Terms & Conditions

Current and effective as of the 1st January 2025 with the inclusion of Clause 23 Video and Audio recording and Clause 24 Photography.
KESHEH PTY LTD T/A ESSPADA NON STANDARD FORM CONTRACT
Terms & Conditions of the Tax Invoice / Contract of Sale, All Terms below are available for negotiation and personalisation prior to acceptance of the contract of sale.
The purchaser has performed Due Diligence in researching the materials prior to purchasing, that they are in fact, fit for the purpose they are intended for. This includes accepting all care and maintenance obligations as well as Warranty and terms of Warranty.

1 Interpretation
1.1 In these terms and conditions:
a. ‘CCA’ means the Competition and Consumer Act 2010 (Cth) and any amendment thereof;
b. ‘GST Act’ means the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth);
c. ‘Agreement’ means the agreement between the Company and the Purchaser to provide Goods to the Purchaser subject to these Terms and Conditions of Trade (‘Terms’) as defined in clause 4.1 below.
d. ‘Consumer Guarantee’ means the guarantees provided for in Part 3-2 Division 1 of the Australian Consumer Law or any amendment thereof;
e. ‘Company’ Refers to Esspada Collection whether trading in its own name or not;
f. ‘Credit Agreement’ means the credit application, guarantee and terms and conditions of credit of the Company as amended from time to time applicable to the Purchaser upon being granted credit by the Company;
g. ‘Goods’ means the products supplied by the Company to the Purchaser;
h. ‘GST’ means the Goods and Services Tax as defined in the Act;
i. ‘Major Failure’ has the same meaning as defined in the Australian Consumer Law;
ACL refers to Australian Consumer Law
j. ‘Normal Working Hours’ means Monday to Friday from 10:00 to 16:00, allowing travel to and from the office, excluding weekends and public holidays;
k. ‘Purchaser’ means the purchaser of the Goods;
l. ‘Quotation’ means any quotation document given by the Company to the Purchaser;
m. ‘Rates Schedule’ means the schedule and/or terms of rates and charges provided to the Purchaser from the Company from time to time, whether included in a Trade Agreement or otherwise, which rates and charges may be subject to change without notice;
n. ‘Trade Agreement’ means any separate Trade Agreement agreed between the Company and the Purchaser in respect of any additional terms or conditions as amended in writing from time to time.

2 Terms
2.1 These terms are subject to alteration without notice.
2.2 This Agreement and or Contract commences on the date the Purchaser accepts the Quotation in writing or signs the contract or by placing a deposit.

3 Price
3.1 The price of all Goods supplied by the Company will be set at the current rate as determined by the Company at the time of delivery pursuant to the then current Rates Schedule, unless the Company and the Purchaser enter into separate Trade Agreement and clause 4.1b. applies.
3.2 All prices unless otherwise specified are exclusive of GST and any GST payable must be paid by the Purchaser to the Company in the same manner and at the same time as the consideration for the supply is required to be paid by the Purchaser under these Terms.
3.3 Prices are subject to change at any time without notice, however the Company will endeavour to provide sixty (60) days’ notice where possible.
3.4 The Purchaser will provide to the Company its Australian Business Number (ABN) and any other information required by the Company or by law prior to placing any order with the Company.

4 Precedence
4.1 These Terms, the Quotation, the Rates Schedule, the Credit Application, the Credit Terms, the Trade Agreement and any other written instruction or authority provided by the Company to proceed constitutes the entire agreement (‘Agreement’) between the Purchaser and the Company to the maximum extent permitted by law, and:

a. subject to clause 4.1 (b) and 4.1(c), this Agreement supersedes all prior or contemporaneous oral or written communications, proposals, terms and representations to the maximum extent permitted by law and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communication between the parties during the term of the Agreement;
b. anything contained in any Trade Agreement between the Company and the Purchaser which is inconsistent with these Terms shall prevail to the extent of any such inconsistency; and
c. no modification to the Contract of Sale will be binding, unless in writing and signed by a duly authorised representative of each party.

