1. Application of Terms and Conditions
1.1 These terms and conditions of sale apply to and govern all quotations submitted by, all orders placed with, and all contracts entered into by Shaw Contract Group Australia Pty Ltd (“Shaw”) whereby goods or services are supplied, provided and/or delivered (“supply” or “supplied”) by Shaw (“Agreement”).
1.2 To the extent that any conflict exists between these terms and conditions of sale (or as they may be varied in accordance with clause 22) and any other documentation or correspondence forming part of any Agreement, these terms and conditions of sale (or as they may be varied in accordance with clause 22) shall be paramount and prevail.
1.3 Any order or offer made by any Customer shall not be binding on Shaw until accepted by Shaw in writing or in such manner as Shaw in its sole discretion determines.
1.4 To the extent that there is any inconsistency existing between any terms and conditions appearing in a Customer’s order and these terms and conditions of sale then these terms and conditions shall only apply and the acceptance by a Customer of the supply by Shaw of Goods the subject of such an order shall constitute an acceptance by the Customer of the supply by Shaw of such Goods solely on these terms and conditions of sale.
1.5 These terms and conditions of sale replace in their entirety any previous terms and conditions of sale published, issued or used by Shaw.
2. Definitions and Interpretations
2.1 In the interpretation of these terms and conditions:
2.1.1 words importing the singular will include the plural and vice versa;
2.1.2 words importing any one gender will include other genders;
2.1.3 words importing natural persons will include corporations, firms, government departments, statutory authorities, and other entities recognised by law and vice versa;
2.1.4 all references in these terms and conditions to any statutory enactment or law will mean and be construed as references to that enactment or law as amended or modified or re-enacted from time to time and to the corresponding provisions of any similar enactment or law of any relevant jurisdiction;
2.1.5 if more than one person is named and described as the Customer the obligations of those persons pursuant to these terms and conditions will be joint and several.
3.1 A quotation submitted by Shaw may at any time prior to acceptance of an offer by Shaw in respect of the supply of Goods be varied or withdrawn by Shaw. Clerical, typing or other errors made in or in respect of, any quotation shall be subject to correction by Shaw and the corrected quotation shall apply.
3.2 Subject to clause 3.1, and unless otherwise specified by Shaw, a quotation submitted by Shaw shall remain valid for 30 days from the date of such quotation.
4.1 The prices quoted by Shaw for the supply of Goods include, as appropriate but subject to clause 7, the cost of transport to the agreed place of delivery.
4.2 Unless expressly stipulated by Shaw to be a firm price, the quoted price is subject to variation to take account of variances in wages, materials or other costs since the date of the order and, in the event of such variation, Shaw may adjust the quoted price, to the extent of such variation, and the revised price will be payable as if it were the original quoted price.
4.3 The prices quoted by Shaw shall only apply to the specific Goods and quantities of Goods specified in such quotation or accepted order.
4.4 Unless otherwise stipulated all references to dollars are references to the lawful currency of Australia.
5. Payment for Goods
5.1 The Customer shall be invoiced at the time of dispatch of the Goods as stated in Shaw’s quotation from time to time or as Shaw in its sole discretion considers appropriate.
5.2 Unless otherwise specified on any invoice issued by Shaw, payment of the price specified on the invoice (‘Price’) will be made in full by the Customer to Shaw within 30 days commencing on the last day of the month in which the invoice is dated. (‘Payment Date’)
5.3 If the quoted or revised price is not paid in full pursuant of clause 5.2, the Customer will pay Shaw on demand interest computed on the unpaid amount of the Price calculated from the date of delivery of the Goods to the date on which the quoted or revised price is paid in full at the rate of 1.25% per month. Payments received by Shaw shall be credited first against any interest accrued.
5.4 The Customer shall not (nor shall it be entitled to) set off or deduct from any amount payable to Shaw under any Agreement, any amounts payable by Shaw to the Customer under these terms and conditions of sale or any Agreement.
