Terms and Conditions of Sale - 31 July 2022
1.1 In these terms and conditions: "Purchaser" means the party named on the seller’s invoice and "Seller" means Timber Log Buildings Australia Pty Ltd ACN 34 631 692 647
1.2 “Contract” means the agreement of the Seller to supply goods and/or services to the Purchaser for an agreed price payable by the Purchaser.
1.3 “Goods”, “Services”, “Building Materials”, “Materials”, “Building” and “Cabins” mean items supplied by the Seller
2. Binding Terms and Conditions
2.1 The only terms, which are binding upon the Seller, are those set out in these Terms and Conditions of Sale or agreed to in writing by the Seller and those that are imposed by law that cannot be excluded.
2.2 The Seller and the Purchaser have entered into the Contract which includes terms and conditions without relying on any representation by the other or any person purporting to represent the other.
3. Price, Quotation and Ordering
3.1 The Seller reserves the right to accept or reject in its absolute discretion any order received. Acceptance of an order is communicated and effected by confirmation from the Seller to the Purchaser in writing. Subject to the provisions of these terms and conditions on acceptance of the order, the Seller must supply the goods and / or services at the price agreed.
3.2 Any variations to the specifications by the purchaser must be in writing and signed by both parties. Once manufacturing has been scheduled, no variations to the specifications or colours can be made.
4. Price Adjustments and GST
4.1 Any order placed by the Purchaser and accepted by the Seller is subject to price adjustments due to:
a. Price changes incurred by the seller as a result of a change in the supply price of materials, fluctuations in currency exchange rates, shipping costs and the like
b. Changes in engineering or other requirements to comply with updates to the NCC (National Construction Code)
4.2 In the case of a price adjustment due to clause 4.1 above a minimum of 7 days’ notice shall be given of the “Price Adjustment Date”.
4.3 A price adjustment shall apply where, due to any action or non-performance by the Purchaser, the Seller is unable to schedule manufacturing prior to the Price Adjustment Date. Where the price adjustment is applied, it will be referenced as a variation on the final payment tax invoice.
4.4 Following scheduling of manufacture, the price adjustment shall be applied where due to any action or non-performance by the Purchaser, the Seller is unable to complete manufacturing and/or arrange for delivery or collection.
4.5 The GST allowed for is as quoted in the documentation. Should the GST amount alter, then an adjustment shall be applied to the purchase price for the remaining payments or the whole amount, as determined applicable by the Australian Tax Office.
5. Deposit, Payment and Scheduling of Manufacturing – Custom Cabins ordered by the Purchaser
5.1 The Seller will deduct all payments for plans and drawings paid by the Purchaser from the invoice for the goods and / or services purchase.
5.2 If an order by the Purchaser is accepted the Seller will raise an invoice and send it to the Purchaser.
5.3 The Seller, in its absolute discretion, shall not schedule manufacturing until all documentation has been completed and returned by the Purchaser, 50% payment has been received by the Seller and any conditions of the purchase have been notified to the Seller by the Purchaser as having been met or waived. Delivery times are a minimum of 3 months subject to the location of the Purchaser’s building site, the availability of components, raw materials, shipping space and similar conditions beyond the control of the Seller.
5.4 The Purchaser agrees that should they cancel the order, then the Seller will retain:
a. If manufacturing has not been scheduled with the manufacturer, 20% of the purchase price in consideration of administrative and planning costs.
b. If manufacturing has been scheduled with the manufacturer, 25% of the contract price, plus the cost of materials manufactured, but not exceeding the value of the contract.
5.5 All payments must be made by Direct Deposit.
5.6 If for any reason the Purchaser is unable to complete the contract within 12 months of the contract date, then at the Seller's discretion, the contract shall be at an end and all monies paid by the Purchaser shall be forfeited.
6. Deposit, Payment and Delivery - Stock Cabins ordered by the Purchaser
6.1 If an order by the Purchaser is accepted the Seller will raise an invoice and send it to the Purchaser.
6.2 In instances where the Seller has stock in Australia, the Seller, in its absolute discretion, shall not schedule delivery or construction (where applicable) until all documentation has been completed and returned by the Purchaser, 50% payment has been received by the Seller and any conditions of the purchase have been notified to the Seller by the Purchaser as having been met or waived.