5 Quotations, Inspections and Orders
5.1 Any Quotation will remain valid for a period of Seven (7) days from the date on which it was made. Quotations are priced from $150.00 – $500.00 dependent on difficulty and travel times. Quotation costs are deducted from any refunded deposit to cover costs associated from work undertaken to provide the Quotation. Otherwise the quotation cost is covered within the final contract price.
5.2 A minimum value of 20% (including GST) applies to each Order.
5.3 Prices in the Quotation:

a. Are subject to the Company’s Rates Schedule current at the date of the Quotation unless otherwise varied in writing;
b. are based on rates of labour, cost of materials, services and currency exchange rates current at the date of the Quotation;
c. are based on rates of customs duty, freight exchange and sales tax current at the date of the Quotation; and
d. the Purchaser acknowledges and agrees that the prices or estimates in the Quotation or Contract may vary after the date of the Quotation or Contract and/or after an onsite inspection and that it will pay for all additional incidental or ancillary charges, rates and disbursements as reasonably required by the Company or any third party. The Company will promptly notify the Purchaser of any such variation in writing.
e. Quotation prices that are made on plans or estimates are subject to change pending a final site inspection.

5.4 Any Order for customised Goods or Goods which must be specially sourced or ordered by the Company for the Purchaser (not regular stock) cannot be cancelled once the production or sourcing/purchasing of these Goods has commenced.
5.5 The purchaser irrevocably agrees the Company cannot be held liable for manufacturing shipment delays of customised Goods or Goods which must be specially sourced or ordered by the Company for the Purchaser. The Purchaser cannot cancel a contract for delays that is outside the control of the Company.
5.6 The Company may in its discretion refuse to supply any Order for any reason whatsoever.
5.7 The Company is under no obligation to supply any Goods until such time as it communicates to the Purchaser the Company’s acceptance of the Purchaser’s order.
5.8 The Purchaser acknowledges that once an order has been placed, the Company is under no obligation to accept any variation to that Order requested by the Purchaser. If the Company does accept a variation to an order, the Purchaser acknowledges and agrees that the Company may vary the delivery date for the Goods and the price as a result of that variation.

a. The Purchaser irrevocably authorises the Company, its servants and agents to make variation of materials to complete an order should the contracted/ordered materials not be available at the time of ordering and the purchaser cannot wait for the order to be fulfilled i.e. The companies prior knowledge of deadlines / target dates that need to be met. The purchaser shall only be notified should a major variation of materials be required.
b. If the variation of materials are of greater value the purchaser will be liable to pay the difference in cost.
c. If the variation of materials are of lesser value the Company shall be liable to refund the difference to the purchaser after completion.

5.9 Each order placed by the Purchaser shall be a representation to the Company that the Purchaser is solvent and able to pay the Company’s accounts as and when they are due.
5.10 Full payment of Goods ordered or on hold by the Company shall be paid by the Purchaser in full within 30 days from the date the Purchaser signed the Agreement, unless otherwise stated by agreement of both parties signed and in print on the Agreement. Failure to do so shall cause the Purchaser to be in Breach of Contract and the Purchaser forfeit any monies paid without contest.
5.11 Any Goods, SUPPLY ONLY, ordered or on hold by the Company shall be picked up within (7) seven days from the date of arrival at the Castle Hill warehouse. Failure to pick the Goods up with in the specified time shall incur a $65.00 + GST per week, and part thereof, warehousing fee. Goods will not be released until the warehousing fee is paid.
5.12 No receipt, no pick up, no exceptions. For customers picking up Warehouse operating hours 9:00 am – 3:30 pm Monday – Friday. Please provide a minimum of 48 hours’ notice prior to pick up. Please note your order will be on a pallet and forklifted onto your vehicle as staff are forbidden to hand-load Purchasers vehicles. If you are unable to take your pallet, a pallet disposal fee of $35.00 is applicable. Please make sure you bring an appropriate vehicle. The Purchaser takes full responsibility for undertaking safe loading practices and indemnifies The Company from any such allegations of unsafe and or improper loading of materials.
5.13 Any cancellation noted as subject to site measure or subject to final measure will be cancelled according to the amount of material ordered and shown on the current contract.
5.14 Plans / Architectural drawings made by the Company remain Property of the Company and are not supplied to the purchaser under Federal Register of Legislation Privacy Act 1988 Act No. 119 of 1988 as amended.
5.15 Inspection of works completed by third parties not directly subcontracted by the Company shall incur a $350.00 fee made payable by the Purchaser.
5.16 Changes to any contract between the Purchaser and Company due to change of mind by the Purchaser, must be approved by the Company first. An Admin fee of $45.00 + GST is applicable each time the contract is changed.

