Tavoli Designs within 14 days of a valid tax invoice being issued to the Customer.
- If any invoice is due but unpaid, Tavoli Designs may withhold the provision of any further Goods until overdue amounts are paid in full.
- Tavoli Designs may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to Tavoli Designs.
- The Customer is to pay Tavoli Designs on demand interest at the rate of 10% per annum on all overdue amounts owed by the Customer to Tavoli Designs, calculated daily.
- All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of Tavoli Designs, are to be paid by the Customer as a debt due and payable under these Terms of Trade.
- The Customer and Tavoli Designs agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
7. Additional Charges
- Tavoli Designs may require the Customer to pay Additional Charges in respect of costs incurred by Tavoli Designs as a result of reliance on inadequate or incorrect access or information provided by the Customer or access or information supplied later than required by Tavoli Designs in order for it to provide the Goods within the specified time frame (if any).
- The imposition of Additional Charges may also occur as a result of cancellation by the Customer of an Order where cancellation results in Loss of Tavoli Designs, storage costs for goods not collected from Tavoli Designs within 2 weeks of the date on which the Goods are manufactured, fabricated, created or formed additional work required by the Customer or any other occurrence which causes Tavoli Designs to incur costs in respect of the Customer’s Order additional to the quoted cost.
8. Acceptance of Goods
If the Customer fails to advise Tavoli Designs in writing of any fault in Goods or failure of Goods to accord with the Customer’s Order within 48 hours of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer’s Order. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
9. Title and risk
- Risk in Goods passes to the Customer immediately upon delivery to the Customer or despatch to the Customer from the premises of Tavoli Designs.
- Property in Goods supplied to the Customer pursuant to these Terms of Trade does not pass to the Customer until all money (including money owing in respect of other transactions between Tavoli Designs and the Customer) due and payable to Tavoli Designs by the Customer have been fully paid.
- Where Goods are supplied by Tavoli Designs to the Customer without payment in full of all moneys payable in respect of the Goods and any incidental services provided by Tavoli Designs in respect of those Goods, the Customer:
- is a bailee of the Goods until property in them passes to the Customer;
- irrevocably appoints Tavoli Designs its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of Tavoli Designs with respect to the Goods under applicable law;
- must not allow any person to have or acquire any security interest in the Goods;
- agrees that Tavoli Designs may repossess the Goods if payment is not made within 14 days (or such longer time as Tavoli Designs may, in its complete discretion, approve in writing) of the supply of the Goods; and
- the Customer grants an irrevocable licence to Tavoli Designs or its agent to enter the Customer’s premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies Tavoli Designs in respect of any damage to property or personal injury which occurs as a result of Tavoli Designs entering the Customer’s premises.
- Where Goods are supplied by Tavoli Designs to the Customer without payment in full of all moneys payable in respect of the Goods provided by Tavoli Designs in respect of those Goods, the Customer acknowledges that Tavoli Designs has a right to register and perfect a personal property security interest.
- a PPS Law applies or commences to apply to these Terms of Trade or any transaction contemplated by them, or Tavoli Designs determines (based on legal advice) that this is the case; and
- in Tavoli Designs’ opinion, the PPS Law:
- does or will adversely affect Tavoli Designs’ security position or obligations; or
- enables or would enable Tavoli Designs’ security position to be improved without adversely affecting the Customer,
Tavoli Designs may give notice to the Customer requiring the Customer to do anything (including amending these Terms of Trade or execute any new Terms and Conditions) that in Tavoli Designs’ opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph (ii)(A) or improve the security position as contemplated in paragraph (ii)(B). The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in Tavoli Designs’ opinion Tavoli Designs’ security position or obligations under or in connection with these Terms of Trade have been or will be materially adversely affected, Tavoli Designs may by further notice to the Customer cancel these Terms of Trade, in which case the Customer must pay to Tavoli Designs any money owed to Tavoli Designs by the Customer immediately.
10. Intellectual Property Rights
- The Customer warrants that it owns all Intellectual Property Rights pertaining to its Order for Goods or has a licence to authorise Tavoli Designs to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Customer to Tavoli Designs for the purposes of the Order.
- Unless specifically agreed in writing between Tavoli Designs and the Customer, all Intellectual Property Rights in any works created by Tavoli Designs on behalf of the Customer vest in and remain the property of Tavoli Designs.
- Subject to payment of all invoices due in respect of the Goods, Tavoli Designs grants to the Customer a perpetual, non-exclusive licence to use the works created or produced by Tavoli Designs in connection with the provision of Goods under these Terms of Trade for the purposes contemplated by the Order.