The Seller will not deliver any goods and / or services unless having been paid in full at least 5 working days before the scheduled delivery date. Delivery times vary according to the Purchasers’ location. The Seller undertakes to effect goods and / or services in the shortest possible time.
6.3 The Purchaser agrees that should they cancel the order, then the Seller will retain 10% of the purchase price in consideration of administrative and planning costs
6.4 All payments must be made by Direct Deposit.
6.5 If for any reason the Purchaser is unable to complete the contract within 12 months of the contract date, then at the Seller's discretion, the contract shall be at an end and all monies paid by the Purchaser shall be forfeited.
6. Interest and Costs for Late Payment
6.1 The Purchaser acknowledges that for all custom cabins ordered once manufacturing has been scheduled with the manufacturer, the delivery/collection date cannot be changed.
6.2 If the Purchaser defaults in making payment to the Seller in accordance with these terms and conditions the Seller may in its absolute discretion charge the Purchaser any price increases, storage fees and 1.5% per month interest, from the date on which the default arose; and require the Purchaser to reimburse the Seller for all collection costs including legal costs incurred by the Seller associated with the reimbursement for late payment.
7. Termination for Non-Payment
7.1 In addition to its other rights at law, the Seller may suspend further deliveries or terminate the contract by notice in writing to the Purchaser, if the Purchaser defaults in payment of any amount due.
8. Delivery Restrictions, Delivery Date and Storage Fees
8.1 Any delivery is subject to the site being accessible by a suitable transport delivery vehicle via sealed roads. Should the driver determine that the site is not accessible, then at the driver’s discretion, the goods shall be either:
a. unloaded as close to the property as possible for the client to move to site (often called “kerbside”); or
b. returned to depot for the Purchaser to collect. Any delivery fee charged shall still apply.
8.2 The Purchaser agrees to pay the cabin transport costs incurred by the Seller after delivery at the Seller’s quote
8.3 The scheduled delivery date is an estimate only, and the Seller is not liable for any loss, damage or expense resulting from a delay in delivery whether caused by the Seller or otherwise.
8.4 In the event goods are completed as per delivery schedule and not able to be delivered, unless arranged prior to manufacture, then a storage fee equal to the greater of $250 plus GST or 1% of the purchase price per week shall be payable prior to collection or delivery for each week or part thereof that the collection or delivery is delayed subject to size and period of storage.
8.5 Storage facilities are sometimes outside and / or semi undercover and the Purchaser accepts all responsibility for any damage and / or deterioration of the goods.
9. Acceptance of Goods and / or Services by Purchaser
9.1 At the time of taking possession of the goods, it is the Purchaser's responsibility to ensure that all materials nominated on the delivery dockets are supplied and that they are in a satisfactory condition. Any damage or short supply must be marked on the delivery dockets and signed by the driver/dispatch supervisor.
9.2 Except for materials described in 9.3, the Purchaser must give written notice to the Seller within five (5) days of any particulars of the claim that the materials are not in accordance with specifications or have not been fully supplied as listed in the bill of materials provided by the Seller to the Purchaser.
9.3 The Seller or its representatives must be given a reasonable opportunity to inspect materials where any notice is given. If the Purchaser fails to give that notice or provide a reasonable opportunity of inspection, then to the extent permitted by statute the materials are deemed to have been accepted by the Purchaser.
10. Retention of Title
10.1 The ownership of the goods supplied pursuant to this PA remains vested in the Seller and shall not pass from the Seller until all other monies due and owing by the Purchaser are paid and the goods have been delivered.
11. Returns of Custom Cabins ordered by the Purchaser
11.1 Subject to the contract all custom cabins are manufactured to the Purchaser's specific requirements, sizes and / or specifications and will not be accepted for return under any circumstances.
12. Risk and Insurance
12.1 Goods supplied by the Seller are at the Purchaser's risk immediately on delivery to the Purchaser or into the Purchaser's custody (whichever is the sooner).
13. Purchaser Responsible for Specifications
13.1 The Seller will not be liable for any error, omission or inaccuracy in drawings or specifications provided by the Purchaser and is under no obligation to check or confirm the conformity, accuracy or adequacy of patents, drawings or specifications provided by the Purchaser.