6 Credit Information
6.1 The Purchaser irrevocably authorises the Company, its servants and agents to make such enquiries as it deems necessary to investigate the credit worthiness of the Purchaser from time to time, including the making of enquiries with persons nominated as trade references, the bankers of the Purchaser, any other credit provider or a credit reporting agency (hereinafter called ‘the Information Sources’). The Purchaser authorises the Information Sources to disclose to the Company such information concerning the Purchaser that is within their possession and which is required by the Company to the fullest extent permitted by the relevant privacy laws of the territory.
6.2 The Purchaser agrees that the information provided on any credit application signed by the Purchaser concerning the Purchaser may be disclosed by the Company to a credit reporting agency or any other interested person to the fullest extent permitted by the relevant privacy laws of the territory.
6.3 The Purchaser acknowledges and agrees that they shall be liable for all cost associated with debt collection or debt collection agency should the contract or account fall into default or breach. The cost will be added by the Debt Collection Agency and will be in addition of the original outstanding amount.
6.4 The Supplier may, in its sole and unfettered discretion, charge interest to the Purchaser on all amounts that are Fourteen (14) days overdue to the Supplier for the date of sale of the goods until payment at that rate, which is equal to 2% greater than the rate specified by the Penalty Interest Rates Act (1983) (NSW). Where payment is not made by the due date, the Purchaser shall, in addition to any other obligations imposed hereunder, pay to the Supplier on demand all costs of the Supplier (including but not limited to storage delivery collection obsolescence, debt recovery commission costs and legal costs on a full indemnity basis) incurred by the Supplier in recovering overdue amounts from the Customer.
6.5 All payments received by the Supplier shall be applied as follows:

a. Firstly, towards any costs of the Supplier referred to above (or any part thereof);
b. Secondly, towards any interest payable as set out above (or any part thereof); and
c. Thirdly, towards any amounts payable by the Purchaser to the Company.

7 Terms of Payment
7.1 A 20% Deposit is required. Full payment of Goods ordered or on hold by the Company shall be paid by the Purchaser in full within 30 days from the date the Purchaser signed the Agreement, unless otherwise stated by agreement of both parties signed and in print on the Agreement. Failure to do so shall cause the Purchaser to be in Breach of Contract and the Purchaser forfeit any monies paid without contest.
7.2 .All payments will be made by credit card, direct debit, electronic funds transfer, cash or bank cheque. Company or personal cheques are accepted as deposit only.
7.3 Unless otherwise provided by the Company in writing, all invoices are due and payable by the last business day of the calendar month following the month in which the invoice to which the Goods relate is issued subject only to any Trade Agreement entered into by the Purchaser and the Company 7.4 Any agreement by the Company to extend the terms of credit or other indulgence granted to the Purchaser shall not affect the Purchaser’s liability to account to the Company as aforesaid.
7.5 If the Purchaser defaults in making payment in accordance with these Terms, the Company may in its absolute discretion and without notice:

a. charge the Purchaser compound interest calculated on that portion of the Purchaser’s account overdue at 2 percent above the penalty rate fixed under the Penalty Interest Rates Act 1983 (New South Wales), Australia, or NSW pre court judgment from time to time, calculated And payable daily from the due date until the date on which the invoice is paid in full; and
b. require the Purchaser to reimburse the Company for all collection costs including (but not limited to) legal costs incurred by the Company, calculated on a solicitor , or legal representative and client basis, as a consequence of the Company instructing its solicitor, or legal representative to provide advice to it in connection with the default and/or to institute such recovery process as the Company in its absolute discretion decides and any other costs, expenses, losses or damages arising out of a breach of the Agreement.

