Definitions

1. In this document the following definitions apply.

(a) “Couchmate Pty Ltd” shall mean its subsidiary/ies and related companies as defined in the Corporations Act 2001 (cth) and their and each of their servants or agents, hereinafter referred to as the “Company”.
(b) “Customer” shall mean any person, firm, corporation, government, semi-government or local government department or authority, its successor’s, assignee’s, trustee’s, administrator’s or liquidator’s, to whom or to which “Goods and Services” are sold by the “Company”.
(c) “Goods and Services” means any services or products produced, provided and/or sold to the “Customer” by the “Company”.
(d) “Indemnity” whenever it is herein provided that the “Customer” shall indemnify the “Company”, then the indemnity to be provided shall be a full and complete indemnity from and against liability in respect of all claims, demands, action, suits, proceeds and costs.

Credit Terms

2. Payment of all accounts shall be made on or before 30 days from the date of invoice unless prior written arrangements have been made with the “Company”.

3. The “Company” may at any time without notice, terminate or suspend the “Customer’s” right to purchase or acquire “Goods and Services” from the “Company” on credit and shall not be liable for any damages, costs, penalties or charges incurred by the “Customer” as a result of the non- supply of “Goods and Services” or services by the “Company”.

4. All invoices shall immediately become due and payable in the event of default on payment by the “Customer” of any invoice or account, regardless of whether or not some invoices may not otherwise have become due for payment.

5. If you are a tenant in a premises where these “Goods and Services” are being paid for by a body corporate, property manager or other entity, please note that any payment related clauses below do not apply to you (unless you have authorised the “Company” to provide additional services outside the normal scope of works for your site), however all other clauses apply.

6. Any amount that remains unpaid for 14 days from the date of invoice shall incur interest at the rate of $15.00 or 5% (which ever charge is the greater) per month or part thereof as an administration charge. The “Customer” agrees that that this is a fair and reasonable charge and is directly relevant to the likely damage that the “Company” might suffer as a result of non-payment by the “Customer”. Interest of 5% will be calculated on all outstanding amounts from the date of issue of the invoice.

7. Any unpaid amounts that may from time to time be overdue and any interest charged shall be recoverable forthwith from the “Customer” as a liquidated debt.

8. Payment shall be made by the “Customer” to the “Company” without any set off or deduction against any other amount whatsoever.

9. The “Customer” hereby gives the “Company” authority to make enquiries as to the credit and financial responsibilities of the “Customer” and/or the Directors and/or Shareholders in order to suitably qualify the “Customer’s” capacity to incur debt and repay any amounts to the “Company”. These inquiries shall include but not be limited to obtaining reports from credit reporting agencies and references from current and/or past providers of credit to the “Customer”.

10. In the event of default on payment by the “Customer”, the “Customer” will be liable for all losses, liabilities, costs and expenses (including but not limited to debt recovery and legal expenses, including commission charged by debt recovery agents and solicitor’s costs) on a full indemnity basis or on a solicitor and own “Customer” basis whichever is the higher, incurred by the “Company” seeking to recover the default amount.

11. The “Customer” hereby charges its interest in any and all land registered in its name as security for payment of monies it owes the “Company”.

12. In accordance with s.18E(8)(c) of the Privacy Act 1988, the “Customer” acknowledges that the “Company” has informed it that certain items of personal information about the “Customer” contained in/or relating to the “Customer’s” Application for Credit and permitted to be kept on a credit information file might be disclosed to a credit reporting agency. Furthermore, the “Customer” agrees, in accordance with s.18H(3), s.18K(1)(b), s.18K(1)(c), s.18K(1)(h) and s.18N(1)(b) of the Privacy Act 1988 that use by the “Company” of the relevant information referred to in those sections may occur for the purpose of assessing the “Customer’s” credit application.

13. In addition to the Credit Terms, the “Customer” agrees to make payment for any additional services which are provided to the “Customer” at an additional cost. These services may include (but are not limited to) logger reports and the Public Holiday Surcharge. These services will only be provided after a verbal or written request from the “Customer” has been received.

Jurisdiction

14. This contract is deemed to have been entered into in the State of Tasmania. Any legal action arising out of, or in respect of the contract and/or the interpretation thereof shall be brought only in the State of Tasmania. The parties further agree to issue any proceedings in the Hobart registry of the appropriate Court having monetary jurisdiction over the matter.

Compliance

15. During the period of purchase, the “Customer” shall observe, comply and indemnify the “Company” from and against all claims for loss, damage, death or injury arising from any failure so to observe and comply with all Acts, Ordinances, Regulations, By Laws and Proclamations and the requirements of any statutory, local or other authority, and all rules and requirements of the owner of any property in, on or about or by way of sale to third party by which the “Goods and Services” is used in relation to.

