If you intend to transact through this website (i.e. purchase Goods and/or Services) then you warrant that you are at least 18 years of age, that you have the power to enter into this agreement and you acknowledge that this agreement creates binding and valid legal obligations upon you.
If you do not agree with or do not wish to accept the Terms and Conditions relating to this website, then please do not use this website. You are also advised that failure to accept our Terms and Conditions may result in your inability to access certain sections of this website.
We are committed to protecting your Privacy in accordance with Australian Principles. We also recognise that when you choose to provide us information about yourself that you trust us to act responsibly and in your best interests therefore we have the following policies in place to protect your personal information.
Storing Your Information
Securing Your Information
When making a transaction through this website your information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that your information can not be read by or altered by outside influences.
Information We Collect
When you request Goods and/or Services we may collect personal information supplied by you when you complete an online form in order to facilitate the purchase of Goods and/or Services. Such information will enable us to process your transactions efficiently, analyse our website services and enable us to provide a higher level of customer service (which may include informative or promotional activities).
We may also collect the following information/tracking data for statistical purposes and to help us understand how to make our website more available and user friendly for you and to measure the success of any advertising activities we may under take:
(a) Your IP address.
(b) The date and time of your visits to our website.
(c) Your clicks and activity on this site.
(d) The referring site if any through which you clicked through to this site.
(e) Technical information on your browser, device and operating systems.
Information We Release
We will only release information about you as authorised by yourself, required by law or where required in order for us to provide Goods and/or Services to yourself e.g. to third party suppliers, or delivery companies. Where supplied to such third parties the information provided will only be sufficient for the third party to perform their services and may not be used by them for any other purpose.
We will not release your information for any purpose which you could reasonably expect us not to release the information.
Except as detailed above we do not share, give, sell, rent, or lease information to third parties and your personal information will only be disclosed to those employees within our organisation who have a need to know in order to ensure you are provided with information about our products and Services or to request Goods and/or Services through this website.
Under the Privacy Act legislation you can ask to see any information we may hold about you and you also have the right to have any inaccuracies in the same corrected by us. We will comply with any such requests to the extent required by the Privacy Act legislation within fourteen (14) days of the receipt of your request.
Our website uses a technology called cookies (a small element of data that our website may send to your computer) that may be used to provide you with specific information for the purpose of us tracking site usage and traffic. These cookies do not read your hard drive but may be stored on your hard drive to enable our website to recognise you when you return to the same.
If at any time you are on a mailing list of ours then you may request to be removed from the same and we will comply with your request if there is no unsubscribe button provided then please contact us with your request using the “Contact Us” section of this website.
Our policy in relation to Returns, Damaged or Defective Goods shall be as specified in our standard Terms and Conditions for the supply of Goods and/or Services. We shall not accept returns for change of mind or if you make a wrong decision unless due to our negligence or incorrect information supplied by ourselves.
The contents of this website are at all times the copyright or trademark property of either ourselves, our suppliers or linked third parties and you may not distribute, reproduce, display, publish any trademark or other content of this website for any purpose whatsoever without the prior written approval of us, our suppliers or linked third parties (each as applicable). Furthermore you agree to indemnify us against any claims, costs, damages or losses incurred by us should you fail to comply with clause.
The display on our website of any advertiser or the provision of a link to third party websites does not constitute our endorsement of either the advertiser or third party provider or any of their website content or business practices. As we do not have any control of the content of any third party websites, access to such websites is at your sole risk and we recommend that you thoroughly review the terms and conditions of use and the Privacy policies of any third party website immediately once you access such a site.
We shall accept no liability in regards to any dealings, promotions or activities between yourself and advertisers or third party providers.
Specifications and information provided on this website are given in good faith based on our knowledge, experience, or information provided to us by manufacturers and/or suppliers, or derived from sources believed to be accurate at the time the information is received by us, therefore it is recommended if you have any concerns as to the suitability of Goods or Services provided through this website in respect of the use of the Goods or Services or their suitability for a particular use that you contact us or seek external professional opinion.