6. Delivery of Goods
6.1 Unless otherwise agreed, where the Customer has nominated in writing an address to Shaw (“the nominated address”), Shaw shall deliver the Goods to the nominated address.
6.2 Subject to clause 6.3, Shaw will use reasonable endeavours to deliver the Goods to the Customer on or before the delivery date specified on the order (if any) but otherwise as notified by Shaw to the Customer (‘Delivery Date’).
6.3 If Shaw is unable by reason of industrial dispute or by reason of shortages of material or labour, shipping delays, war, riot, act of God or by any other case whatsoever beyond the reasonable control of Shaw (‘Force Majeure Event’), to deliver the Goods to the Customer on or before the Delivery Date, then Shaw will have the option: to deliver the Goods to the Customer after cessation of any Force Majeure Event and in this case these terms and conditions will have full force and effect as though the Goods had been delivered on or before the Delivery Date; or without prejudice to its other rights, to rescind these terms and conditions and in this case the Customer will have no recourse, claims or actions whatsoever against Shaw except for a refund of any part of the price paid in respect of the Goods.
6.4 The Customer acknowledges that Shaw does not warrant or represent that the Goods will be delivered on the Delivery Date, and failure to deliver by the Delivery Date will not avoid or give the Customer the right to avoid any contract or Agreement or render Shaw liable in any way for any direct or consequential loss arising from such failure and that Shaw is at liberty to make deliveries within a reasonable period before or after the Delivery Date.
6.5 The Customer agrees that if it fails or refuses to take delivery of the Goods on or before the Delivery Date or within 24 hours of the Delivery Date; then all monies paid to Shaw will be forfeited to Shaw and Shaw may (without prejudice to its other rights) terminate the contract or Agreement and resell any goods the subject of the contract or Agreement or store the Goods at the risk and expense of the Customer.
6.6 Shaw may supply goods in instalments and these terms and conditions of sale shall apply to each supply of Goods by instalments as if each instalment constituted supply under a separate Agreement and in particular the Customer shall pay Shaw for each instalment of Goods so supplied irrespective of any failure or delay in the supply of any other instalment of Goods.
7.1 Where the order refers to a request to Shaw to arrange for transportation of the Goods then, unless otherwise stated by Shaw in writing, delivery of the Goods in the metropolitan area of the capital cities in each state will be on a FIS basis and delivery of the Goods outside these areas will be on a FOB basis.
7.2 Where Shaw arranges transportation of the Goods by an independent carrier Shaw will have the absolute discretion as to the appointment of the independent carrier.
7.3 Where the Goods are transported by the employees, servants or agents of a contractor engaged by or on behalf of Shaw, the Goods will be deemed to be delivered when they leave premises of Shaw and will thereafter be at the risk of the Customer.
8. Limitation of Claims by Customer
8.1 The Customer acknowledges that the Customer has not, in acquiring the Goods for any particular purpose, relied upon the skill, judgement or recommendation of Shaw or any of its servants or agents. The Customer agrees to inspect the Goods thoroughly within 2 days after the Goods are delivered by Shaw to the Customer.
8.2 Any claims by the Customer in respect of the Goods must be notified in writing by the Customer to Shaw within 7 days after the Goods are delivered, and if not notified, the Customer forever releases and discharges Shaw from all actions, suits, charges, claims and demands relating directly or indirectly to the purchase by the Customer from Shaw of the Goods.
8.3 Claims will be considered for manufacturing defects only. Claims will not be considered for missing tufts (other than on the basis of reinserting such missing tufts), pile crushing (except on products which carry a Shaw warranty against crushing), pile shading or watermarking of cut pile products, texture or colour variation from sample of Berber products, piling, fuzzing or soiling. The Customer will make the consumer aware of the possibility of shading or watermarking of a cut pile product and the possibility of piling, fuzzing and colour texture variation from sample of Berber goods.
8.4 Colour and/or texture may vary slightly from dye lot to dye lot. Claims will not be considered for colour or texture variations from dye lot to dye lot within accepted commercial tolerances. Claims will not be considered for side match of carpet from different dye lots.