11. Agency and assignment
- The Customer agrees that Tavoli Designs may at any time appoint or engage an agent to perform an obligation of Tavoli Designs arising out of or pursuant to these Terms of Trade.
- Tavoli Designs has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these Terms of Trade provided that the assignee agrees to assume any duties and obligations of Tavoli Designs owed to the Customer under these Terms of Trade.
12. Default by Customer
- Each of the following occurrences constitutes an event of default:
- the Customer breaches or is alleged to have breached these Terms of Trade for any reason (including, but not limited to, defaulting on any payment due under these Terms of Trade) and fails to remedy that breach within 14 days of being given notice by Tavoli Designs to do so;
- the Customer, being a natural person, commits an act of bankruptcy;
- the Customer, being a corporation, is subject to:
- a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
- a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer’s property and undertaking;
- the entering of a scheme of arrangement (other than for the purpose of restructuring);
- any assignment for the benefit of creditors;
- the Customer purports to assign its rights under these Terms of Trade without Tavoli Designs’ prior written consent;
- Where an event of default occurs, except where payment in full has been received by Tavoli Designs, Tavoli Designs may:
- terminate these Terms of Trade;
- terminate any or all Orders and credit arrangements (if any) with the Customer;
- refuse to deliver Goods and resell them;
- pursuant to clause 9(c), repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
- retain (where applicable) all money paid on account of Goods.
- In addition to any action permitted to be taken by Tavoli Designs under paragraph (b), on the occurrence of an event of default all invoices will become immediately due and payable.
In addition to the express rights of termination provided in these Terms of Trade, a party may terminate these Terms of Trade by giving 30 days written notice to the other party.
14. Exclusions and limitation of liability
- The Customer expressly agrees that use of the Goods is at the Customer’s risk. To the full extent allowed by law, Tavoli Designs’ liability for breach of any term implied into these Terms of Trade by any law is excluded.
- All information, specifications and samples provided by Tavoli Designs in relation to the Goods are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Goods will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.
- Any advice, recommendation, information, assistance or service given by Tavoli Designs in relation to Goods is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. Tavoli Designs does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
- To the fullest extent permissible at law, Tavoli Designs is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods, or otherwise arising out of the provision of Goods, whether based on Terms of Trade, negligence, strict liability or otherwise, even if Tavoli Designs has been advised of the possibility of damages.
- The Australian Consumer Law may give to the Customer certain guarantees. Where liability for breach of any such guarantee can be limited, Tavoli Designs’ liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods.
The Customer indemnifies and keeps indemnified Tavoli Designs, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against Tavoli Designs or, for which Tavoli Designs is liable, in connection with any Loss arising from or incidental to the provision of Goods including but not limited to any legal costs incurred by Tavoli Designs in relation to meeting any claim or demand or any party/party legal casts for which Tavoli Designs is liable in connection with any such claim or demand. This provision remains in force after the termination of these Terms of Trade.
16. Force majeure
- If circumstances beyond Tavoli Designs’ control prevent or hinder its provision of the Goods, Tavoli Designs is free from any obligation to provide the Goods while those circumstances continue. Tavoli Designs may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
- Circumstances beyond Tavoli Designs’ control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
17. Dispute resolution
- If a dispute arises between the Customer and Tavoli Designs, the following procedure applies:
- A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this paragraph.
- A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
- A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
- If a dispute is notified, the dispute must immediately be referred to the parties’ respective representative. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 5 Business Days (or other period as agreed).
- Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these Terms of Trade. This paragraph survives termination of these Terms of Trade.
- Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these Terms of Trade.
- The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
18. Other matters
- These Terms of Trade are governed by the laws of the State of Western Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Western Australia.
- These Terms of Trade and any Quotes and written variations agreed to in writing by Tavoli Designs represent the whole agreement between the parties relating to the subject matter of these terms.
- These Terms of Trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
- In entering into these Terms of Trade, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by Tavoli Designs or any of its employees or agents relating to or in connection with the subject matter of these Terms of Trade.
- If any provision of these Terms of Trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
- A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
- A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; sent by facsimile transmission to the facsimile number of the addressee specified in the relevant Quote, with acknowledgment of receipt from the facsimile machine of the addressee or sent by e-mail to the e-mail address of the addressee specified in the relevant Quote with acknowledgement of delivery.
- A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by facsimile or e-mail before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
- A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.