7.6 The Purchaser agrees at the request of the Company to procure its directors to sign a guarantee and indemnity of the Purchaser’s obligations to pay any amount due and payable to the Company, if and when required.
7.7 Any Credit Application approved by the Company for the Purchaser related to trading between the Company and the Purchaser is granted by the Company on the basis of it reliance on information supplied by and representations made on behalf of the Purchaser and, in particular, on the information disclosed by the Purchaser in relation to the ownership of the Purchaser as set out in the Credit
7.8 If the Purchaser is a company or trustee it shall inform the Company of any changes to the ownership of the Purchaser whether total or partial by forwarding a notice in writing of that change to the Company immediately upon becoming aware of same. Until such notice as required in clause 7.6 is received by the Company the Purchaser, and if the Purchaser is a trustee each of the trustees, shall hold the Company indemnified against all losses, unpaid accounts, interest, damages, costs, charges, fees and expenses of whatsoever nature incurred or suffered by the Company in trading with any person, company or other entity (including a trust) which may have purchased the
Purchaser’s business or any interest therein or any of the shares in the Purchaser and used the Purchaser’s previously approved credit account for trading.
7.9 .Until such notice as required in clause 7.6 is received by the Company the Purchaser, and if the Purchaser is a trustee each of the trustees, shall hold the Company indemnified against all losses, unpaid accounts, interest, damages, costs, charges, fees and expenses of whatsoever nature incurred or suffered by the Company in trading with any person, company or other entity (including a trust) which may have purchased the Purchaser’s business or any interest therein or any of the shares in the Purchaser and used the Purchaser’s previously approved credit account for trading.
7.10 The Purchaser authorises the Company to lodge a caveat over any real property owned or partly owned by the Purchaser in respect of, and to secure any monies that are owed by the Purchaser to the Company.
7.11 Any credit facility granted by the Company to the Purchaser shall continue until terminated by the Company at its sole discretion. Termination by the Company of any credit facility shall be either verbal or in writing.
7.12 .Any failure by the Company to exercise any of its rights pursuant to this Agreement shall not constitute a waiver of any of its rights in respect of any other or subsequent breach by the Purchaser.
7.13 Returns or refunds are governed under Australian consumer law. Any and all returns that are accepted are subject to a 20% restocking fee of the total price of the materials purchased.
7.14 Materials not normally stocked and have been ordered specifically for the Purchaser must be paid in full and will not be refunded in accordance with the ACL.
7.15 Each and every payment that falls overdue will be subject to a $35.00 + GST late Payment fee and will be added to your invoice and will be payable prior to the Contract proceeding / continuing.

8 Rates and Charges
8.1 The Purchaser agrees to be bound by the Company’s prescribed rates and charges as set out in the Rates Schedule from time to time or as otherwise agreed between the Purchaser and the Company in writing.

9 Publicity & Intellectual Property
9.1 The Purchaser acknowledges that any intellectual property in the Goods is owned by the Company.
9.2 The Purchaser agrees not to disclose to others any proprietary or confidential information acquired hereunder including the terms of the Agreement except as authorised in writing by the Company or as required by law.

10 Delivery and Cancellation
10.1 The Company accepts no responsibility for delivery of the Goods but may, in its’ sole discretion, elect to arrange delivery of the Goods and charge the Purchaser a delivery fee.
10.2 The Company will make all reasonable efforts to deliver the Goods by the agreed delivery date but will not be liable in any way should delivery not be made on this date.
10.3 A certificate or delivery docket signed by an authorised Company representative confirming delivery of Goods shall be conclusive evidence of delivery.
10.4 Subject to clause 5.3, an order or Quotation shall only be cancelled or varied with the written agreement of both parties.
10.5 Any agreement to cancel or vary a Quotation or an order pursuant to clause 10.4 shall be subject to the Company being compensated for any costs incurred with respect to the order prior to the cancellation or variation
10.6 Cancellations Explanation: If you wish to cancel your contract (Breach) All Materials stated on the contract of sale that have been ordered or on hold for you or set aside in the warehouse for you, including but not limited to, any labour, postponement of installation, site inspections, delivery or storage charges up to the cancellation date are payable by you.

11 Withholding Supply
11.1 The Company reserves the right, irrespective of whether or not any Quotation has been accepted, to withhold supply of Goods to the Purchaser where the Company has determined, in its absolute discretion, that credit should no longer be extended to the Purchaser and the Company will not be liable for any loss or damage resulting directly or indirectly from such action.

