Porter's Paints
Conditions of Sale
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Important notice: This document sets out the terms and conditions on which we agree to supply goods to you. It contains provisions that might affect your interests, such as by limiting or excluding our liability in some circumstances. Please read it carefully and, if appropriate, seek professional advice.
1. DEFINITIONS
In these terms and conditions:
“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any other equivalent legislation (such as the Fair Trading Acts (or equivalent legislation) in each State and Territory in Australia);
“Consequential Loss” means any loss or damage suffered by a party or any other person which is indirect or consequential, or which relates to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity;
“Contract” means the contract for the purchase of Goods consisting of these conditions of sale, any Trading Account Application Form submitted by you and accepted by us (if applicable), any Trade Card Form submitted by you and accepted by us (if applicable) and the accepted Orders for Goods placed under this Contract (as applicable);
“Defect” means a defect, flaw or imperfection in the Goods which prevents the Goods from being used for the purposes intended for such Goods or which makes the use of the Goods dangerous, but does not include anything which has been disclosed by us as a feature or limitation of the Goods prior to the date of purchase, or any defect, flaw or imperfection that is trivial or insubstantial;
“Goods” means all products and services agreed to be supplied by us to you from time to time under this Contract;
“GST” means any goods and services tax and any replacement or similar tax;
“GST Law” means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Invoice” means the invoice issued by us to you setting out the amount to be paid by you for the Goods purchased under this Contract;
“Order” means any order for Goods placed by you with us, in whatever form;
“you” means the customer specified on the Invoice for Goods purchased under this Contract; and
“we” or “us” means the DuluxGroup entity which is specified on the Invoice issued to you in relation to the Goods purchased under this Contract (or otherwise, DuluxGroup (Australia) Pty Ltd).
2. GENERAL
- To the maximum extent permitted by law and subject to sub-clause 2(b), this Contract:
- supersedes and excludes all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods including, but not limited to, those relating to the performance of the Goods or the results that ought to be expected from using the Goods; and
- overrides any quotes, invoices, accepted or modified Orders and your terms and conditions of purchase (if any), exchanged between the parties whether or not such documents expressly provide that they override this Contract.
- Subject to sub-clause 2(c), unless we otherwise agree in writing, this Contract is the only contract which shall apply to all Goods supplied by us to you.
- If there is an inconsistency between any other terms agreed by you and us in writing (including those documents referred to in clause 2(a)(i)) and/or this Contract, this Contract will prevail to the extent of any inconsistency unless stated otherwise in those other terms.
3. ORDERS
- You may submit any Order for Goods to us from time to time. Unless otherwise agreed, you request that we supply you with the Goods listed in an Order on the terms and conditions set out in this Contract..
- We may accept or reject any Order or any variation or modification of an Order requested by you in our sole discretion. Once accepted by us, this Contract will apply to the Goods the subject of the Order.
- We may accept or reject any Order cancellation request by you in our sole discretion. If we accept a cancellation request, you will be liable for any reasonable direct loss or out-of-pocket expense suffered or incurred by us in respect of that Order (including, without limitation, payment for any Goods ordered by use from our suppliers relating to that Order before the date of cancellation) caused or incurred solely as a result of you cancelling the Order.
4. LIABILITY
- To the maximum extent permitted by law and subject to clause 4(b):
- we exclude all liability for any loss, however caused (including by our negligence), suffered or incurred by you in connection with a breach of this Contract or the supply of the Goods to you in excess of the total value of the Order which is the subject of the claim, whether or not we were aware of the possibility of such loss to you when this Contract was entered into;
- other than as set out in this Contract, we exclude all conditions, representations, warranties and guarantees, whether express or implied, by contract, trade or otherwise; and
- notwithstanding any other clause of this Contract, we exclude all liability whatsoever to you for any Consequential Loss relating in any way to the supply of Goods to you.
- If the Australian Consumer Law confers certain rights, guarantees or remedies on you which are not able to be excluded, restricted or modified except in limited circumstances, our liability for breach of any such right, guarantee or remedy is limited to us (at our election):
- replacing the Goods or supplying equivalent goods;
- repairing the Goods;
- paying the cost of replacing the Goods or of acquiring equivalent goods; or
- paying the cost of having the Goods repaired.
5. ADVICE
Except for any guarantees, rights or remedies which cannot be excluded or modified under the Australian Consumer Law, you hereby acknowledge that you have not relied on any service involving skill or judgment, or on any advice, recommendation, information or assistance provided by us in relation to the Goods or their use or application.
6. DELIVERY
We will make all reasonable efforts to have the Goods delivered to you by the estimated delivery date. However, time is not of the essence under this Contract and, except where we have an obligation under the Australian Consumer Law, we shall not be liable for any failure to deliver or delay in delivery for any reason.
