1. Definitions
1.1 “Taylex” means Taylex Australia Pty Ltd, Taylex Services Pty Ltd or any related organisation. This includes any person acting on behalf of and with the authority of Taylex.
1.2 “Customer” means the person/s buying the goods as specified in any invoice, document or order, and if there is more than one customer is a reference to each customer jointly and severally.
1.3 “Goods” means all goods or services supplied by Taylex to the customer at the customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the price payable for the goods as agreed between Taylex and the customer in accordance with clause 5 below.
1.5 “Cash Account” – customers who don’t have an approved trading account with Taylex.
1.6 “Marketing Tank” – goods provided to the customer. Such goods are used for advertising purposes and remain the property of Taylex.
1.7 “Competitor” – any person/s, organisation or representative that are in direct or likely to be in direct competition with Taylex. Including, but not limited to manufacturers, distributors of goods that trade in the same industry of Taylex.
2. Acceptance
2.1 The customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the customer places an order for or accepts delivery of the goods.
2.2 These terms and conditions may only be amended with Taylex’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the customer and Taylex.
2.3 The customer acknowledges and accepts that the supply of goods for accepted orders may be subject to availability and if, for any reason, goods are not or cease to be available, Taylex reserves the right to vary the price with alternative goods as per clause 5.2.
3. Electronic Transactions Act (Queensland) 2001
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The customer shall give Taylex no less than fourteen (14) days prior written notice of any proposed change of ownership and/or any other change in the customer’s details (including but not limited to, changes in the customer’s name, trading name, address, contact phone, ABN or business practice). The customer shall be liable for any loss incurred by Taylex as a result of the customer’s failure to comply with this clause.
4.2 In the event of the customer being an individual or partnership, or a company of which the individual is a director, he or she personally is a guarantor for any debts. If ownership of the business changes, such individuals will continue to remain liable for the outstanding debt incurred until such time the supplier is notified in writing of the ownership transfer.
5. Price and Payment
5.1 At Taylex’s sole discretion the price shall be either:
(a) as indicated on any invoice provided by Taylex to the customer; or
(b) the price as at the date of delivery of the goods according to Taylex’s current price list; or
(c) Taylex’s quoted price (subject to clause 5.2) which will be valid for the period stated on the quotation or otherwise for a period of thirty (30) days.
5.2 Taylex reserves the right to change the price if a variation to the quotation is requested. Any variation from the plan of scheduled services or specifications of the goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to Taylex’s cost of freight, levies, materials and labour).
5.3 At Taylex’s sole discretion a non-refundable deposit may be required. Unless specified on the quotation, bespoke jobs will not commence until a 50% deposit is received. For cash accounts, a 100% deposit is required prior to processing the order.
5.4 The price will be payable by the customer on the date/s determined by Taylex, which may be:
(a) before delivery of the Goods;
(b) by way of instalments/progress payments if approved by Taylex;
(c) thirty (30) days following the end of the month;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice sent to the customer.
5.5 Payment may be made by Electronic Fund Transfer (EFT), credit card (plus a surcharge), or by any other method as agreed to between Taylex and the customer.
5.6 Unless otherwise stated the price does not include GST. In addition to the price the customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the customer pays the price. In addition, the customer must pay any other taxes and duties that may be applicable in addition to the price except where they are expressly included in the price.
5.7 Taylex may offer the customer a freight rebate. At Taylex’s sole discretion, the rate may be amended or removed, and the customer will be given seven (7) days’ notice of any changes.
5.8 In the event that Taylex incurs costs to recover debt or the recovery of goods, the cost of such activity will be passed to the customer.
6. Delivery of Goods
6.1 Delivery of the Goods is taken to occur at the time that:
(a) the customer or the customer’s nominated carrier takes possession of the goods; or
(b) Taylex (or the Taylex’s nominated carrier) delivers the goods to the customer’s nominated address even if the customer is not present at the address.
6.2 At Taylex’s sole discretion the cost of delivery is in addition to the price.
6.3 The customer must take delivery by receipt or collection of the goods whenever either is tendered for delivery. In the event that the customer is unable to take delivery of the goods as per the arrangement, Taylex reserves the right to charge the customer a daily storage fee.