12 Purchaser Liability and Default.
12.1 Subfloor flatness and structural integrity: The product requires a flat, unmoving subfloor. Subfloors that at the time of installation that meet the Industry Standard or the Manufacturers recommendation but subsequently deflect outside of the Industry Standard or the Manufacturers recommendation will be excluded from any warranty. Subfloors that shift, move or otherwise change their position or level will void these warranties this includes all property foundations.
12.2 The Purchaser shall make good as per AS 3600:2018, the concrete slab, timber subfloor or existing subfloor. All subfloors need to be sufficiently flat to accept the flooring system (floated , direct adhesive fix and solid timber). For floating floors this generally does not exceed 3mm beneath a 1m long straight edge. For direct adhesive fix and solid timber floor applications 3mm beneath a 3m long straight edge applies. For Concrete structures, deviations to the surface greater than Above prescribed are to be filled with a self levelling compound following manufacturers recommendations, or ground down to conform to the aforementioned specification for flatness. Same is said for existing timber structures and sub-floors.
12.3 Should the customer fail to make good the Subfloor, concrete or existing timber, the Company Shall make good the subfloor at cost to the customer Of the Companies discretion providing notice of cost to the customer.
12.4 Cancellation or postponement due to subfloor rectification cost Refer to clause 5.1 , 7.12 and 10.6. full payment of materials contained in the contract must be made without contest. A postponement/cancellation administration fee of $650.00 per day
is payable will be charged based on how many days your installation was booked for in addition to all monies already paid against the contract to cover the Subcontractor’s loss of income and Admin staff.
12.5 If the Purchaser:

a. fails to make any payment due under the Agreement or commit any other breach of any of the Purchaser’s obligations under the Agreement; or
b. suffers any execution;
c. commits an act of bankruptcy;
d. makes any composition or arrangement with creditors;
e. stops payment or cease or threaten to cease to carry on its business or pay its debts as and when they fall due;
f. being a company, pass a resolution for winding up except for the purposes of a solvent reconstruction or have a receiver appointed over any of its property, or an administrator appointed, or have a winding up petition presented against it;
g. Impedes the sales or installation process by any means or causes ruckus or confrontation regardless of premises or site; or
h. breaches this Agreement;

then the Company may at its option treat the Agreement as terminated and any amounts owing to the Company then unpaid whether or not due under the terms of this Agreement (including any amount arising from any outstanding but unfilled orders as at the date of termination) shall forthwith become due and payable and such termination shall be without prejudice to any claim or rights the Company may possess.
12.6 Dispute over size of area to be laid: Should the purchaser make claim to the size of the area to be installed be smaller than the Companies representative, The company shall reduce the size and cost reflected on the contract to the purchasers claim. The purchaser then will assume all responsibility and costs, including but not limited to, supply, transport , installation, administration and any other associated costs should the materials fall short. The purchaser shall assume all responsibility if the materials are discontinued or cannot be supplied.

13 Return Policy for Goods and Warranty Claims
13.1 Subject to the Purchaser’s statutory rights under the CCA:

a. Any Goods supplied in accordance with the Purchaser’s custom requirements or specially sourced by the Company for the Purchaser will not be acceptable for return and/or credit;
b. Where the Purchaser makes a claim for a credit or refund in respect of Goods, the Goods must be in their original undamaged packaging, other than where the Purchaser is making a claim in respect of the Goods under the CCA;
c. No Goods will be accepted for return and credit after two (2) months from the date of invoice unless the return or a claim is made under the CCA, in which case the Goods must be returned within a reasonable time;
d. If the Company in its sole discretion agrees to accept the return of any Goods, they must be in an ‘as new’ and saleable condition free of any damage.;
e. Upon the receipt of the returned Goods, the Company will credit to the Purchaser the Purchase Price for the Goods, less any restocking fee charged by the Company from time to time (‘Restocking Fee’) or other monies owing by the Purchaser to the Company; and
f. The Purchaser will be responsible for the cost of and for effecting the delivery to the Company of any Goods returned under this Clause 13. The Company will be responsible for the cost of, and for effecting, the delivery to the Purchaser of any Goods replaced under this Clause.

13.2 Nothing in this clause affects any statutory obligations of the Company in relation to the Goods (or corresponding rights of the Purchaser), that may not lawfully be excluded.
13.3 No Return, credit or compensation will be accepted if items or Merchandise have been altered from original, this includes cutting and installation of faulty items with pre-existing knowledge of the fault or faults.
13.4 Warranty Claim Form: A warranty claim form can be requested from info@esspada.com The customer must submit the form within a period of one calendar month of first detecting the defect. We will then arrange for the goods to be inspected and determine whether they are defective (Manufacturer Fault) or an installation concern and if we agree it is an installation concern we will (at our option) either repair the goods, or replace the goods with new goods. A call out fee of $350.00 will be charged for inspection if we determine that the goods are NOT defective or NOT a problem caused by installation.
13.5 Manufacture Faults and Major Failure: The Purchaser shall irrevocably indemnify Kesheh Pty Ltd T/A Esspada and all its employees against litigation in regards to Manufacturing faults of materials or major failure and shall pursue The Manufacturer directly and solely for resolution or determination.

