TERMS & CONDITIONS OF TRADE (04/2008)
To the fullest extent legally possible, all dealings between P4 Pty Ltd ACN 103 117 880 (& each of its subsidiaries, divisions, affiliates, associated & related entities & its successors & assigns)(“P4”) & any Customer (" Customer") relating to any goods or services are subject to the following Terms & Conditions of Trade (“these Terms”) unless otherwise agreed in writing.
1. Purchase Price and Payments
(a) A minimum 35% or 50% deposit (at P4's election) is required upon order placement unless otherwise notified by P4 in writing.
(b) Full payment to be made within 48 hours of P4 notifying the Customer that the goods are available for delivery or such other period specified by P4 in writing. Goods will not be delivered until full payment is received.
(c) P4 may apply a payment received from the Customer to any amounts owed by the Customer (including interest, part payment of an invoice, administration, collection and other costs) in any order.
(d) Payment can be made either by Direct Credit (EFT) into P4's account or by Credit Card (MasterCard, VISA, AMEX or Diners Club). AMEX and Diners Club payments will attract a 2.5% surcharge.
(e) All payments must be made without, retention, deduction or set-off of any kind.
(f) The Customer may be charged administration charges if:
(i) it requests alterations to an order; and/or
(ii) it fails to provide accurate and correct billing and delivery details at the time it places it's order.
(g) All prices quoted by P4 exclude GST and imposts unless expressly noted thereon.
(h) Quotations remain valid and are capable of acceptance for 30 days from the date they are issued.
(i) Any discount offered by P4 is at its complete discretion and will only be available provided the Customer is not in breach of any part of these Terms and is not in default in any of its dealings with P4.
(j) Interest is payable on overdue accounts at the rate prescribed under the Penalty Interest Rates Act 1983 (Vic) plus an additional 3% and a monthly administration fee of $25 will apply.
2. Upholstery and Finishes
(a) The Customer must supply details of requested finishes when placing its order.
(b) Unless otherwise specified, all upholstery is based on plain, non-directional fabric with no allowance for pattern matching.
(a) P4 accepts no responsibility for delivery if the Customer nominates its own carrier.
(b) P4 reserves the right to charge for any delivery.
(c) The Customer shall be deemed to have accepted delivery and liability for the goods immediately P4 notifies that they are ready for collection or when they are delivered to a carrier or to the Customer's business premises or site, whether attended or not.
(d) A certificate purporting to be signed by an officer of P4 confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket.
(e) P4 will not be liable for delay, failure or inability to deliver any goods.
(f) Frustrated Delivery: If delivery requires more than one attempt, the Customer agrees to pay all costs relating thereto plus a loading of 10% to cover administration costs.
(g) Delivery dates stated are subject to the availability of materials from outside suppliers and P4 will not be liable for any claim whatsoever arising from failure to deliver.
(h) Where P4 agrees to deliver, the delivery costs quoted by P4 are for a single delivery to ground floor at one metropolitan location during normal business hours. All other delivery requirements (e.g. multi-level, after hours, weekend, regional deliveries etc) may incur extra charges.
(i) Delivery locations must be clear and free from obstruction and unrestricted lift facilities (if required by P4) must be available at no charge.
(j) Unless otherwise stated, the placement of goods and/or de-bagging of goods are not included.
(k) Short deliveries or damaged goods, should they occur, must be notified to P4 within 24 hours of the delivery/installation taking place.
(l) When a Customer requests a delayed delivery (this must be done in writing) on all or part of any order beyond the delivery date that has been previously acknowledged, the order will be held free of charge for 48 hours. After that period, the Customer will be invoiced for warehousing at a rate not less than 1.5% per month, based upon the total invoice value of the goods held by P4, with a minimum storage charge assessed by P4 at its sole discretion. At the same time the Customer will be invoiced to 90% for the goods held by P4 and risk will pass to the Customer.
(a) If P4 elects to take back goods, those goods must be in "as new" and saleable condition and upon terms agreed and a re-stocking fee of not less than 15% of invoice value will apply.
(b) Custom made or custom processed goods, or goods acquired by P4 specifically for the Customer, will not be returnable.
(c) Any goods which are accepted by P4 as defective (provided that the defects are not due to the use, misuse, installation of the goods or from fair wear and tear) may be returned and will be replaced free of charge or be the subject of a credit for the invoiced value. "Free of charge" does not include labour, transport or material costs.
(d) The following manufacturer’s minimum warranties apply against defects in workmanship and materials not caused or contributed to by the Customer:
· Two (2) years on all seating and table base products.
