Terms of Sale

Studco Building Systems Australia Terms and Conditions 

 

1 Terms

1.1 The whole of the Agreement between Studco Australia Pty Ltd ABN 39 145 053 925 (Studco) and the Applicant referred to in the Credit Application (Customer) are those set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (Terms). These Terms include all those statutory rights conferred on the Customer which Studco is not capable of excluding, restricting or modifying, including statutory rights conferred on the Customer under the ACL.

1.2 Subject to the ACL, Studco and the Customer acknowledge and agree that these Terms take precedence over all other conditions of supply, and applies to the exclusion of all other documents, prior discussions, representations, understandings and arrangements (written or oral, express or implied) and other representations (contractual or otherwise), whether or not endorsed or delivered with or referred to in any order or other documents delivered by the Customer to Studco.

2 Credit Terms

2.1 Payment is to be made within 30 days following the month in which the invoice is rendered in respect of the supply of the relevant Goods unless otherwise agreed in writing by Studco.

2.2 Without prejudice to any other rights or remedies of Studco, if the Customer fails to make (whether in full or part) any payment required under these Terms on or before the due date for payment, Studco may charge interest on any unpaid amount at a rate equivalent to the rate of interest for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983. Such interest will accrue from the date payment was due to the date payment is made, will be calculated daily and capitalised monthly and must be paid by the Customer upon demand by Studco.

2.3 Studco’s approval for extending credit to the Customer may be revoked or placed on temporary hold by Studco on prior written notice to the Customer where Studco determines, acting reasonably, that the Customer presents a credit risk. Such a determination may be made as a consequence of the Customer’s conduct, or where Studco is informed that there could be a credit risk from industry sources or its insurer. The Customer will then be required to pay on delivery, unless Studco reinstates the Customer’s credit or removes the temporary hold in its discretion. Such discretion may be exercised where the Customer has provided evidence to Studco’s reasonable satisfaction that it will be able to meet payment requirements in the future.

2.4 Studco is entitled to set-off against any money owing to the Customer amounts owed to Studco by the Customer excluding any invoices which the Customer has raised a dispute over.

2.5 Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 2.5, and then to the outstanding invoices.

2.6 If Studco takes reasonable steps or actions to recover any amount due to it, the Customer will be responsible for all Loss incurred by Studco in recovering the monies due.

2.7 Any Customer with outstanding invoices will be precluded from participating in any special deals, discounts, bonus payments, redemptions, rebates and all other incentive programs until all outstanding invoices plus interest and costs (as required under these Terms) are paid in full.

2.8 The Customer agrees that any payments to be made to the Customer by Studco in respect of any special incentives referred to in Clause 7 are to be paid by credit note applied to the invoice for the relevant invoice period.

3 Quotations and Pricing

3.1 Each order placed by the Customer will constitute an offer by the Customer to acquire the Goods from Studco on and subject to these Terms and may be accepted or rejected by Studco. The Customer will be informed in writing whether an order has been accepted by Studco or not and no order will be binding on the parties until accepted by Studco.

3.2 Studco may make an order conditional upon Studco receiving a satisfactory credit assessment of the Customer.

3.3 The price of the Goods will be Studco’s quoted price and will be binding on Studco for the period stated on the quotation, excluding special offers or discounts (which will only apply for the special offer or discount period) , and may be accepted by the Customer by written notice to Studco at any time within those 30 days (unless the quote is earlier revoked by Studco).

3.4 Any quotation by Studco shall not constitute an offer. Quotations will remain valid for thirty 30 days from the date of the quotation.

3.5 Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature will be binding upon the person affixing that signature.

3.6 Unless otherwise specified by Studco, the Price is in Australian dollars and excludes any statutory tax, including duty or impost levied in respect of the Goods greater than that allowed for by Studco in calculating the Price, currency fluctuations, costs and charges in relation to insurance, packing, crating, delivery (whether by road, rail, ship or air) and export of the Goods, which if applicable or required will be at the Customers cost and expense.