14. Warranty and Exclusion of Liability
14.1 The Seller acknowledges that the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) contains certain guarantees for the supply of goods or services that cannot be excluded, restricted or modified by these Terms and Conditions of Sale. For example, for consumers:
a. Goods come with non-excludable guarantees that they are of acceptable quality and fit for the purpose for which they are commonly acquired or for a purpose made known to the Seller and based on which the goods are supplied.
b. Services come with non-excludable warranties that they will be provided with due care and skill and are fit for the purpose for which they are commonly acquired or for a purpose made known to the Seller and based on which the services are supplied.
14.2 Nothing in these Terms and Conditions of Sale is intended to exclude or restrict the application of such laws.
14.3 To the extent permitted by law the Purchaser agrees that the Seller’s liability for a failure to comply with a consumer guarantee that the Customer may have the benefit of under the Australian Consumer Law (other than in relations to sections 51, 52 or 53), is limited to, any one or more of the following:
a. in the case of goods: the replacement of the goods; the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
b. in the case of services: the resupply of services or paying for the cost of resupplying the services.
14.4 Subject to this clause, and to the maximum extent permitted by the Australian Consumer Law and all other applicable Law, the Seller is not liable to the Customer or to any third party for (including without limitation):
a. any loss, cost, damage, expense, claim, demand, action, suit, proceeding (including without limitation for damage to the goods or injury or death to any person) of any kind caused by or resulting from any act or omission of the Purchaser or that third party or any of their employees, agents, contractors arising from:
i. the loading, unloading or delivery of the goods;
ii. a failure to deliver, or delay in delivering, the goods;
iii. a failure to install the goods in accordance with the Seller’s recommendations as provided to the Purchaser;
iv. the removal of defective goods or the installation of replacement goods; or
v. the use of any tool or equipment loaned or hired out or otherwise recommended by the Seller;
b. any loss, cost, damage, liability, expense, claim, demand, action, suit, proceeding, injury or death sustained or incurred by the Purchaser or any third party, including without limitation any loss of profits, or economic, special, direct, indirect or consequential loss or damage, whether resulting directly or indirectly out of the supply, performance or use of any goods or out of any breach by the Seller in relation to these Terms and Conditions of Sale, even if notified of the possibility of that potential loss or damage;
c. any claim, action or proceeding by a third party against the Purchaser (or any loss, damages or liability incurred or suffered by the Purchaser as a result of any such claim, action or proceeding).
15. Building Regulations
15.1 The Purchaser acknowledges that the Seller is NOT a licensed builder. The building is to be erected in accordance with the plans, specification and construction manual available (if any) from the Seller or as otherwise advised by the engineer. It is the Purchaser's responsibility to ensure that the construction of the building is carried out in accordance with good building practice. The Seller will not be responsible in any circumstances for defects in construction methods adopted by the Purchaser or the Purchaser's builder during the erection of the building.
15.2 No warranty is given by the Seller as to compliance of the buildings with any building code or regulations in any jurisdiction. All buildings are designed as class 10 buildings unless specifically nominated otherwise.
16. Force Majeure
16.1 If a party is prevented from or delayed in complying with an obligation (other than to pay money) by an event beyond its reasonable control, performance by it of that obligation is suspended during the time and to the extent that compliance is prevented or delayed.
17.1 A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.
17.2 The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
17.3 A waiver is not effective unless it is in writing.
17.4 Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
18.1 A notice given under this Agreement ("Notice") must be in writing and either sent by email, prepaid post, facsimile or hand delivered.
19.1 The Purchaser agrees and consents to the release of any of the Purchaser's personal information to everyone involved in the sale and purchase of the goods being purchased including, without limitation, any agent of the Seller.
20.1 This Agreement is governed by the laws of the State of Queensland
20.2 Each of the parties irrevocably submits to the jurisdiction of the Courts of Queensland.
21.1 If any provision of these Terms and Conditions of Sale is held by a Court to be unlawful, invalid, and unenforceable or in conflict with any rule of law, statute, ordinance or regulation, the validity and enforceability of the remaining provisions will not be affected and the offending provision will be removed from these Terms and Conditions of Sale