14 Dispute Resolution
14.1 If a dispute arises in any way out of this Agreement, or its breach, termination or validity or the Goods the subject of this Agreement, the parties agree to endeavour to settle the dispute by mediation before having recourse to litigation, other than for disputes involving the payment for Goods by the Purchaser.
14.2 All costs incurred by the Company as a result of any litigation process by the Purchaser, the Purchaser is liable to pay all costs incurred should the Purchaser be unsuccessful in the litigation.
14.3 Nothing in this Agreement prevents either party from seeking urgent interlocutory intervention.

15 Force Majeure
15.1 The Company will not be liable in damages or otherwise for any failure to provide the Goods which is caused, whether wholly or partially, by an event beyond its reasonable control including (but not limited to) Act of God, force majeure, war, fire, explosion, acts of terrorism, rioting, burglary, theft, civil disturbances, restrictions by governments (local, municipal, State or Federal) or other competent authority, general economic trends, strikes, industrial action or lockouts (whether at the Company’s premises or not), accidents either at the Company’s premises or when in transit to or from those premises, failure by subcontractors and the late arrival of inventory or other material.

16 Personal Properties Securities Act
16.1 PPS Act means the Personal Properties Securities Act 2009 (Cth).
16.2 The Company and the Purchaser acknowledges that following the commencement of the PPS Act, the following provisions apply to this Agreement.
16.3 The Purchaser agrees that the Company has a security interest (for the purposes of the PPS Act) created under these Terms and Conditions in each item of Goods supplied to the Purchaser, and agrees to treat that security as a continuing and subsisting interest in the relevant Goods with priority over any registered or unregistered general (or other) security and any unsecured creditor, even if the Goods become fixtures before paid in full and that security interest secures all monies owing to the Company under this Agreement or otherwise.
16.4 The Purchaser grants to the Company a purchase money security interest (PMSI) and agrees that the PMSI granted hereby will continue to apply to any Goods coming into existence or proceeds of sale of Goods coming into existence.
16.5 The Purchaser agrees that the PMSI has attached to all Goods now or in the future supplied by the Company to the Purchaser.
16.6 The Purchaser acknowledges that the Company has the right to register a financing statement in respect of the relevant Goods and agrees to sign any further documents and provide any further information, such information to be complete, accurate and current in all respects, that the Company reasonably requires to register a financing statement and its security interests, with the priority the Company requires, and to maintain those registrations.
16.7 The Parties agree that neither will disclose to ‘Interested persons’ (as defined in section 275(9) of the PPS Act) or any other person, any information of the kind described in section 275(1) of the PPS Act.
16.8 The Purchaser waives its right to receive any notice under the PPS Act (including a notice of a verification statement) unless the notice is required by the PPS Act and that requirement cannot be excluded. 16.9 The Purchaser agrees, until title in the Goods passes to it, to keep and maintain all Goods free of any charge, lien or security interest except as created under these Terms and Conditions, and not otherwise to deal with Goods in a way that will, or may, prejudice the rights of the Company under these Terms and Conditions or the PPS Act.
16.10 The Purchaser irrevocably grants to the Company the right to enter any premises or property of the Purchaser without notice, and without being in any way liable to the Purchaser or any other person, if the Company has cause to exercise any of its rights under the PPS Act, and the Purchaser agrees to indemnify the Company against any such liability.