8.5 Claims will not be considered for goods sold as second quality, irregular or at a substantial discount from list. No Shaw warranties are applicable to such products.
8.6 Upon receipt of any complaint in respect of the Goods, the Customer will examine the Goods and provide a report to Shaw setting out the nature of the complaint and the Customer’s assessment of the complaint before Shaw inspects and examines the Goods.
8.7 In the case of the replacement of Goods more than 12 months old, a usage factor of 20% per year will be deducted.
9. Cancellations and Return of Goods
9.1 No order may be cancelled or locally stocked Goods (“Standard Goods”) returned to Shaw unless done so in accordance with written agreement between the Customer and Shaw.
9.2 No Standard Goods shall be accepted for return until the Customer obtains a Return Goods Authorisation Number from Shaw.
9.3 Orders for Standard Goods may be cancelled provided that Shaw receives proper written notice from the Customer and approves the cancellation prior to dispatching the Standard Goods.
9.4 Indent orders orders for non-Standard Goods and orders where the Goods are cut, altered or prepared at the request of the Customer (“Special Goods”) may not be cancelled or returned at any time.
9.5 In all cases the final judgment as to whether a claim for a refund should be allowed rests with the Managing Director of Shaw or any person nominated in writing by the Managing Director of Shaw.
9.6 All Standard Goods returned due to refused, or cancelled orders, as well as all other Shaw authorised accommodation returns, are subject to Shaw’s applicable restocking fee plus freight charges for delivery and return.
9.7 Title in returned Standard Goods will pass when Shaw takes possession of the returned Goods and verifies the returned Goods with an approved Return Goods Authorisation.
Claims for roll shortages will only be considered on uncut rolls. If the Customer commences cutting the Goods before Shaw has had a chance to assess the claimed shortage, Shaw will not consider any allowance for claimed shortage.
11. Liability and Indemnity
11.1 Shaw acknowledges that under applicable State, Territory and Commonwealth Laws including in particular the Goods Act (Vic) 1958 and the Competition and Consumer Act (Cth) 2010, certain conditions and warranties may be implied into this contract and rights may be conferred upon the Customer which cannot be excluded, restricted or modified. Nothing in this contract whether express or implied, will be taken to exclude, restrict or modify any such non-excludable conditions, warranties or rights
11.2 Subject to clause 11.1, the Customer acknowledges and expressly agrees with Shaw:
11.2.1 That the Customer is satisfied that the Goods are fit for purpose for which they were purchased; and
11.2.2 That any implied warranty or condition whether statutory or otherwise and whether as to quality, condition or fitness for any particular purpose is expressly excluded from these terms and conditions to the full extent permitted by law.
11.3 The Customer agrees and acknowledges that Shaw to the full extent permitted by law accepts no liability or responsibility arising from any direct or consequential loss, damage or expense of any kind or nature and the Customer releases and forever discharges Shaw from all such responsibilities and liabilities and any claims, demands or causes of action in respect thereof.
11.4 The Customer will, to the full extent permitted by law indemnify and keep indemnified Shaw against all actions, proceedings, claims or demands for loss or damage of whatsoever nature made or threatened against Shaw by any third party or by any of the Customer’s employees, agents or contractors arising directly or indirectly out of or in respect of the use, custody or purchase and supply of the Goods.
11.5 If Shaw accepts liability for a claim or is held liable by a court of competent jurisdiction for a breach of condition or warranty implied by statute and not negatived pursuant to these terms and condition, any liability for such breach will be limited at Shaw’s option to replacement of the Goods or the supply of equivalent Goods, and/or repair or restoration of the Goods, and/or the payment of the value of the Goods or of replacing the Goods or of acquiring equivalent Goods, and/or the payment of the costs of having the Goods repaired or restored.
12. Retention of Ownership
12.1 Until the Customer has paid the quoted or revised price and any moneys outstanding pursuant to this Agreement or any other contract between Shaw and the Customer in full, all Goods supplied pursuant to this Agreement or any other contract between Shaw and the Customer will remain the property of Shaw.