You acknowledge and accept that colours of items displayed on the website may not reflect the true and actual colour of such items as this may be affected by external influences such as the quality of images supplied to us for use, or the quality, age or settings on your monitor. If colour is a major factor in your decision making we recommend you contact us before purchase.
Display on this website does not guarantee the availability of any particular Good(s) therefore all orders placed through this website shall be subject to confirmation of acceptance by us. Orders for Services shall be subject to confirmation of suitable timeframes between you and ourselves for provision of the Services.
Due to the inherent nature of websites we cannot guarantee uninterrupted or continuous availability of this website and you accept that the website may also be unavailable from time to time for maintenance or scheduled upgrades. Where able we shall give you advanced warning of the same. We shall accept no liability in relation to website downtime whether scheduled or otherwise.
These terms and your access to our website may be terminated by us (at our sole discretion) at any time without notice or any requirement to give you a reason why. In the event of termination under this clause we shall have no liability to you whatsoever (including for any consequential or direct loss you may suffer).
This website (excluding any linked third party sites) is controlled by Havwoods Group. It can be accessed from countries around the world to the extent permitted by the website. As each country has laws that may differ from Australia, by accessing this site, you agree that the laws and statutes of Australia shall apply to any dealings, actions or claims arising out of, or in relation to, this agreement, or your use of this website, irrespective of any conflict with any laws and statutes applicable to your country of domicile. You further acknowledge and agree that the filing of a claim against us (if any) must be made in the State of Australia in which our principal business premises in Australia is domiciled, and that any legal proceedings will be conducted in English.
1.1 “Havwoods” means Select Timbers Australia Pty Ltd ATF The Select Unit Trust T/A Havwoods, its successors and assigns or any person acting on behalf of and with the authority of Select Timbers Australia Pty Ltd ATF Select Unit Trust T/A Havwoods.
1.2 “Customer” means the person/s buying the Goods 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 or Services supplied by Havwoods to the Customer at the Customer’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 (plus any GST where applicable) for the Goods as agreed between Havwoods and the Customer in accordance with clause 4 below.
1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Havwoods.
2.3 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on Havwoods’ website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
2.4 Havwoods retains the right to change specifications without notice in accordance with its policy of continued product development.
2.5 The Customer accepts and acknowledges that supply of certain species of timber may be restricted from time to time due to lack of resource and circumstances beyond Havwoods control.
2.6 The Customer accepts that it shall be the sole responsibility of the Customer (or the Customer’s agent) to ascertain prior to placement of any order with Havwoods any specific standards, requirements or ratings (e.g. Fire and Slip ratings) that any Goods to be supplied by Havwoods are expected to comply with (particularly in respect of any application that the Goods are to be used for, or any specific end result that the Customer expects the Goods to achieve), and must advise Havwoods of the same (in writing) when placing any order. Under no circumstances whatsoever will any liability be accepted by Havwoods should Goods supplied subsequently prove to be unsuitable for the end result that the Customer is trying to achieve or does not meet any standard or rating that the Customer is required to comply with, except where it can be clearly determined that the Goods supplied did not meet the Customer’s requirements as were specified in the Customer’s order.
2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act
3. Change in Control
3.1 The Customer shall give Havwoods 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 Havwoods as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At Havwoods’ sole discretion the Price shall be:
(a) as indicated on any invoice provided by Havwoods to the Customer;
(b)the Price as at the date of delivery of the Goods according to Havwoods’ current price list;
(c) Havwoods’ 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 Havwoods reserves the right to change the Price if a variation to Havwoods’ 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 floor preparation, rotten floor boards, cleaning, extra rooms, additional Goods required, take-up and disposal of old floor coverings, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges, inaccurate measurements provided by the Customer or as a result of increases to Havwoods in the cost of Goods and labour) shall allow Havwoods the right to halt all Services until such time as Havwoods and the Customer agree to changes to the plans and/or specifications as outlined in the quotation to incorporate such variances. Variations will be charged for on the basis of Havwoods’ quotation, and will be detailed in writing, and shown as variations on Havwoods’ invoice. The Customer shall be required to respond to any variation submitted by Havwoods within ten (10) working days. Failure to do so will entitle Havwoods to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
4.3 At Havwoods’ 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 Customer on the date/s determined by Havwoods, which may be:
(a) thirty (30) days following the date of the invoice;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Havwoods.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction) or by any other method as agreed to between the Customer and Havwoods.