3.7 The contract between Studco and the Customer shall not be affected by any impositions or alterations of customs duties or by decisions of Australian Customs with regard to either classification or value of duty or landing charges occasioned thereby. The Customer acknowledges and agrees that any such impositions shall be to the account of the Customer.

4 Delivery and Supply

4.1 Studco will use all commercially reasonable efforts to deliver the Goods for which it has accepted an order by the date (if any) specified in the order and in the absence of any date, within a reasonable time.

4.2 Studco may, on written notice to the Customer, cancel an order or suspend delivery in circumstances where Studco determines, acting reasonably, that the Customer presents a credit risk, or where the Customer is in default on any payment owing to Studco.

4.3 The failure of Studco to deliver the Goods by the date specified in the order does not entitle either party to treat an order or the Contract as repudiated.

4.4 If the Customer directs that delivery of the Goods be staggered over different times or to different addresses from those specified in the Credit Application, then the Customer shall be liable for any additional cost, charge and expense incurred by Studco in complying with the Customer’s direction and shall pay for the whole of the invoiced value of the Goods by the due date notwithstanding the staggered deliveries over different times.

4.5 Carrying out staggered deliveries over different times or to different addresses shall be deemed to be delivery to the Customer.

4.6 The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer’s premises or when Studco notifies the Customer that the Goods are available for collection.

4.7 If the Customer is unable or fails to accept delivery of the Goods, Studco may deliver it to a place of storage nominated by the Customer and, failing such nomination, to a place reasonably determined by Studco. Such action shall be deemed to be delivery to the Customer. The Customer shall be liable for all reasonable cost, charge and expense incurred by Studco on account of storage, detention, double cartage/ delivery or similar costs.

4.8 The Customer agrees that it will be obliged to and shall pay for the Goods in accordance with the Credit Terms notwithstanding that the Goods may not yet be delivered.

5 Title and Risk 

5.1 Risk in the Goods passes to the Customer upon the Goods being signed for by the Customer at the delivery location or upon pick up from Studco’s premises (as applicable).

5.2 Title to the Goods passes to the Customer on payment in full of the Price for the Goods and all other amounts payable by the Customer to Studco at the time on any account whatsoever as specified in these Terms.

5.3 Until full payment in cleared funds is received by Studco for all Goods supplied by it to the Customer, the Customer must, at its own cost, insure and keep insured the Goods against such risks as a prudent owner of the Goods would insure at their full cost price, with a reputable insurance company.

5.4 Until full payment in cleared funds is received by Studco for all Goods supplied by it to the Customer, as well as all other amounts payable by the Customer in accordance with these Terms:

5.4.1 legal title and property in all Goods supplied under the Contract remain vested in Studco and do not pass to the Customer;

5.4.2 subject to clause 4.3 below, the Customer must keep the Goods separate from other goods and maintain the labelling and packaging of Studco so that they are readily identifiable as the property of Studco;

5.4.3 the Customer must not sell the Goods except in the ordinary course of the Customer’s business and must not sell the Goods at all where the Customer suffers an Insolvency Event;

5.4.4 the Customer must maintain adequate records of those Goods that are owned by Studco and if they are sold or disposed of, to whom they are sold or disposed to and any payments made by those persons for those Goods;

5.4.5 the Customer acknowledges and warrants Studco has a security interest (for the purposes of the PPSA) in the Goods until title passes to the Customer in accordance with this clause. The Customer must do anything reasonably required by Studco to enable Studco to register its security interest, with the priority Studco requires and to maintain that registration; and

5.4.6 the security interest arising under this clause attaches to the Goods when the Customer obtains possession of the Goods and the parties confirm that they have not agreed that any security interest arising under this clause attaches at any later time.

5.5 At all times, Studco retains the right of possession of any pallets and bearers used for delivery of the Goods and the Customer agrees to indemnify Studco in respect of any pallets or bearers not returned to Studco in good order and condition (as determined by Studco, acting reasonably) within fourteen (14) days of delivery of the Goods.