· One (1) year for all veneer or laminate products.
(a) Property in goods shall not pass until payment in full of all monies owed to P4 on any basis ("Full Payment").
(b) P4 reserves the right to take possession and dispose of goods as it sees fit at any time until Full Payment and the Customer grants permission to P4 to enter any property where any goods are, in order to do so and with such force as necessary.
(c) Immediately upon delivery the Customer accepts liability for the goods.
(d) A certificate signed by an officer of P4 identifying goods and certifying that monies are owing to P4 shall be conclusive evidence of P4’s title thereto.
(e) Upon sale or disposition of goods prior to Full Payment, the Customer agrees to hold all proceeds upon trust for P4 in a separate bank account, not to mix the proceeds with any other moneys, and immediately account to P4 for them even if P4 may have granted any credit facility and/or time to pay.
(f) Until Full Payment the Customer agrees:
(i) to keep all goods as fiduciary for P4 and store them in a manner which shows P4 as owner;
(ii) only to sell goods in the usual course of business; and
(iii) sale on terms, at cost or less than cost shall not be “in the usual course”.
(g) This clause 5 is not intended to create a charge and shall be read down to the extent necessary to avoid being a charge.
(h) If the Customer uses or incorporates any goods in any production, process or manufacture or combines them with anything to create a finished or combined new thing for disposition, then upon such disposition prior to Full Payment, the Customer agrees to hold such part of the proceeds thereof (and until payment is received by the Customer, that part of any applicable book debt ) as equals the costs of the goods used and/or incorporated therein (at the prices invoiced by P4 to the Customer) upon trust for P4 until Full Payment.
6. Limitation Of Liability
(a) The Customer will limit any claim upon P4 relating to goods, to the cost of replacement of goods or the supply of equivalent goods, and relating to services, to the cost of having services supplied again.
(b) Unless otherwise stipulated in these Terms, P4 will not be liable for any claim arising after 24 hours from delivery of goods or performance of services (or at all once goods have been unpacked, modified, on-sold or otherwise used or applied) after which there shall be deemed to be unqualified acceptance.
(c) P4 will not be liable in any way for any contingent, consequential, direct, indirect, special or punitive damage arising whether due to P4's negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly.
(d) No other term, condition, agreement, warranty, representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon P4, is made or given.
(e) P4 will not be liable for any claim relating to or arising from any alleged fault or defect, whether caused or contributed to by P4, the Customer or any 3rd party or otherwise.
(f) Variations in die lots, timber grain, shade and/or colour of goods supplied, particularly where surfaces are veneered with natural timbers, shall not be regarded as a fault and no claims may be made in respect of it.
7. Placement Of Orders
(a) If any dispute arises concerning any order (and including any measurement, quality, quantity, identity or authority or any telephone, facsimile, e-mail or computer generated order) the internal records of P4 will be conclusive evidence of what was ordered.
(b) Each order placed shall be and be deemed to be a representation made by the Customer at the time that it is solvent and able to pay all of its debts as and when they fall due.
(c) Failure to pay in accordance with these Terms shall be and be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 7(b) and that the representations were unconscionable, misleading and deceptive.
(d) When any order is placed, the Customer shall inform P4 of any material facts which would or might reasonably affect the commercial decision by P4 to accept the order and/or grant credit in relation thereto. Any failure to do so shall create and be deemed to create an inequality of bargaining position shall constitute and be deemed to constitute the taking of an unfair advantage of P4 and to be unconscionable, misleading and deceptive.
Variation or cancellation of any order dealing or arrangement must be agreed in writing. Any deposit paid by the Customer is non-refundable. A cancellation and/or restocking fee may also apply.
(a) No dealing with the Customer shall be or be deemed to be a sale by sample or description.
(b) If P4 publishes material about its goods and prices, any part which is incompatible with these Terms is expressly excluded.
(c) The Customer will rely on its own knowledge and expertise in choosing any product for any purpose.
(d) Any advice or assistance given for or on behalf of P4 shall be accepted at the Customer’s risk and shall not be or be deemed given as expert or adviser nor to have been relied upon.
The Customer agrees that upon on-sale of any goods to inform any third party involved of these Terms and in particular the provisions of clause 5 and especially clause 5(f).
Default or breach by the Customer of these Terms or in any dealings with P4 will entitle P4 to retain all monies paid, call-up all monies due or owing (whether currently due and owing or not), cease further deliveries and recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms or at law.