4.6 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 Havwoods nor to withhold payment of any invoice because part of that invoice is in dispute.
4.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Havwoods an amount equal to any GST Havwoods must pay for any supply by Havwoods 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.
5.1 The Services commencement date will be put back and the building period extended by whatever time is reasonable in the event that Havwoods claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond Havwoods’ control including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the site ready for installation; or
(c) notify Havwoods that the site is ready.
5.2 Subject to clause 5.2 it is Havwoods’ responsibility to ensure that the Services start as soon as it is reasonably possible.
5.3 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 Havwoods’ address; or
(b) Havwoods (or Havwoods’ nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
5.4 At Havwoods’ sole discretion the cost of delivery is in addition to the Price.
5.5 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Havwoods shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.6 The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.7 Any time or date given by Havwoods to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and Havwoods will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6.1 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.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Havwoods is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Havwoods is sufficient evidence of Havwoods’ rights to receive the insurance proceeds without the need for any person dealing with Havwoods to make further enquiries.
6.3 If the Customer requests Havwoods to leave Goods outside Havwoods’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
6.4 The Customer acknowledges and accepts that:
(a) Havwoods web site displays images of natural products. Whilst every effort has been made to reproduce flooring samples and images, the colours shown are only as accurate as your display will allow. Colour variations will occur for which Havwoods accepts no responsibility.
(b) Goods supplied may:
(i) exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time; and
(ii) mark or stain if exposed to certain substances; be damaged or disfigured by impact or scratching; and
(c) skirting Boards/Kick Boards may exhibit some markings on these surfaces due to the necessity of high speed sanding equipment to be operated right up to the skirting to achieve the best possible result; and
(d) coatings may reject Polyurethane with some chemical substances for example, old wax, polish, oils and even natural resins in timber. Any subsequent recoats necessary to rectify this occurrence may be charged for; and
(e) beadings, trim and/or silicone is not included unless specified in the quotation; and
(f) different types of old floor coverings for example “Black Japan”, old coatings or wax may produce a “two tone” effect in some older timbers, which cannot be sanded out; and
(g) movement between boards may stretch polyurethane and cause an opaque line;
(h) gaps between boards may cause ‘quilting’; and
(i) swirling marks from rotary equipment is a normal part of the sanding process and can bevisible under certain lighting; and
(j) some existing stains and markings (such as black marks around nails and water marks) on the floorboards cannot be removed; and
(k) cupping of timber can occur after sanding and polishing due to moisture levels in timber; and
(l) edge bonding is a consequence of timber shrinkage and the boards been stuck together with the polyurethane and is not a result of the services provided by Havwoods.
6.5 Timber is a hydroscopic material subject to expansion and contraction, therefore, Havwoods will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods or swelling and/or cupping caused by moisture and periods of high humidity.
6.6 Havwoods shall not be liable for any damage or inconsistencies in the floor boards caused by air-conditioning, air flow, sun exposure, and dust in the air, heating or large expanses of glass windows without curtains or blinds, or any other site conditions that affect the completed condition of the floors.
6.7 Whilst Havwoods will take all due care to avoid contamination of the finished surface, Havwoods accepts no responsibility for contamination by natural contaminates such as dust or hair which may be present at the worksite.
6.8 Havwoods will only inspect or view a timber floor from a standing position, as this is generally how you will be living on it. Minor marks or slight imperfections in the floor finish that can only be viewed from a crouching or kneeling position will not be considered defects.
7. Customers Responsibilities
7.1 It is the Customers responsibility to;
(a) have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation; and
(b) remove all existing floor coverings, tacks and staples; and
(c) fully disclose any information that may affect Havwoods’ installation procedures (including, but not limited to, disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams, curing compounds that may have been used or the use of concrete over 25mpa); and.