6 Force Majeure

6.1 In this clause, Force Majeure means an act of God, fire, storm, flood; war, revolution or any other unlawful act against public order or authority; an industrial dispute including strike or other labour disturbances (including labour shortage); a governmental restraint; a pandemic or epidemic; a shortage or unavailability of raw materials, production capacity or transportation; theft, vandalism; and any other event not within the reasonable control of either party that impacts on a party’s ability to carry out their obligations under the Contract.

6.2 Where Force Majeure prevents or delays a party from performing any obligation under the Contract (other than an obligation to pay money), the requirement to perform that obligation is suspended as long as the Force Majeure continues.

6.3 Where a Force Majeure persists for more than one month, the parties may agree to terminate the Contract.

7 Personal Property Security Interest

7.1 Words used in this clause that are not defined have the same meaning as given to them in the PPS Act.

7.2 If at any time Studco determines that the Contract creates a security interest in its favour over any personal property, Studco may apply for registration, or give notification, in connection with that security interest and the Customer must promptly, upon Studco’s request, do anything (including signing, completing and producing documents, obtaining consents and supplying information) to:

7.2.1 provide effective security over the relevant personal property;

7.2.2 ensure that any such security interest in favour of Studco:

  • is at all times enforceable, perfected (including, where applicable, by control as well as by registration) and otherwise effective; and
  • ranks as a first priority security interest;

7.2.3 enable Studco to prepare and register a financing statement or a financing change statement or give any notification in connection with that security interest; and

7.2.4 enable Studco to exercise any of its rights or perform any of its obligations in connection with any such security interest or under the PPS Act.

7.3 All costs and expenses arising as a result of actions taken by the Customer will be for the account of the Customer.

7.4 If Chapter 4 of the PPS Act would otherwise apply to the enforcement of the security interest created under the Contract, the Customer agrees that the following sections of the PPS Act will not apply 95, 121(4), 125, 130, 132(3)(d), 132(4), 142 and 143.

7.5 Unless excluded, Studco does not need to give the Customer any notice required under the PPS Act (including a notice of a verification statement under section 157 of the PPS Act).

7.6 Neither party will disclose to a person or entity that is not a party to the Contract information of the kind mentioned in section 275(1) of the PPS Act unless section 275(7) of the PPS Act applies.

8 Availability of Stock

Any order that cannot be fulfilled on its receipt will automatically be back ordered with the Customer notified by phone, email or SMS of the back ordered items.  The back ordered Goods will be processed when Goods becomes available. Goods will not be back ordered where it is the Customer’s stated standard policy not to accept back orders, the Customer notifies Studco within 2 Business Days of receipt of notice under this clause that it does not wish to accept Goods on back order, or the Customer specifically marks its order, “Do Not Back Order”. Deliveries at any time are subject to availability of stock and Studco will not be liable for any charges due to product unavailability.

9 Freight

Subject to Clause 3.6 and unless otherwise agreed, Studco will ship by the route and carrier outlined in its product catalogue. If the Customer requests a route with a higher charge than the route of Studco’s choice for shipment, Studco will advise the Customer of the additional charge and invoice the Customer the difference in shipping costs.

10 Change of mind returns 

10.1 This clause applies to change of mind returns only.

10.2 The Customer shall not return any Goods to Studco without obtaining prior written authorisation from Studco. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including product descriptions, quantity, date of return and the  Customer’s name and address must also be enclosed.

10.3 Freight charges must be paid by the Customer. All Goods must be returned in the original packaging and the Customer shall be responsible if the Goods are damaged during return shipment. A credit note will be issued by Studco only after Goods returned are either collected by Studco’s authorised representative or agent or returned to it by the Customer as set out above. The Customer shall not deduct the amount of any anticipated credit from any payment due to Studco until it has received a credit note.