6.4 Any time or date given by Taylex to the customer is an estimate only. The customer must still accept delivery of the goods even if late and Taylex will not be liable for any loss or damage incurred by the customer as a result of the delivery being late.
7. Risk
7.1 Risk of damage to or loss of the goods passes to the customer.
7.2 If any of the goods are damaged or destroyed following delivery but prior to ownership passing to the customer, Taylex is entitled to receive all insurance proceeds payable for the goods.
7.3 If the customer requests for Taylex to leave goods outside of Taylex’s premises for collection or to deliver the goods to an unattended location then such goods shall be left at the customer’s sole risk.
7.4 The customer acknowledges that Taylex is only responsible for parts supplied and that in the event that other goods, subsequently fail, the customer agrees to indemnify Taylex against any loss or damage to the goods, or caused by the goods.
7.5 Any advice, recommendation, information, assistance or service provided by Taylex in relation to goods or services supplied is given in good faith, is based on Taylex’s own knowledge and experience and shall be accepted without liability on the part of Taylex. It shall be the responsibility of the customer to confirm the accuracy and reliability of such information.
7.6 Taylex does not accept any claims for the damage or loss to the customer’s property or third party’s property caused by marketing tanks.
7.7 Taylex’s employees may be required to enter the customer’s property from time to time. It is the responsibility of the customer to ensure the environment is safe and to alert Taylex employees to any potential hazards. Taylex will take precautions to protect the property of the customer however Taylex will not accept liability for any accidental property damage.
7.8 Taylex may submit documents to regulatory bodies on behalf of the customer. Taylex will make every effort to ensure such documents are accurate and submitted in a timely manner. Taylex will not be liable for any damages due to inaccuracies or delays with regard to these submissions.
8. Title
8.1 Taylex and the customer agree that ownership of the goods shall not pass until:
(a) the customer has paid Taylex all amounts owing to Taylex; and
(b) the customer has met all of its other obligations to Taylex.
8.2 Receipt by Taylex of any form of payment other than payment methods stated in 5.5 shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
8.3 It is further agreed that:
(a) until ownership of the goods passes to the customer in accordance with clause 8.1 that the customer is only a bailee of the goods and must return the goods to Taylex on request.
(b) In the event of an insurance claim regarding damage/loss to goods, the proceeds of such claims shall pass to Taylex.
(c) the customer must not sell, dispose, or otherwise part with possession of the goods other than in the ordinary course of business and for market value. If the customer sells, disposes or parts with possession of the goods then the customer must hold the proceeds of any such act on trust for Taylex and must pay or deliver the proceeds to Taylex on demand.
(d) the customer should not convert or process the goods or intermix them with other goods but if the customer does so then the customer holds the resulting product on trust for the benefit of Taylex and must sell, dispose of or return the resulting product to Taylex as it so directs.
(e) the customer irrevocably authorises Taylex to enter any premises where Taylex believes the goods are kept and recover possession of the goods.
(f) Taylex may recover possession of any goods in transit whether or not delivery has occurred.
(g) the customer shall not charge or grant an encumbrance over the goods nor grant nor otherwise give away any interest in the goods while they remain the property of Taylex.
(h) Taylex may commence proceedings to recover the price of the goods sold notwithstanding that ownership of the goods has not passed to the customer.
8.4 Marketing tanks may be provided to the customer. The title of the marketing tanks remains with Taylex unless agreed between both parties. The customer will not move, alter or dispose of marketing tanks without Taylex’s written consent.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all goods, equipment and collateral.
9.3 The customer undertakes to:
(a) promptly sign any further documents and provide any further information which Taylex may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.2(a)(i) or 9.2(a)(ii);
(b) indemnify, and upon demand reimburse Taylex for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any goods/equipment charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Taylex;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the goods, equipment and collateral (account) in favour of a third party without the prior written consent of Taylex;
(e) immediately advise Taylex of any material change in its business practices of selling goods which would result in a change in the nature of proceeds derived from such sales.
9.4 Taylex and the customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by Taylex, the customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The customer must unconditionally ratify any actions taken by Taylex under clauses 9.2 to 9.5.
9.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10. Security and Charge
10.1 In consideration of Taylex agreeing to supply the goods, the customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the customer either now or in the future, to secure the performance by the customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The customer indemnifies Taylex from and against all Taylex’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Taylex’s rights under this clause.