17 Reservation of Title and Risk
17.1 Title to the Goods will not pass from the Company to the Purchaser until the Company receives payment in full for all Goods and for all money owing by the Purchaser to the Company on any account whatsoever.
17.2 Notwithstanding clause 17.1, risk in the Goods shall pass to the Purchaser upon the sooner of happening of the delivery to the delivery destination or upon the loading of the Goods on an third party vehicle or the Purchaser’s vehicle for delivery to the delivery destination.
17.3 Until title to the Goods passes to the Purchaser in accordance with clause 17.1 the Purchaser holds the Goods as bailee and fiduciary agent of the Company and will be responsible for any loss, destruction or conversion of the Goods.
17.4 The Purchaser must keep the goods insured and in a safe and marketable condition and the Purchaser must store the Goods separately in a manner that clearly identifies them as the property of the Company until such time as the Goods are paid for in full and the Purchaser agrees that the Company and or its employees, agents or representatives may enter onto its premises to inspect or recover the Goods or inspect the Purchaser’s books or records regarding the Goods at any time.
17.5 The Purchaser may, notwithstanding the provision of Clause 17.3 and 17.4, resell the Goods onto any third party in the ordinary course of business provided that the proceeds of such sale will be kept separate from other funds and are immediately applied in payment to the Company, however, the Purchaser may not bind or place any obligation on the Company whatsoever in any agreement for the sale of those Goods; and
17.6 to the extent that any of the Goods are mixed with, or form a component of any other goods (‘Mixed Goods’), the Purchaser will hold on trust for the Company the portion of any proceeds which it receives from the sale of any of those Mixed Goods that relate to the respective Goods and will keep those amounts in a separate bank account and immediately apply same in payment to the Company.

18 Exclusions and Limitations
18.1 The Company excludes all statutory or implied conditions and warranties to the maximum extent permitted by law.
18.2 Subject to Clauses 17.3 and 17.5, the maximum liability of the Company for any and all breaches of this Agreement will be capped at the amount of the Outstanding Amounts previously paid by the Purchaser to the Company under this Agreement.
18.3 If any law, implies in this Agreement any term, condition, warranty or Consumer Guarantee and that law avoids or prohibits provisions in an agreement excluding or modifying the application of or exercise of, or liability under, that term, condition or warranty, that term, condition, warranty or Consumer Guarantee shall be deemed to be included in this Agreement provided that the liability of the Company for a breach of the applicable term, condition or warranty (other than where such limitation is excluded by law) is limited to, at the option of the Company. If the breach relates to Goods:

(i) the replacement of the goods or the supply of equivalent goods, the repair of the goods;
(ii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iii) the payment of the cost of having the goods repaired

unless there is a Major Failure with respect to the goods, in which case the Purchaser will be entitled to a remedy under the CCA.
18.4 The Purchaser acknowledges that the Purchaser does not rely, and that it is unreasonable for the Purchaser to rely, on the skill and judgment of the Company as to whether the Goods supplied are reasonably fit for any purpose for which they are being acquired, and that the sale is not a sale of goods by description or sample.
18.5 To the maximum extent permitted by law, the Company excludes its liability (including, but not limited to, liability in tort, contract and for breach of statute) to the Purchaser or any other person for:

a. any loss or damage consequential or otherwise (whether contractual, tortious, statutory or otherwise) for any special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, or revenue arising out of or in connection with the provision of the Goods and whether as a result of any breach, default, negligence or otherwise by the Company suffered or incurred by the Purchaser or any other person in relation to the Goods; and
b. in particular, but without limiting clause 18.5a., any loss or damage consequential or otherwise suffered or incurred by the Purchaser or any other person caused by or resulting directly from any failure, defect or deficiency of any kind of or in the Goods.

19 Warranty
19.1 Any claims by the Purchaser in relation to the Goods other than for returns, which must be made in accordance with clause 13 or warranty claims which must be made in accordance with the Company’s warranty policy, must be made within the manufacturer’s warranty period. All installation of products by the Company carries a 12 month Warranty.
19.2 Any other claims for adjustment to any invoice for any reason whatsoever must be made in writing within thirty (30) days of said invoice.
19.3 Nothing in this clause affects any statutory obligations of the Company (and corresponding rights of the Purchaser), which may not lawfully be excluded.
19.4 Any Claim / Dispute for warranty, that the Company does not deem valid, must be proven by an applicable qualified Independent inspector. The onus for the burden of proof lies with the party initiating or filing a claim.
19.5 Warranty exclusions both by the Manufacturer and Installation by the Company or its representatives:

(1) non-observance of maintenance instructions or Specifications provided by the Manufacturer or the Company or its representatives writing;
(2) Purchasers abuse, improper use, or neglect of Goods or Services;
(3) unauthorized alterations, modifications or additions made to Goods or Services by the Purchaser or
(4) Purchaser fails to pay in full for the Products, Goods or Services.
(5) Damage or failure of Products, Goods or Services due to extreme weather events and natural disasters (fire, storms, floods, earthquakes)
(6) Purchaser fails to protect the Products, Goods or Services from direct sunlight and UV rays.