12.2 Notwithstanding clause 12.1 the risk of loss or damage to the Goods will pass to the Customer from the time of delivery to the Customer or its agent or the nominated address and the Customer or its agent will keep the Goods properly insured for their insurable value until all moneys whatsoever owing by the Customer to Shaw have been paid in full. All policies of insurance will be effected in the joint names of the Customer and Shaw for their respective rights in respect of loss or damage to the Goods and policies of insurance will apply equally to Shaw and to the Customer as if each were separately insured under any such policy of insurance.
12.3 Until all moneys owing to Shaw by the Customer have been paid in full or for all Goods supplied to the Customer under this Agreement or any other contract and until the Customer has satisfied any other debts owing to Shaw, the Customer will hold any Goods delivered to it as fiduciary agent and bailee for Shaw pending such payment and will ensure that all Goods supplied to the Customer by Shaw are stored separately from all other goods which may be in the Customer’s possession, and that all Goods supplied to the Customer by Shaw are stored and will comply with all reasonable directions given by Shaw and/or its representatives to ensure compliance with the requirements of this clause.
12.4 The Customer agrees with Shaw that they shall treat the security interest in the Goods as a continuing and subsisting security with priority over a registered general security and any unsecured creditors despite the fact of the Goods having become fixtures at any time before payment has been made for them.
12.5 Until all monies due for all Goods supplied to the Customer by Shaw are paid, Shaw authorises the Customer to sell Goods to a third party as a fiduciary agent of Shaw. The Customer will, however, not represent to a third party that is in any way acting for Shaw and Shaw will not be bound by any contract with third parties made by the Customer.
12.6 If the Customer sells the Goods to a third party and receives payment before the Payment Date, the Customer will account to Shaw for the quoted or revised price of the Goods immediately after the Goods are on-sold and the proceeds of sale received, even though the quoted or revised price may not be due and payable. To facilitate such payment, the proceeds will be paid into a separate and identifiable bank account and the Customer will account to Shaw from this account for moneys due for the supply of the Goods.
12.7 If the Customer sells any of the Goods before title in and to the Goods has passed in accordance with clause 12.1, the Customer will hold such part of the book debts (being monies due to the Customer by third parties on account of such sales)(‘Book Debts’) as relates to the Price of the Goods sold on trust for Shaw and will account for such part of the Book Debts separately in its accounts in a manner which clearly identifies such part of the Book Debts as trust assets held on trust for and on behalf of Shaw.
12.8 The Customer agrees that it will not enter into a forward sale contract with any third party in respect of the Goods.
12.9 The Customer agrees that it will not assign or factor the Book Debts.
12.10 If the Customer fails to pay for the Goods by the Payment Date or if the Customer commits an act of bankruptcy or has a receiver or a receiver and manager appointed over any of its assets or goes into liquidation (including provisional liquidation) or any similar event occurs, then, without prejudice to any other rights of Shaw, Shaw will be entitled to enter upon any premises where the Goods for which full payment has not been made are stored and to retake possession of such Goods. Shaw will then be entitled to resell such Goods to a third party, and the Customer will indemnify Shaw from and against, and will pay on demand to Shaw all loss, damage, costs or expenses incurred by Shaw in respect of such possession and resale of the Goods or any of them.
12.11To the extent that the terms of this clause create a charge registrable by Shaw over the Goods, the Customer appoints Shaw as its agent to register that charge on behalf of Shaw at any time and to do all acts necessary to procure an extension of the relevant period for such registration pursuant to Section 263(1) of the Corporations Act 2001 (‘relevant period’), including, without limitation, making an application to the court pursuant to Section 266(4) of the Corporations Act 2001 for an extension of the relevant period.
13. Personal Properties Securities Act (“PPSA”)
13.1 For the purposes of this clause 13 “Goods” means the goods supplied or to be supplied to the Customer pursuant to a Customer’s accepted order.