10.4 All goods returned must be of merchantable and reasonable quality such that the Goods are complete in their original packaging, not shop-soiled, are not price ticketed and are still listed in the current price list.

10.5 If Studco accepts the return of any Goods for change of mind, Studco may charge the Customer twenty per cent (20%) of the invoice price as a handling fee with freight costs and risk remaining the responsibility of the customer.

11 Cancellation 

11.1 No cancellations or partial cancellation of an order by the Customer shall be accepted by Studco unless it has first consented in writing to such cancellation or partial cancellation. .A reasonable administration fee will be charged by Studco to the Customer for processing such cancellation.

11.2 Studco are unable to accept cancellation for Goods that are not regular stock, which are in the process of manufacture or ready for shipment.

12 Defective Goods 

12.1 Nothing in this clause is intended to derogate from the Customers rights in clause 14.

12.2 The Customer must, as soon as reasonably possible after delivery of the Goods and acting reasonably, check whether the Goods are Defective Goods when delivered and/or performed, and notify Studco promptly of the same.

12.3 If the Customer gives Studco notice under clause 2 that it believes, acting reasonably, that the Goods are Defective Goods, it must:

12.3.1 preserve the Goods in the state in which they were when the defect was discovered and allow Studco access to the Customer’s premises (or any location where the Goods are stored) to inspect the Goods; or

12.3.2 at Studco’s request, return the Goods, at the Customer’s cost within 5 Business Days after Studco requested the Goods be returned in the condition in which they were when the defect was discovered.

12.4 Where Studco determines (acting reasonably) that the Goods are in fact Defective Goods, Studco will, within a reasonable time, replace or refund the Customer for the Defective Goods. The Customer’s cost to return the Goods will be reimbursed by Studco where the Goods are determined by Studco to be Defective Goods.

13 ACL and Warranties 

13.1 The ACL provides Consumers with a number of rights under the Consumer Guarantees that cannot be excluded or limited. The limitations of liability set out in these Terms are therefore subject to, and will not apply to the extent that they limit or exclude, such Consumer Guarantees or any other rights the Customer may have under law (Non-Excludable Rights).

13.2 The Customer must:

13.2.1 promptly inform Studco of all complaints or claims relating to any of the Goods;

13.2.2 not admit liability on behalf of Studco in respect of any complaint or claim relating to any of the Goods;

13.2.3 not resolve or settle any complaint or claim relating to any of the Goods which may result in Studco incurring any liability (whether to a Customer or any other person); and

13.2.4 deal promptly with all complaints or claims relating to any of the Goods which will not result in Studco incurring any liability.

13.3 Subject to clauses 1 and 14.2 above, Studco’s liability for any Loss suffered or incurred by the Customer, howsoever caused, which arises out of or in connection with the supply of the Goods under the Contract in the case of Goods, is limited to:

13.3.1 the replacement of the Goods or the supply of equivalent goods;

13.3.2 the payment of the cost of replacing the Goods or of acquiring equivalent goods.

13.4 Studco’s liability in respect of a breach of or a failure to comply with an applicable Consumer Guarantee will not be limited in the way set out in clause 3above if:

13.4.1 the Goods supplied are goods or services “of a kind ordinarily acquired for personal, domestic or household use or consumption”, as that expression is used in section 64A of the ACL;

13.4.2 it is not “fair or reasonable” for Studco to rely on such limitation in accordance with section 64A(3) of the ACL; or

13.4.3 the relevant Consumer Guarantee is a guarantee pursuant to sections 51, 52 or 53 of the ACL.

13.5 Except only for those rights and remedies that the Customer has in respect of the Goods under the ACL which cannot be lawfully excluded, restricted or modified:

13.5.1 neither party will be liable for Consequential Loss;

13.5.2 all conditions, warranties and implied terms, whether statutory or otherwise, are excluded in relation to the Goods; and

13.5.3 each party’s liability for any Loss which the other party suffers, incurs or is liable for in connection with supply of the Goods under the Contract is limited to the Price paid or payable for those Goods, except in connection with death, personal injury, illness, property damage and fraud.