16. This purchase agreement is not bound by the following legislation and the “Customer” agrees that the following do not apply to this purchase agreement and are exceptions to each legislation except where applicable: (a) Competition and Consumer Act 2010; (b) Trade Practices Act 1974; (c) The Consumer Protection Rules 1987; (d) Sale of “Goods and Services” Act 1896; and (e) Fair Trading Act 1989.

General Terms of Sale and Service

17. These terms and conditions are fully transferable between the “Company” and “Customer”, and are binding on any future owners, directors, representatives or managers of “the Customer” and persons and entities that purchase the “Customer” in as much that the termination of employment of the signatories on this document does not automatically cause the Terms and Conditions to cease.

18. All “Goods and Services” sold to the “Customer”, remains the property of the “Company” until paid for in full by the “Customer” to the “Company”.

19. The “Customer” shall not be entitled to damages or compensation from the “Company” for any loss suffered by reason of late delivery or fault of the ““Goods and Services” or if the “Company” determines the ““Goods and Services” is faulty by the condition of the site at which it is stored.

20. The “Company” reserves the right to amend pricing and/or terms and conditions from time to time without prior notice to the “Customer” (unless the services are under a Service Agreement) in which case notice will be given 30 days prior.

Duties and Charges

21. Unless otherwise stated, all rates, charges and/or prices are quoted exclusive of GST, duty, taxes or any other statutory charge or fee payable in connection with the purchase of the ““Goods and Services”.

22. The “Customer” acknowledges that the rate for purchase of ““Goods and Services” from the Company does not include any provision for insurance cover on behalf of the “Customer”.

Security interests

23. The “Customer” must not create, purport to create or permit to be created any ‘security interest’ (as defined in PPS Law) in the ““Goods and Services” other than with the express written consent of the “Company” until full payment is made to the “Company” for the ““Goods and Services”.

24. The “Customer” must take all steps including registration under PPS Law as may be required to: (a) (b) enabling the “Customer” to gain (subject always to the rights of the “Company”) first priority (or any other priority agreed to by the “Company” in writing) for the security interest; and (c) enabling the “Company” and “Customer” to exercise their respective rights in connection with the security interest. 38. The “Company” may recover from the “Customer” the cost of doing anything under this clause, including registration fees.

Delivery

25. Delivery and/or Pick up charges may be subject to additional charges and shall be quoted upon request from the “Customer”.

26. Any permits and/or licence fees and toll charges incurred by the “Company” shall be charged to the “Customer’s” account.

Title

27. This is a purchase agreement and at no stage does title of the ““Goods and Services” pass from the “Company” to the “Customer” until full payment is made from the “Customer” to the “Company”.

Credit Requests

28. Credit Requests must be received within fourteen (14) days of invoice date, except in the event of shipping delays to the “Customer” to receive stock, which will be on a case-by-case basis.

29. Credits will be issued within 30 days following the receipt of the Credit Request Form.

Cancelled Services

30. If any “Goods and Services” have already been processed for manufacturing or shipping they will be considered to be purchased, prepared or provided by the “Company” to the “Customer” at the time the “Customer” has made a cancellation, the Customer is liable for the full cost of the “Goods and Services” already incurred by the “Company” at the time of cancellation.

31. On cancellation, any deposit paid by the “Customer” to the “Company” is forfeited by the “Customer” to the “Company”.

32. The “Company” reserves the right to cancel the “Goods and Services” provided to a “Customer” at any time without notice to the “Customer”.

33. If the “Customer” contravenes any terms of this agreement, the “Company” reserves the right to cancel services without providing any notice, and may forward an invoice to the “Customer” for services already provided in that invoice period, for which the “Customer” is liable, plus any additional amounts if applicable.

Warranties

34. The “Company” warrants that the “Goods and Services” and/or Products supplied shall be of merchantable quality. the “Company” does not warrant that the “Goods and Services” and/or Products are fit for a particular purpose and, except or unless otherwise stated in these terms and conditions, warranties relating to title, defects or conformity of the “Goods and Services” and/or Products are expressly excluded. Any costs associated with the return of the “Goods and Services” and/or for the purpose of a warranty claim shall be the responsibility of the “Company”.

35. Our goods come with the statutory guarantees imposed by the Australian Consumer Law.
The “Company” warranty period does not cover the following: Normal wear and tear, including fading, loss or deterioration (of the whole of the product or its components);
Damage caused by improper use, cleaning, negligence, treatment, transportation, storage of the products or otherwise caused by “The Customer” acts and/ or omissions;
Damaged caused through any modifications, alterations, tampering or products used in an abnormal manner and not for the products intended purposes;
Damage caused by exposing the products to the sun, extreme heat or cold, or chemicals/agents that are known to damage the finish of the product;
Damages caused by Act of God; or,
Defects in products that are sold “As Is” which have been brought to “The Customer’s” attention.
Below is some information about the rights that the statutory guarantees provide.
When can “The Customer” obtain a refund or replacement under the statutory guarantees?