7. DEFECTS
- You must examine the Goods for Defects upon delivery and notify us of any Defects in writing within 30 days of delivery. Except where the Australian Consumer Law requires, if you do not notify us of any Defects within 30 days of delivery you shall be deemed to have accepted the Goods.
- You must preserve any Goods that are found to have a Defect in the state in which they were delivered and allow us (or our nominated agent) access to your premises to inspect the Goods. If we, upon inspection, agree with you that such Goods have a Defect, the remedies set out in clause 4(b) will apply.
8. RISK AND TITLE
Unless otherwise agreed in writing, all risk and title in and to the Goods purchased shall pass to you when the Goods are delivered to the address specified in your Order.
9. PRICE
The price charged for the Goods will be the price listed on our online store website at the time of purchase.
10. RESALE OF GOODS
- Unless we have otherwise agreed in writing, you may not resell the Goods to any third party except as part of services you provide on a time and materials basis.
- If you resell Goods or services, then you and your contractors must:
- provide to the purchaser any instructions or information about the use or care of the Goods or services, information about repairs and any express warranties intended for the purchaser which are provided by us to you for the purpose of being provided to the purchaser;
- not make any statement or representation about the goods or services which is not consistent with information provided by us or make any representation on behalf of us;
- not make any false, misleading or deceptive statements, or any statement that is likely to mislead or deceive, about the Goods, services or us;
- if you or your contractors also provide related installation or other services, perform those services in accordance with any instructions and guidelines provided by us;
- promptly notify us of any claims that the Goods or services do not comply with the mandatory guarantees under the Australian Consumer Law or which involve safety issues or serious injury or death, and then co-operate with us in relation to the handling of those claims;
- comply with your obligations under the Australian Consumer Law in relation to mandatory guarantees; and
- not tamper with, alter, obscure or remove any trade marks which appear on the Goods or alter the labels or packaging in which they are intended to be offered to purchasers.
You indemnify us against all liability, loss, costs, damages or expense (including legal costs and expenses) incurred or suffered by us on a full compensation basis to the extent that it arises from a breach of this clause 10 by you or your contractors.
11. FORCE MAJEURE
- We are not liable for any failure to perform any of our obligations under this Contract as a result of any event beyond our reasonable control including, without limitation, where we are prevented or hindered from manufacturing, delivering or supplying the Goods as a result of any strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, products, equipment, facilities or services from usual suppliers on usual terms, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network or any epidemic, pandemic or other widespread health issue leading to business closure or limitations, including reduction in staff attendance at any of our premises. In such circumstances, we may suspend performance of any obligations under this Contract while the event continues. We shall not incur any liability to you in respect of such suspension.
- If any of the above events occur for more than 30 days, we may, without liability, terminate any affected Order immediately by notice in writing to you and, subject to us having received from you all monies you owe us under this Contract, you may terminate this Contract by notice in writing to us.
12. RELEASE
Except where legislation which cannot be excluded (such as the Australian Consumer Law) would make this clause 12 illegal, or where the inclusion of this clause 12 would otherwise make us liable to a penalty, you release us from any claim that is made against us for damages or otherwise in respect of any loss, damage, death or injury arising from negligence or otherwise caused directly or indirectly by or arising out of the use or condition of Goods sold to you, except to the extent that such loss, damage, death or injury has been caused by us.
13. SEVERANCE
If any provision of this Contract or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall, so far as possible, be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of this Contract shall not in any way be affected or impaired.
14. VARIATION AND ASSIGNMENT
These terms may be varied and updated by us from time to time. When you offer to purchase Goods from us, you are offering to acquire them on the most up-to-date version of these terms as notified to you by us. You may not assign your rights under this Contract without our prior written consent.
15. GOVERNING LAW
This Contract is governed by the law of the State of Victoria. You and we submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia.
16. GST AND OTHER TAXES AND DUTIES
Notwithstanding any other clause in this Contract, to the extent that any supply made under or in connection with this Contract is a taxable supply (as defined by the GST Law), you must pay to us, in addition to the consideration provided for under this Contract for that supply (unless it expressly includes GST) an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. You are responsible for paying any other duties, taxes or charges, including any stamp duty (if applicable), in relation to the Goods.
17. WAIVER
Waiver by us of a breach of this Contractor of any right or power arising on a breach of this Contract must be in writing and signed by us. A right or power created or arising on a breach of this Contract is not waived by any failure to exercise or delay in exercising, or a partial exercise of, that or any other right or power.
18. NO RIGHT TO OFFSET
No amount owing, whether present or future, actual, contingent or prospective and on any account whatsoever by you to us may be offset against any amount owing whether present, future, actual, contingent or prospective of you to us hereunder or on any other account whatsoever.
19. INTELLECTUAL PROPERTY
The purchase of Goods under this Contract does not confer on you any licence or assignment of any copyright, patent, design or trade mark, or any other intellectual property right (whether registered, registrable or not) that subsists in the Goods.