12. Products and Services
(a) P4 disclaims any responsibility or liability whatsoever relating to suitability for any particular purpose or process.
(b) The Customer agrees to check all goods prior to use alteration or any application thereof whether in relation to suitability for any particular purpose or process or otherwise.
(c) The Customer agrees to check and test all goods for compliance with all relevant applicable standards and regulatory bodies before use, on-sale or application and to use or apply the same in accordance with all applicable standards, regulations and guidelines, with all manufacturers and/or P4 recommendations and directions as well as with good commercial practice.
(d) P4 may update, modify, make substitution or alter any of its goods or any component or raw material incorporated in or used in forming any part of any goods as part of its ongoing business. The Customer agrees to accept current goods in substitution for any goods ordered provided they are not materially different.
(e) P4 disclaims any responsibility or liability relating to any goods:
(i) processed or made to designs, drawings, specifications or measurements etc or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer; and
(ii) utilised, stored, handled or used incorrectly or inappropriately.
13. Other Terms and Conditions and Notice
(a) No terms and/or conditions sought to be imposed by the Customer upon P4 shall apply unless agreed in writing by P4.
(b) The Customer will be deemed to have notice of any change to these Terms, immediately P4 adopts them.
14. Recovery Costs
The Customer will pay all costs and expenses of P4, its legal advisers, mercantile agents and others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms or breach of any dealings with P4.
To give effect to its obligations arising under in these Terms the Customer hereby irrevocably appoints any solicitor for P4 from time to time, as its attorney.
All contracts made with P4 shall be deemed to be made in Victoria and the parties submit to the jurisdiction of the appropriate Courts in or nearest Melbourne.
P4 can vary or withdraw any credit facility or limit at any time at its discretion and without any liability to the Customer or any other party.
If P4 elects not to exercise any rights arising as a result of breach of these Terms it shall not constitute a waiver of any rights relating to any subsequent or other breach.
19. Security For Payment
(a) agrees on written request to charge in favour of P4:
(i) by way of a fixed charge, all its books of account goodwill documents of title and current and later acquired real and intellectual property; and
(ii) by way of a floating charge the whole of the Customer’s other undertaking property and assets with Full Payment.
(b) grants a lien to P4 over any of its property in the possession or control of P4 until Full Payment.
20. Force Majeure
P4 will not be in default or breach of any dealing with the Customer as a result of Force Majeure (ie: anything beyond P4’s reasonable control).
21. Intellectual Property
(a) If P4 utilises any design, patent or intellectual property or follows any instruction provided by or on behalf of the Customer, the Customer indemnifies P4 against any claim, proceeding, damages or liability for any loss, cost or expense arising as a result whether for any alleged infringement of any intellectual property or otherwise.
(b) The Customer may not advertise, use or represent any intellectual property of P4 or of any goods themselves in any way without the prior written consent of P4.
(c) If the Customer breaches or permits any breach of this clause, it acknowledges P4 may suffer claims by third parties as a result (eg: by manufacturer's whose images are reproduced without authority and/or by parties who are entitled to exploit any intellectual property).
(d) All intellectual property rights remain with P4 unless other agreed in writing by P4.
(a) Any illustration, drawing or specification supplied (including on its website) by P4 (“Specs”) are drafts and approximates.
(b) Any tangible or intellectual property rights in Specs shall remain the property of P4 and may be recalled at any time.
(c) Specs are to be treated at all times as confidential and not made use of without the prior written consent of P4.
23. Set-off or Counter Claim
No Set-off, retention or Counter Claim will be made or applied by the Customer until payment in full of all bona fide invoices raised by P4 (whether current or overdue) and this clause may be pleaded as a bar to any action taken prior to such payment in full.
24. Stock Discretion
P4 has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance.
25. Partial Delivery/Forward Orders
If the Customer places forward orders or requests partial or instalment delivery, the Customer agrees:
(a) to pay for so much of any order as is from time to time delivered by P4; and
(b) that no delay or failure to fulfil any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment.
The Customer indemnifies P4 against any claim or loss arising from or related in any way to any contract or dealing between P4 and the Customer or anything arising therefrom or arising as a result of or subsequent to any breach of these Terms.
(a) If the Customer commits or is involved in any act of insolvency, it will be deemed in default under these terms.
(b) An act of insolvency includes bankruptcy, liquidation, receivership, administration or the like and failure to pay in accordance with these Terms.
Export of any goods are governed by these Terms and all international trade conventions and/or terms are expressly excluded.