14 Credit Check 

14.1 The Customer authorises Studco to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency/body information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.

14.2 The Customer understands that information can be used for the purposes of assessing its application for credit, assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.

15 GST

15.1 Words or expressions used in this clause 16 that are defined in the GST Act have the same meaning given to them in that Act.

15.2 Unless otherwise stated, any amount specified in the Contract as the consideration payable for any taxable supply does not include any GST payable in respect of that supply.

15.3 The Supplier must provide the Customer with a valid tax invoice for the taxable supply and the Customer must also pay in addition to the taxable supply the amount of GST payable on that taxable supply.

16 Notification

16.1 The Customer must notify Studco in writing within seven (7) days of any alteration of the name or ownership of the Customer, the issue of any legal proceedings against the Customer or an Insolvency Event of the Customer.

16.2 Studco may alter these Terms and Conditions on 30 days’ prior written notice to the Customer and the altered terms shall then apply to orders placed by the Customer after such notice period has elapsed. The Customer accepts the altered Terms and Conditions by continuing to order Goods.

16.3 The Customer must give Studco not less than 14 days’ prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to changes in the Customer’s address, email, business practice, ownership and directors).

17 General

17.1 Both parties agree that service of any notices may be effected by email or post.

17.2 The Contract is governed by the laws of Victoria. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and courts entitled to hear appeals from those courts.

17.3 A reference to legislation includes any amendment to that legislation, any consolidation or replacement of it, and any subordinate legislation made under it.

17.4 In these Terms, the words “include”, “including”, “for example”, “such as” or any form of those words or similar expressions do not limit what else is included and must be construed as if they are followed by the words “without limitation” unless there is express wording to the contrary.

17.5 If a provision in these Terms is wholly or partly void, illegal or unenforceable in any relevant jurisdiction that provision or part must, to that extent, be treated as deleted from this agreement for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of these Terms.

17.6 If the Customer comprises more than one person the Contract binds each Customer jointly and severally and Studco is only required to give notices, quotes and other information, to one of the Customers (who undertakes to provide the notices, quotes and information to the other Customer or Customers).

17.7 A waiver of any right arising under the Contract must be in writing and signed by the party granting the waiver. Except as provided under clause 2, any variation of the Contract must be in writing and signed by the parties.

17.8 Studco and the Customer are independent contracting parties and nothing in the Contract makes either party the agent or legal representative of the other or grants either party any authority to assume or create an obligation on behalf of the other.

17.9 Without limiting or affecting the continued operation of any clause which as a matter of construction is intended to survive the termination of the Contract, clauses 2, 7, 8, 11, 13, 14, 16, 18 and 19 survive the termination of the Contract.

18 Definitions 

18.1 ACL means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the relevant State and Territory fair trading acts;

18.2 Consequential Loss means any loss, damage or costs incurred by a party or any other person that is indirect or consequential, as well as loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity;

18.3 Consumer has the meaning given to it in section 3 of the ACL;

18.4 Consumer Guarantee means any right or statutory guarantee under Division 1 of Part 3-2 of the ACL;

18.5 Contract means the contract of purchase of the Goods between Studco and the Customer which comprises the Terms and Credit Application and all orders for Goods placed by the Customer and accepted by Studco;

18.6 Defective Goods means Goods that are defective in design, performance or workmanship;

18.7 Insolvency Event means being in liquidation or provisional liquidation or under administration, having a controller (as defined in the Corporations Act) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, taking of any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event under the laws of any applicable jurisdiction;

18.8 Loss means any losses, liabilities, damages, costs, interest, charges, fines, penalties or expenses (including lawyer’s fees and expenses on a full indemnity basis) whether direct, indirect, special, or otherwise, but does not include Consequential Loss;

18.9 PPS Act means the Personal Property Securities Act 2009 (Cth)

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