10.3 The customer irrevocably appoints Taylex and each director of Taylex as the customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the customer’s behalf.
11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
11.1 The customer must inspect the goods on delivery and must within seven (7) days of delivery notify Taylex in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The customer must notify any other alleged defect in the goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the customer must allow Taylex to inspect the goods. The customer shall provide evidence of such defects by way of photographs, video or any method requested by Taylex.
11.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
11.3 Taylex acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Taylex makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the goods. Taylex’s liability in respect of these warranties is limited to the fullest extent permitted by law.
11.5 If the customer is a consumer within the meaning of the CCA, Taylex’s liability is limited to the extent permitted by section 64A of Schedule 2.
11.6 If Taylex is required to replace the goods under this clause or the CCA, but is unable to do so, Taylex may refund any money the customer has paid for the goods.
11.7 If the customer is not a consumer within the meaning of the CCA, Taylex’s liability for any defect or damage in the goods is:
(a) limited to the value of any express warranty or warranty card provided to the customer by Taylex at Taylex’s sole discretion;
(b) limited to goods manufactured by Taylex;
(c) otherwise negated absolutely.
11.8 Subject to this clause 11, returns will only be accepted provided that:
(a) the customer has complied with the provisions of clause 11.1; and
(b) Taylex has agreed that the goods are defective; and
(c) the goods are returned within a reasonable time at the customer’s cost and
(d) the goods are returned in as close a condition to that in which they were delivered as is possible.
11.9 Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, Taylex shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the customer failing to properly maintain or store any goods;
(b) the customer using the goods for any purpose other than that for which they were designed;
(c) the customer continuing the use of the goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the customer failing to follow any instructions or guidelines provided by Taylex;
(e) fair wear and tear, any accident, or act of God.
11.10 Taylex may in its absolute discretion accept non-defective, stocked goods for return in which case Taylex may require the customer to pay handling fee of ten percent (10%) of the value of the returned goods plus any freight costs.
11.11 Notwithstanding anything contained in this clause if Taylex is required by a law to accept a return then Taylex will only accept a return on the conditions imposed by that law.
12. Intellectual Property
12.1 Where Taylex has designed, drawn or developed goods for the customer, then the copyright in any designs and drawings and documents shall remain the property of Taylex. Such designs, drawings or processes include software, marketing material, signage and advertising.
12.2 The customer warrants that all designs, specifications or instructions given to Taylex will not cause Taylex to infringe any patent, registered design or trademark in the execution of the customer’s order and the customer agrees to indemnify Taylex against any action taken by a third party against Taylex in respect of any such infringement.
12.3 The customer agrees that Taylex may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or goods which Taylex has created for the customer.
12.4 The customer agrees that Taylex may, without further consent, use photographs, images, product descriptions, reviews, testimonials, or other materials related to the customer’s purchase or use of Taylex products or services for marketing, advertising, promotional, or media purposes. This includes, but is not limited to, use in brochures, websites, social media, press releases, and news articles, whether in print or digital form.
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment. The reference rate of Taylex’s nominated banking corporation plus 2% will apply.
13.2 If the customer owes Taylex any money the customer shall indemnify Taylex from and against all costs and disbursements incurred by Taylex in recovering the debt (including but not limited to internal administration fees and any legal fees).
13.3 Further to any other rights or remedies Taylex may have under this contract, if a customer has made payment to Taylex by credit card, and the transaction is subsequently reversed, the customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Taylex under this clause 13 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the customer’s obligations under this agreement.
13.4 Without prejudice to any other remedies Taylex may have, if at any time the customer is in breach of any obligation (including those relating to payment) under these terms and conditions Taylex may suspend or terminate the supply of goods to the customer. Taylex will not be liable for any loss or damage the customer suffers because Taylex has exercised its rights under this clause.
13.5 Without prejudice to Taylex’s other remedies at law Taylex shall be entitled to cancel all or any part of any order of the customer which remains unfulfilled and all amounts owing to Taylex shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Taylex becomes overdue, or in Taylex’s opinion the customer will be unable to make a payment when it falls due;
(b) the customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the customer, associated entities or any asset of the customer.