13.2 In consideration of Shaw supplying the Goods to the Customer, at the request of the Customer, the Customer, by adopting or accepting these terms and conditions:
13.2.1 Grants to Shaw a purchase money security interest (“PMSI”) as defined by the PPSA in the Goods; and
13.2.2 Agrees that any of the Goods or proceeds of sale of the Goods coming into existence after the date of these terms and conditions will come into existence subject to the PMSI granted herein and the terms of these terms and conditions without the need for any further action or agreement by any party; and
13.2.3 Acknowledges that the Customer has received valuable consideration from Shaw and agrees that it is sufficient; and
13.2.4 Agrees that the PMSI has attached to all Goods supplied now or in the future to the Customer and that the attachment of the PMSI has in no way been deferred or postponed from the date recorded herein.
13.3 Shaw reserves the right to register a financing statement in respect of any Goods supplied by Shaw to the Customer pursuant to these terms and conditions and in respect of which credit has been extended by Shaw to the Customer. The costs of registering a financing statement or a financing change statement shall be paid by the Customer and may, where applicable, be debited against the Customer’s credit account with Shaw.
13.4 The Customer waives their right to receive a copy of the verification statement confirming registration of a financing statement, or a financing change statement relating to the security interest under these terms and conditions.
13.5 The Customer shall promptly, on request by Shaw execute all documents and do anything else reasonably required by Shaw to ensure that the PMSI created by these terms and conditions constitutes a perfected security interest over all Goods supplied.
13.6 The Customer shall not agree to allow any person to register a financing statement over any of the Goods supplied by Shaw without the prior written consent of Shaw and will immediately notify Shaw if the Customer becomes aware of any person taking steps to register a financing statement in relation to such Goods.
13.7 The customer shall not allow the Goods to become accessions or commingled with other goods unless Shaw has first perfected any security interest that Shaw has in relation to the Goods.
13.8 If Shaw perfects any security interest that Shaw has in relation to the Goods, the Customer shall not do anything that results in Shaw having less than the security or priority granted by the PPSA that Shaw assumed at the time of that perfection.
13.9 The Customer irrevocably grants to Shaw the right to enter upon the customer’s property or premises, without notice, and without being in any way liable to the customer or to any third party, if Shaw has cause to exercise any of Shaw’s rights under section 128 of the PPSA, and the Customer shall indemnify Shaw from any claims made by any third party as a result of such exercise.
14.1 Shaw may terminate any Agreement without notice if the Customer:
14.1.1 is in breach of any term of the Agreement and fails to remedy the breach within 14 days of receiving notice in writing by Shaw specifying the breach and requiring the Customer to remedy it;
14.1.2 has failed or refused to take delivery of Goods the subject of the Agreement and such failure or refusal continues for a period of 24 hours after Shaw has notified the Customer that the Goods are ready for delivery or dispatch, as the case may be and such failure or refusal continues for a period of 24 hours after Shaw has notified the Customer that it is ready, willing and able to supply the Goods; or
14.1.3 is declared bankrupt, resolves to go into liquidation or has a petition for bankruptcy or winding up presented against it or enters into a scheme of arrangement with its creditors or if any liquidator, provisional liquidator, administrator, receiver, receiver and manager or official manager is appointed in respect of the Customer or if anything analogous occurs in respect of the Customer.
14.2 In the event of termination Shaw shall, after taking into account payments made by the Customer to Shaw, be entitled to be paid by the Customer for work done and expenditure made under the Agreement up to and including the date of termination and any direct and indirect loss suffered by Shaw including without limitation Shaw’s loss of profit on the Agreement and the legal costs of Shaw (on a full indemnity basis) incurred in relation to the termination and any prior breach and in exercising any rights and remedies as a consequence of the termination and any prior breach.
14.3 Termination of the Agreement pursuant to this clause 14 shall be without prejudice to the rights of Shaw accruing up to the date of termination.