(d) ensure the sub-floor is adequately ventilated and is structurally sound; and
(e) ensure that the levels of a sub-floor are satisfactory as the floor coverings can only follow the contours of the sub-floor and will not correct unevenness; and
(f) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Customer. All care taken but no responsibility accepted by Havwoods in this regard; and
(g) provide adequate dustsheets to protect the Customers furniture and décor. Havwoods will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by any sanding process. Flaking or crumbing walls should be temporarily covered by the Customer, until the coatings are dry; and
(h) extinguish all naked flames prior to coating including but not limited to pilot lights heaters etc; and
(i) supply a 15 amp/240 volt electrical power source to within 20 metres of the project; and
(j) ensure that full and final lighting as designed for the completed project is fully operational prior to sanding works commencing, and are made available for use at no cost for the duration of the project. Any costs incurred by Havwoods will be invoiced to the Customer should this requirement not be met; and
(k) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Customer to adhere to the installation schedule agreed to between Havwoods and the Customer, any additional costs will be invoiced to the Customer as an extra; and
(l) Havwoods is not insured to remove furniture or fittings and will not do so, nor is Havwoods licensed to move gas or electrical appliances.
7.2 The Customer agrees to indemnify Havwoods against any claims howsoever arising from the provisions in clause 7.
8.1 The Customer shall ensure that Havwoods has clear and free access to the work site at all times to enable them to undertake the works. Havwoods 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 Havwoods.
9. Compliance with Laws
9.1 The Customer and Havwoods shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services.
9.2 The Customer shall obtain (at the expense of the Customer) all licenses, permits, approvals etc. that may be required for the Goods/Services.
9.3 The Customer agrees that the site where Services are being supplied will comply with any work, health and safety laws and any other relevant safety standards or legislation.
10. Customers Disclaimer
10.1 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 him by any servant or agent of Havwoods and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that Havwoods shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Customer and shall not be transferable to any subsequent Customer.
11.1 Havwoods and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Havwoods all amounts owing to Havwoods; and
(b) the Customer has met all of its other obligations to Havwoods.
11.2 Receipt by Havwoods 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.
11.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 11.1 that the Customer is only a bailee of the Goods and must return the Goods to Havwoods on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Havwoods and must pay to Havwoods 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 Havwoods and must pay or deliver the proceeds to Havwoods 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 Havwoods and must sell, dispose of or return the resulting product to Havwoods as it so directs.
(e) the Customer irrevocably authorises Havwoods to enter any premises where Havwoods believes the Goods are kept and recover possession of the Goods.
(f) Havwoods 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 norotherwise give away any interest in the Goods while they remain the property of Havwoods.
(h) Havwoods may commence proceedings to recover the Price of the Goods
12. Personal Property Securities Act 2009 ("PPSA")
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing 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 that have previously been supplied and that will be supplied in the future by Havwoods to the Customer.
12.3 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 Havwoods 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 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, Havwoods 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 Havwoods;
(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 Havwoods;
(e) immediately advise Havwoods 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.
12.4 Havwoods 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.
12.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by Havwoods, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Customer must unconditionally ratify any actions taken by Havwoods under clauses 12.3 to 12.5. 12.9 Subject to any express provisions to the contrary (including those contained in this clause 12) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of Havwoods agreeing to supply the Goods, the Customer and/or the Guarantor 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 Customer and/or the Guarantor either now or in the future, to secure the performance by the Customer and/or the Guarantor of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Customer and/or the Guarantor indemnifies Havwoods from and against all Havwoods’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Havwoods’ rights under this clause.
13.3 The Customer irrevocably appoints Havwoods and each director of Havwoods as the Customer’s and/or the Guarantor true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s and/or the Guarantor behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify Havwoods in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. 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 Havwoods to inspect the Goods.
14.2 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 (Non-Excluded Guarantees).
14.3 Havwoods acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Havwoods makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Havwoods’ liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Customer is a consumer within the meaning of the CCA, Havwoods’ liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If Havwoods is required to replace the Goods under this clause or the CCA, but is unable to do so, Havwoods may refund any money the Customer has paid for the Goods.
