Tasman Glass Terms and Conditions for the supply of Goods

1. Definitions

1.1. Australian Consumer Law means schedule 2 of the Competition and Consumer Act 2010 (Cth).

1.2. Business Day means a day that is not a weekend, public or bank holiday in Queensland.

1.3. Consequential Loss means any loss or damage which is indirect, consequential, special, punitive, exemplary or incidental, including any loss of profit, revenue, anticipated savings or business opportunity, loss or damage to goodwill or reputation however caused or arising as a result of this Agreement.

1.4. Customer means the person/s or any person acting on behalf of and with authority of the person requesting Tasman to provide the Goods as specified in the Purchase Order.

1.5. Goods means all goods or services supplied by Tasman to the Customer at the Customer’s request from time to time.

1.6. Loss means any loss, liability, claim, damage, expense, charge, payment of cost of any kind (including all legal and other professional cost and interest where applicable), judgment or order however caused or arising as a result of this Agreement.

1.7. Purchase Order means any proposal, quotation, order invoice or other documentation detailing the Goods and Price.

1.8. Price means the price payable for the Goods as:

1. (a) agreed between Tasman and the Customer; and
2. (b) specified in the Purchase Order.

 

1.9. Tasman means Tasman Glass Pty Ltd (ABN 67 075 773 833) or any person acting on behalf of and with the authority of Geoffrey Graham Gray.

1.10. Warranty Period means a period of 12 months commencing on the date the Goods are delivered to the Customer (in accordance with clause 6.3).

2. This Agreement

2.1. This Agreement sets out the terms under which Tasman will provide the Goods (as applicable) to the Customer and comprises of:

1. (a) these terms and conditions for the sale of Goods; and
2. (b) any Purchase Order signed by the parties;

 

2.2. The Customer will be deemed to have accepted these terms upon the signing of any Purchase Order, accepts Tasman’s Goods, or makes payment for the Goods, whichever is earlier.

3. Disclaimer

3.1. The parties acknowledge and agree that:

1. (a) Tasman is only an importer of pool glass, balustrade glass and other associated products;
2. (b) Tasman does not manufacturer goods such as those described in subclause 3.1(b); and
3. (c) Tasman can only warrant the quality of the Goods at the time of delivery and to the extent such matters are within the reasonable control of Tasman.

 

4. Term

4.1. This Agreement will commence on the date the last party signing signs the Purchase Order or the date the Goods are accepted by the Customer, whichever is earlier, and shall expire on the date specified in the Purchase Order or upon final payment of Fees by the Customer (whichever occurs later), except where it is terminated earlier in accordance with this Agreement.

5. Price

5.1. Tasman reserves the right to change the Price in the event of a variation to the Purchase Order including, without limitation, additional Goods required to be provided by Tasman for reasons, causes, events or requirements not reasonably ascertainable by Tasman at the time of submitting a quotation for Goods to the Customer.

5.2. The Customer must make payment for the Goods by the due date specified in the Purchase Order. If no due date has been specified, payment for the Goods must be made within seven (7) Business Days from the date the last party signing signs the Purchase Order.

6. Purchase and Delivery of Goods

6.1. The Customer must pay the Price in accordance with the terms of the Agreement.

6.2. The parties agree that ownership of the Goods shall not pass until:

1. (a) The Customer has paid to Tasman all amounts owing as specified in the Purchase Order; and
2. (b) The Customer has met all other obligations under this Agreement.

 

6.3. At Tasman’s sole discretion, the Goods shall be deemed to have been delivered to the Customer when:

1. (a) the Customer takes possession of the Goods at Tasman’s address; or
2. (b) the Customer takes possession of the Goods at the Customer’s nominated address.

 

6.4. The Customer shall make all arrangements necessary to take delivery of the Goods at the date and time specified in the Purchase Order.

6.5. All risk in the Goods shall pass from Tasman to the Customer upon delivery (in accordance with clause 6.3) of the Goods.

6.6. Where:

1. (a) the Goods are damaged or destroyed during transit;
(b) Tasman has taken responsibility for transporting the Goods to the Customer’s nominated address; and
2. (c) risk in the Goods has not yet passed to the Customer in accordance with clause 6.5, then Tasman will be responsible for the replacing such Goods including organizing and bearing the costs of transporting thereof.

 

7. Acknowledgements in relation to Goods

7.1. Tasman shall be entitled to rely on the accuracy and completeness of any plans, specifications and other information provided to it by the Customer.

7.2. The Customer acknowledges and agrees that in the event any information provided by the Customer to Tasman is inaccurate or incomplete, Tasman will not be liable for any Loss that arises as a result from Tasman’s reliance on such information.

7.3. The Customer acknowledges that:

1. (a) all descriptive specifications, illustrations, dimensions and weights stated in Tasman’s or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only; and
2. (b) the Customer shall not be entitled to rely on such information mentioned in subclause (a).

 

7.4. The Customer acknowledges that the Goods may be subject to a plus or minus two millimetres (+/- 2mm) tolerance due to variation in glass thickness and small waves that may result from the toughening process used to produce the Goods.