15. Shaw’s obligations
Notwithstanding any other provision of these terms and conditions of sale, if the Customer breaches a term of an Agreement Shaw shall not be bound to perform its obligations under that Agreement until the breach is remedied by the Customer.
16. Goods and Services Tax
16.1 For the purposes of this clause 16:
‘Price Payment’ means any payment of the Price (whether quoted or revised pursuant to clause 4.2) or other amount payable by the Customer to Shaw under these terms and conditions in respect of or in connection with any Supply made or provided by Shaw which is Taxable Supply, but does not include any payment under clause 16.3;
‘GST Act’ means the A New Tax System (Goods and Services Tax) Act 1999;
‘GST Rate’ means the GST rate from time to time provided for in the A New Tax System (Goods and Services Tax Imposition – General) Act 1999, and
The terms ‘Consideration’, ‘GST’, ‘GST Law’, ‘Input Tax Credit’, ‘Taxable Supply’, ‘Tax Invoice’ and ‘Tax Period’ have the meaning given by section 195-1 of the GST Act.
16.2 Any Price Payment is exclusive of GST
16.3 In addition to each Price Payment, the Customer must pay to Shaw an amount equal to each Price Payment multiplied by the GST Rate, such additional amount to be paid at the same time and in the same manner as the Customer is required to pay the relevant Price Payment.
16.4 Shaw must provide a valid Tax Invoice (or any other documentation enabling Input Tax Credits to be claimed by the Customer) to the Customer no later than seven (7) days after the occurrence of any event that causes the GST liability of Shaw on any Taxable Supply made to the Customer under these terms and conditions to be attributed to a particular Tax Period.
Any samples, books or other materials supplied free of charge to the Customer by Shaw remain the property of Shaw and must be returned to Shaw at the request of Shaw.
18. Damage to the Sub Floor
Shaw does not accept any liability for any damage arising from the breakdown, movement or fault of any kind whatsoever in the sub-floor from excessive moisture or from any other cause not directly resulting from the manufacture of the Goods.
19. Technical Improvements
Shaw reserves the right to make technical and other improvements to the Goods without prior notice.
Any waiver or purported or implied waiver by Shaw of strict compliance with these terms and conditions of sale shall not be deemed a waiver unless it is in writing and signed by the Managing Director of Shaw or any person nominated in writing by the Managing Director of Shaw and shall not prejudice the rights of Shaw in respect of any breach of these terms and conditions of sale to which such waiver does not specifically relate.
If any provision of these terms and conditions is or is found to be invalid or unenforceable, that invalidity or unenforceability will not affect the validity or enforceability of the other provisions of these terms and conditions and these other provisions will remain in full force and effect.
22. Whole Understanding
These terms and conditions contain the entire agreement and understanding between Shaw and the Customer and the contract arising therefrom will not be amended, varied or waived unless such amendment, variation or waiver is in writing signed by the Customer and by the Managing Director of Shaw or any person nominated in writing by the Managing Director of Shaw to sign such amendment, variation or waiver on behalf of Shaw.
Clauses 8, 9, 10, 11, 12, 24 and 25 shall not merge but survive completion of the Agreement.
24. Governing Law
These terms and conditions will be governed by and construed in accordance with the law in force in Victoria and the Customer and Shaw agree to submit to the jurisdiction of the Victorian courts in respect of any dispute arising in connection with this Agreement.
25. Confidential Information
The Customer agrees to receive and hold Confidential Information of Shaw in trust and in strictest confidence and shall not use, reproduce, disclose or otherwise disseminate any Confidential Information except as necessary to perform its obligations hereunder. Disclosures of the Confidential Information may be made only to the Customers employees and agents who have specific need to know and are subject to confidentiality restrictions at least as restrictive as those contained herein. “Confidential Information” means confidential information relating to the business, products and services of Shaw, which is or has been disclosed to the Customer, and which has value to Shaw and is not generally known to Shaw’s competitors, including (without limitation), information regarding product specifications and product plans, designs, costs, prices, finances, marketing plans, business opportunities, personnel, R&D activities and know-how.