14.7 If the Customer is not a consumer within the meaning of the CCA, Havwoods’ 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 Havwoods at Havwoods’ sole discretion;
(b) limited to any warranty to which Havwoods is entitled, if Havwoods did not manufacture the Goods;
(c) otherwise negated absolutely.
14.8 Subject to this clause 14, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 14.1; and
(b) Havwoods 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.
14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, Havwoods 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 any 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 Havwoods;
(e) fair wear and tear, any accident, or act of God.
14.10 Havwoods may in its absolute discretion accept non-defective Goods for return in which case Havwoods may require the Customer to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
14.11 Notwithstanding anything contained in this clause if Havwoods is required by a law to accept a return then Havwoods will only accept a return on the conditions imposed by that law.
15. Intellectual Property
15.1 Where Havwoods has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Havwoods. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Supplier.
15.2 The Customer warrants that all designs, specifications or instructions given to Havwoods will not cause Havwoods to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Havwoods against any action taken by a third party against Havwoods in respect of any such infringement.
15.3 The Customer agrees that Havwoods may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Havwoods has created for the Customer.
16. Default and Consequences of Default
16.1 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 Havwoods’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Customer owes Havwoods any money the Customer shall indemnify Havwoods from and against all costs and disbursements incurred by Havwoods in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Havwoods’ collection agency costs, and bank dishonour fees).
16.3 Further to any other rights or remedies Havwoods may have under this contract, if a Customer has made payment to Havwoods, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Havwoods under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement.
16.4 Without prejudice to Havwoods’ other remedies at law Havwoods shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Havwoods shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Havwoods becomes overdue, or in Havwoods’ opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by Havwoods;
(c) 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;
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
17.1 Without prejudice to any other remedies Havwoods may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Havwoods may suspend or terminate the supply of Goods to the Customer. Havwoods will not be liable to the Customer for any loss or damage the Customer suffers because Havwoods has exercised its rights under this clause.
17.2 Havwoods 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 Customer. On giving such notice Havwoods shall repay to the Customer any money paid by the Customer for the Goods. Havwoods shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Havwoods as a direct result of the cancellation (including, but not limited to, any loss of profits).
17.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
18. Building and Construction Industry Security of Payments Act 1999
18.1 At Havwoods’ 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 Payments Act 1999 may apply.
18.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
19. Privacy Act 1988
19.1 The Customer agrees for Havwoods to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by Havwoods.
19.2 The Customer agrees that Havwoods may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency 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. The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
19.3 The Customer consents to Havwoods being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
19.4 The Customer agrees that personal credit information provided may be used and retained by Havwoods for the following purposes (and for other purposes as shall be agreed between the Customer and Havwoods or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Havwoods, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’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 Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
19.5 Havwoods may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
19.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that Havwoods is a current credit provider to the Customer;
(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 Customer’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 Havwoods, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by Havwoods has been paid or otherwise discharged.
20. Unpaid Seller’s Rights
20.1 Where the Customer has left any item with Havwoods for repair, modification, exchange or for Havwoods to perform any other service in relation to the item and Havwoods has not received or been tendered the whole of any moneys owing to it by the Customer, Havwoods shall have, until all moneys owing to Havwoods are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
20.2 The lien of Havwoods shall continue despite the commencement of proceedings, or judgment for any moneys owing to Havwoods having been obtained against the Customer.
21.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’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.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which Havwoods has its principal place of business, and are subject to the jurisdiction of the Maitland Court in New South Wales.
21.3 Subject to clause 14 Havwoods 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 Havwoods of these terms and conditions (alternatively Havwoods’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
21.4 Havwoods may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
21.5 The Customer cannot licence or assign without the written approval of Havwoods.
21.6 Havwoods may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Havwoods’ sub- contractors without the authority of Havwoods.
21.7 The Customer agrees that Havwoods may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Havwoods to provide Goods to the Customer.
21.8 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.
21.9 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.