(a) We are not required to provide a refund or replacement if “The Customer” changes their mind.
(b) If the product doesn’t comply with one of the consumer guarantees in the Australian Consumer Law, “The Customer” is entitled to receive a refund or replacement, depending on whether there is a major or non-major problem.
(c) The statutory guarantees include guarantees that the product: is of acceptable quality; is fit for any disclosed purpose; and matches its description or sample.
(d) “The Customer” can choose a refund or exchange if a product has a major problem. This is when it: has a problem that would have stopped someone from buying the product if they had known about it; is unsafe; is significantly different from the description or a sample; or doesn’t do what “The Company” said it would, or what “The Customer” asked for, and can’t be easily fixed.
(e) Alternatively, “The Customer” can choose to keep the item and “The Company” will compensate “The Customer” for any drop in value.
(g) “The Customer needs to retain the proof of purchase – e.g. order confirmation/receipt. This information doesn’t limit the scope of “The Customer’s” rights or our obligations under the Australian Consumer Law. More information about the Australian Consumer Law is available on the Australian Competition and Consumer Commission website: http://www.accc.gov.au.

Limitation of Liability

36. The liability of the Company to the “Customer” for any reason related to the performance under this agreement shall be limited to the replacement of the “Goods and Services” and/or Products or the amount paid or payable by the “Customer” in respect of the particular “Goods and Services”, Products or Services.

37. The “Company” has no liability for any action or inaction of our staff, contractors or agents, and the “Company” will not be liable to the “Customer” for any loss or damage caused by any reason beyond the control of the “Company” including but not limited to mechanical break-down, storm, earthquake, strike, lock-out, labour disputes, act of God, war (whether declared or not), Act (administrative or legislative) of any Government, riot or civil commotion, fire, explosion or act or omission of the “Customer” or staff, contractors or agents. The “Company” will not be liable to the “Customer” for any direct or consequential damage or any loss, damage or liability suffered or incurred such loss, damage or liability is caused by the negligence of the “Company” or its representatives, contractors or agents, acting within the scope of their employment.

38. At all times, liability of the “Company” will be limited to either the cost of supplying, replacing or repairing the goods or services as determined by the “Company”.

39. The “Customer” indemnifies “the Company” against any costs, damages, loss or liability of any kind (including legal costs) suffered or incurred by the “Company” in regards to personal injury or death of any person, or loss of or damage to any property arising from, caused or contributed to by any act, error or omission of the “Customer” its staff, contractors or agents.

Severability

40. The invalidity or unenforceability of any provision of these terms and conditions shall not affect the validity or enforceability of the remaining provisions. Clerical errors are subject to correction and do not bind the Company. Headings are for ease of reference only and do not form part, or affect the interpretation, of these terms and conditions.

Waiver

41. Failure by the Company to insist upon strict performance of any term or condition herein shall not be deemed a waiver thereof or of any rights the Company may have, and shall not be deemed a waiver of any subsequent breach of any term or condition.

Defects

42. The “Customer” must inspect the “Goods and Services” and/or Products upon delivery and installation and notify the “Company” in writing within fourteen days (14) of any defects, short deliveries or any failure to fulfil any quotation or order.

43. The “Company” will within a reasonable period following delivery and installation be given access to the “Goods and Services” and/or Products in order to inspect for any alleged defects. Should the “Customer” fail to notify the “Company” within fourteen days (14) of an alleged defect, short-delivery or failure to fulfil any quotation or order, then the “Goods and Services” and/or Products shall be deemed to be in compliance with the order and free from any defect whatsoever.

44. Claims against the “Company” must be made by the “Customer” to the “Company” within 7 days of the day that the existence of the claim came or should have come to the notice of the “Customer”, and must state the nature, grounds and amount of the claim. Time is of the essence in respect of this clause, and claims not notified within 7 days to the “Company” shall not be allowable or admitted and shall be deemed waived or abandoned by the “Customer”.

45. Visible damage to the “Goods and Services” and/or Products must be reported to the “Company” via email with photographic evidence of the defect before a refund or replacement claim will be considered.

46. The “Customer”, at the “Company” cost, must deliver to the “Company” any “Goods or Services” which the “Customer” alleges to have a defect within seven days (7) of the “Company” approving a return for the “Company” to inspect.

47. The “Company” does not accept any responsibility for loss or breakage of “Goods and Services” and/or products whilst in transit whatsoever.

Acknowledgement

I/We the undersigned declare that all information provided to the “Company” for the purposes of assessing the “Customer’s” suitability for credit and purchase of ““Goods and Services” is true and correct in every particular.

I/We the undersigned further acknowledge that I/we have read understand and agree to the above terms and conditions.

This agreement may be executed in any number of counterparts. Each counterpart is an original but the counterparts together are one and the same agreement. The agreement may be entered into by and becomes binding on the parties named in the agreement upon one party signing the agreement that has been signed by the other (or a photocopy or facsimile copy of that Agreement) and transmitting a facsimile copy of it to the other party.