14. Cancellation
14.1 Taylex may cancel any contract to which these terms and conditions apply or cancel delivery of goods at any time before the goods are due to be delivered by giving written notice to the customer. On giving such notice Taylex shall repay to the customer any money paid by the customer for the goods. Taylex shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the customer cancels delivery of the goods the customer shall be liable for any and all loss incurred (whether direct or indirect) by Taylex as a direct result of the cancellation (including, but not limited to, any loss of profits).
14.3 Cancellation of orders for goods made to the customer’s specifications, or for non-stock list items, will not be accepted once production has commenced, or an order has been placed.
15. Dispute Resolution
15.1 If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
16. Privacy Act 1988
16.1 The customer agrees for Taylex to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the customer in relation to credit provided by Taylex.
16.2 The customer agrees that Taylex may exchange information about the customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the customer; and/or
(b) to notify other credit providers of a default by the customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the customer including the customer’s repayment history in the preceding two years.
16.3 The customer consents to Taylex being given a consumer credit report to collect overdue payment on commercial credit.
16.4 The customer agrees that personal credit information provided may be used and retained by Taylex for the following purposes (and for other agreed purposes or required by):
(a) the provision of goods; and/or
(b) analysing, verifying and/or checking the customer’s credit, payment and/or status in relation to the provision of goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
16.5 Taylex may give information about the customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the customer including credit history.
16.6 The information given to the CRB may include:
(a) personal information as outlined in 16.1 above;
(b) name of the credit provider and that Taylex is a current credit provider to the customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the customer no longer has any overdue accounts and Taylex has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Taylex, the customer has committed a serious credit infringement;
(h) advice that the amount of the customer’s overdue payment is equal to or more than fifty dollars ($50).
16.7 The customer shall have the right to request (by e-mail) from Taylex:
(a) a copy of the information about the customer retained by Taylex and the right to request that Taylex correct any incorrect information; and
(b) that Taylex does not disclose any personal information about the customer for the purpose of direct marketing.
16.8 Taylex will destroy personal information upon the customer’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
16.9 The customer can make a privacy complaint by contacting Taylex via e-mail. Taylex will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the customer is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
17. Consignment Stock (commonly known as ‘holding yards’)
17.1 Goods shall at all times remain the property of Taylex and Taylex has the right to demand for the return of such property.
17.2 The customer shall;
17.3 not give access to Taylex’s competitors to inspect, measure or test goods.
18. Other Applicable Legislation
18.1 At the supplier’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 (Victoria), Building and Construction Industry Security of Payments Act 1999 (New South Wales), Construction Contracts Act 2004 (Western Australia), Building and Construction Industry Payments Act 2004 (Queensland), Construction Contracts (Security of Payments) Act (Northern Territory of Australia), Building and Construction Industry Security of Payments Act 2009 (Tasmania), Building and Construction Industry Security of Payments Act 2009 (South Australia) and Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.
18.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 18.1 each as applicable, except to the extent permitted by the Act where applicable.
19. General
19.1 The failure by Taylex to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Taylex’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which Taylex has its principal place of business and are subject to the jurisdiction of the Queensland Courts.
19.3 Subject to clause 11 Taylex shall be under no liability whatsoever to the customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the customer arising out of a breach by Taylex of these terms and conditions (alternatively Taylex’s liability shall be limited to damages which under no circumstances shall exceed the price of the goods).
19.4 The customer shall not be entitled to set off against, or deduct from the price, any sums owed or claimed to be owed to the customer by Taylex nor to withhold payment of any invoice because part of that invoice is in dispute.
19.5 Taylex may license or sub-contract all or any part of its rights and obligations without the customer’s consent.
19.6 The customer agrees that Taylex may amend these terms and conditions at any time. If Taylex makes a change to these terms and conditions, then that change will take effect from the date on which Taylex makes such changes on its website. The customer will be taken to have accepted such changes if the customer continues to transact with Taylex.
19.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
19.8 The customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
20. Nature of Arrangement
20.1 Taylex’s relationship with the customer is non-exclusive unless agreed in writing. Taylex is free to enter into arrangements with other parties in relation to similar agreements.
20.2 The customer is not to use Taylex’s logo, slogans, advertising material or any other branding without the written consent from Taylex. Should this consent be granted, Taylex reserves the right to cease this agreement in writing and providing seven (7) days’ notice.