7.5. The Customer acknowledges that Goods supplied may:

1. (a) exhibit variations in shade, colour, texture, surface, finish, markings, occlusions, lines, indentations and may fade or change colour over time;
2. (b) expand, contract or distort as a result of exposure to heat, cold, weather;
3. (c) mark or stain if exposed to certain substances; and
4. (d) be damaged or disfigured by impact or scratching.

 

8. Warranty

8.1. Subject to clause 8.3, Tasman warrants that all Goods provided to the Customer, as set out in the Purchase Order, will be free of any defects during the Warranty Period.

8.2. During the Warranty Period, Tasman must, at no additional cost or charge and without prejudice to any other rights or remedies to the Customer, repair or replace the Goods that are deemed to be defective, as agreed by the parties.

8.3. Tasman will not be liable for any Loss suffered by the Customer, or failure to provide the Goods, or for any defects in the Goods, to the extent that such Loss, failure or defects have been caused or contributed to by the following:

1. (a) failure by the Customer or third party to properly maintain the Goods to the extent reasonably expected of a prudent consumer of such Goods;
2. (b) failure on the part of the Customer to follow any instructions or guidelines, as provided to the Customer by Tasman;
3. (c) the combination, operation or use of the Goods except as expressly stated in the relevant Purchase Order;
4. (d) the continued use of the Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator;
5. (e) improper installation of the Goods by the Customer or any third party; and
6. (f) fair wear and tear, and any accident by God.

 

8.4. Where a defect arises due to or in connection with the events described in clause 8.3, Tasman will be entitled to charge the Customer, and the Customer agrees to pay the reasonable costs incurred by Tasman in rectifying the defect or failure where the Customer has requested Tasman to do so in writing.

8.5. To the extent permitted by law, the Customer is liable for and indemnifies Tasman in respect all costs and expenses associated with the transportation of the Goods for the purposes of this clause 8.

9. Liability

9.1. To the extent permitted by law, Tasman’s liability to the Customer under this Agreement for breach of a consumer guarantee (but excluding breaches of section 51, 52, and 53 of the Australian Consumer Law) in relation to the supply of non-household Goods is limited to:

1. (a) the replacement of the Goods or the supply of equivalent Goods;
2. (b) the repair of the Goods;
3. (c) the payment of the cost replacing the Goods or acquiring equivalent Goods; or
4. (d) the payment of the cost repairing the Goods.

 

9.2. Except as provided under clause 9 and to the maximum extent permitted by law, Tasman’s aggregate liability for all claims of Loss suffered by the Customer in connection with this Agreement (including a claim in contract, tort, equity, breach of statute or under an indemnity) is limited to the Price as set out in the Purchase Order.

9.3. Tasman will only be liable to the Customer for the proportion of the Loss that Tasman has directly caused or contributed to, and we will not be liable for any Consequential Loss.

9.4. The Customer must use all reasonable endeavours to mitigate any Loss suffered that arises out of or in connection with the Agreement.

10.1. Either party may terminate this Agreement for cause immediately via written notice if the other party:

1. (a) commits a material breach of this Agreement and has not remedied the breach within ten (10) Business Days of receiving such notice; or
2. (b) becomes insolvent, goes into liquidation, receivership or is declared bankrupt.

 

10.2. Tasman may terminate this Agreement for cause immediately via written notice if the Customer has not paid any amount of monies which is undisputed and properly payable and Tasman has notified the Customer of the outstanding amount stating that it will terminate the Agreement if the Customer does not pay such amount within ten (10) Business Days.

10.3. If the Agreement is terminated in accordance with clause 10.1, Tasman will refund all monies paid under this Agreement.

10.4. If the Agreement is terminated in accordance with clause 10.2, the Customer must pay Tasman all costs reasonably incurred as a result of the termination, including the costs for recovering or replacing the Goods.

11. Entire Agreement

11.1. This Agreement is the entire agreement between the parties for the supply of Goods and supersedes all prior communications, negotiations, arrangements and agreements, either oral or written between the parties in relation to its subject matter.

11.2. Any changes to this Agreement must be agreed to in writing by the parties.

12. Assignment

12.1. Neither Party may transfer, assign or novate this Agreement without the consent of the other.

13. Governing Law

13.1. This Agreement is governed by the Laws of Queensland and each party irrevocably submits to the jurisdiction of the courts exercising jurisdiction in that State.

14. General

14.1. If any of the terms of this Agreement are not legally enforceable then that term or the relevant part of it will be either amended as appropriate to make it enforceable or ignored, but in all other aspects this Agreement will have full effect.

14.2. The rights and remedies in this Agreement are cumulative and do not exclude any rights or remedies provided by law.

15. Interpretation

15.1. In this Agreement:

1. (a) headings are for convenience only and do not affect how this Agreement is interpreted;
2. (b) the singular includes the plural and conversely;
3. (c) a reference to this Agreement or an act or instrument is to this Agreement, or that act or instrument as amended, varied, novated or replaced from time to time; and
4. (d) if there is any conflict between this Agreement, a Purchase Order and any other part of this Agreement, the following order of priority will apply:
   1. (i) a Purchase Order executed between the parties;
   2. (ii) these terms and conditions; and
   3. (iii) any other document exchanged between the Parties.