19.6 Sub-floor conditions. The Company shall not be held responsible for any sub-floor defect which only becomes obvious after the floor is laid. These defects may include, but not limited to, changes in moisture content, concrete additives, Ventilation, water / moisture ingress, foundation movement and structural stability
which may or may not have been disclosed by the Client.
19.7 Indemnity: To the full extent permitted by law, Customer will indemnify the Company and keep the Company indemnified from and against any liability and any loss or damage the Company may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms by the Purchaser.

20 Privacy and Financial Information
20.1 The Purchaser acknowledges and consents to the use by the Company and its employees, officers and agents for the purpose of supply of Goods to the Purchaser hereunder and for the purposes of assessing and approving any credit application of the Purchaser of the Purchaser’s and any guarantor’s personal information in respect of but not limited to any application for credit, credit history, and in respect of obtaining reports in relation to same or for general marketing purposes and otherwise in accordance with the Company’s privacy policy from time to time, which is available upon request. Other than in the circumstances allowed under the relevant privacy laws of the territory or its privacy policy, the Company will not disclose such personal information to other parties. The Purchaser may contact the Company’s Privacy Officer at any time to access or change any personal Information provided to the Company.
20.2 The Purchaser irrevocably authorises the Company to seek and use any reports from a credit reporting agency of its choosing containing personal information about the Purchaser in relation to the collection of any monies owing by the Purchaser to the extent permitted by law. The Purchaser consents to the Company giving any information relating to the collection of any outstanding amounts to any credit-reporting agency to the extent permitted by law.
20.3 The Purchaser will provide any and all necessary instructions and/or authorities required by the Company’s accountants, debtor insurers and bankers to enable the Company to make investigations from time to time into the Purchaser’s trading and financial position.
20.4 The Purchaser’s details, including its purchases will be added to the Company’s database and will be used by the Company:

a. To identify the Purchaser;
b. To provide services to the Purchaser, including the processing of any application for or granting of credit and the management and administration of those services;
c. To provide the Purchaser with information about the Goods;
d. In undertaking risk assessment management; and
e. In gathering data and disclosing data to third parties such as:

(i) insurance brokers and insurers;
(ii) credit reporting agencies; and
(iii) financial institutions. Subcontractor Agreement under terms of contract of sale.

21 Jurisdiction
21.1 All contracts between the Company and the Purchaser or Subcontractor shall be subject to the laws of the State of NSW and the Purchaser agrees to submit to the non-exclusive jurisdiction of the Courts of New South Wales and the Federal Court of Australia.

22 Severance
22.1 If any provision of this Agreement does not comply with any law, then the provision must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all, then it must be treated as severable from the rest of this Agreement.

23 Video and Audio recording
23.1 The Purchaser irrevocably permits the Company to conduct video and /or audio recordings for the purpose of, including but not limited to, Verification of any agreement, verbal contract, site conditions, quality control and personal/employee protection.
23.2 The Purchaser irrevocably permits the Company to conduct video and /or audio recordings. The recordings may take place in business properties, private and public properties including, but not limited to, the purchasers private residence.
23.3 The Purchaser will not seek compensation, royalties or payment of any kind for use of video and /or audio recordings taken by the company.
23.4 All video and /or audio recordings by the Company may be submitted in evidence to any authority which may include the NSW Police, NSW Justice System, NCAT etc.

24 Photography
24.1 The Purchaser irrevocably permits the Company to take photographs / pictures with any device for the purpose of , including but not limited to, site conditions, advertising, references or display.
24.2 The Purchaser will not seek compensation, royalties or payment of any kind for use of photographs / pictures taken by the company.
24.3 All photographs / pictures taken by the Company may be submitted in evidence to any authority which may include the NSW Police, NSW Justice System, NCAT etc.

25 Proof of purchase
25.1 Must be in the form of the signed and completed Tax Invoice / Contract of Sale with payment in full. The Purchaser may provide original documents, photos or photocopies.

26 Variation
26.1 Any variation to the Contract of Sale after acceptance must be in writing and signed by both parties.