Terms & Conditions

1. Definitions
1.1 Seller shall mean Furnco Pty Ltd T/A Dynafurn and its successors and assigns.
1.2 Purchaser shall mean the Purchaser or any person acting on behalf of and with the authority of the Purchaser.
1.3 Guarantor means that person (or persons), or entity who agrees herein to be liable for the debts of the Purchaser on a principal debtor basis.
1.4 Goods shall mean Goods supplied by the Seller to the Purchaser (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 Services shall mean all services supplied by the Seller to the Purchaser and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 Price shall mean the cost of the Goods as agreed between the Seller and the Purchaser subject to clause 4 of this contract.

2. Acceptance
2.1 Any instructions received by the Seller from the Purchaser for the supply of Goods and/or the Purchasers acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Purchaser has entered into this agreement, the Purchasers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Purchaser the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
2.4 None of the Sellers agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.5 The Purchaser undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Purchasers name and/or any other change in the Purchasers details (including but not limited to, changes in the Purchasers address, facsimile number, or business practice).
2.6 If the Purchaser is a corporation the Seller may, at its discretion, require that the directors or any other person must give a guarantee and indemnity in the form required by the Seller. The Seller also reserves the right to require a guarantee and indemnity to be given by any person in any other circumstances. If a guarantee is required by the Seller this agreement is subject to and conditional upon the satisfactory execution of the Sellers guarantee and indemnity.

3. Goods
3.1 The Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Purchaser.

4. Price And Payment
4.1 At the Sellers sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Seller to the Purchaser in respect of Goods supplied; or
(b) the Sellers current Price, at the date of delivery of the Goods, according to the Sellers current Price list; or
(c) the Sellers quoted Price (subject to clause 4.2) which shall be binding upon the Seller provided that the Purchaser shall accept in writing the Sellers quotation within thirty (30) days.
4.2 The Seller may by giving notice to the Purchaser (verbally or otherwise) at any time before delivery increase the Price of the Goods to reflect any variation from the plan of scheduled works or specifications beyond the reasonable control of the Seller.
4.3 At the Sellers sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
4.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.5 The Seller may withhold delivery of the Goods until the Purchaser has paid for them, in which event payment shall be made before the delivery date.
4.6 At the Sellers sole discretion, payment for approved Purchasers shall be due thirty (30) days following the end of the month in which the Goods are delivered.
4.7 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Purchaser and the Seller.
4.8 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
4.9 Prices are based on ruling wage rates, raw material costs, customs costs, tariffs, exchange rates, freight rates, insurances and charges and may be adjusted by the Seller without notice from time to time. Unless otherwise stipulated the Seller reserves the right to charge prices prevailing at the time of delivery.

5. Delivery Of Goods / Services
5.1 (a) The Purchaser shall pay all freight and other charges associated with the delivery, unless otherwise stated in writing.
(b) Delivery of the Goods shall be made to the Purchasers address. The Purchaser shall
make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Purchaser at the Sellers address.
5.2 Delivery of the Goods to a carrier, either named by the Purchaser or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Purchaser, is deemed to be a delivery of the Goods to the Purchaser.
5.3 The Seller may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.4 Delivery of the Goods to a third party nominated by the Purchaser is deemed to be delivery to the Purchaser for the purposes of this agreement.
5.5 The Purchaser shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.6 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.7 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.

6. Risk
6.1 If the Seller retains property in the Goods nonetheless, all risk for the Goods passes to the Purchaser on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Purchaser, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Seller is sufficient evidence of the Sellers rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

7. Purchasers Disclaimer
7.1 The Purchaser hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Purchaser acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Purchaser and shall not be transferable to any subsequent Purchaser.

8. Warranty
8.1 For Goods not manufactured by the Seller, unless otherwise stated the Seller warrants that the Goods shall be free from defects in manufacture for a period of 12 months from the manufacture date. At the Sellers discretion some Goods may be supported with a longer warranty according to the warranty provided by the original manufacturer of the Goods. The forgoing warranty only applies if the Purchaser is not in default in accordance with these terms and conditions of trade.
8.2 In the case of second hand Goods, the Purchaser acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

9. Defects / Returns
9.1 The Purchaser shall inspect the Goods on delivery and shall within five (5) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Purchaser shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Purchaser believes the Goods are defective in any way. If the Purchaser shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
9.2 For defective Goods, which the Seller has agreed in writing that the Purchaser is entitled to reject, the Sellers liability is limited to either (at the Sellers discretion) replacing the Goods or part thereof or repairing the Goods or part thereof provided that:
(a) the Purchaser has complied with the provisions of clause 9.1;
(b) the Goods are returned at the Purchasers cost within five (5) days of the delivery date;
(c) the Seller will not be liable for Goods which have not been stored or used in a proper manner;
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
(e) The Purchaser agrees that custom made or non-stock goods produced/manufactured on the Purchasers instruction; goods altered or damaged by the Purchaser are not acceptable for return or credit.
9.3 The Seller may (in its discretion) accept the Goods for credit but this may incur a handling fee of 10% of the value of the returned Goods plus any freight.

10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

11. Intellectual Property & Tooling
11.1 Where the Seller has designed or drawn Goods for the Purchaser, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Purchaser at the Sellers discretion.
11.2 The Purchaser warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Purchasers order.
11.3 Any dies, tools and other equipment which the Seller makes or obtains in order to produce the goods shall, unless otherwise stated, be the property of the Seller and any tooling contribution amount paid by the Purchaser in relation to them shall be deemed to be a charge in respect to design, know how, trial runs and maintenance. If the Purchaser does not place orders to use the dies, tools and equipment for three years, the Seller is entitled to scrap or utilise them.

12. Default & Consequences Of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
12.2 If the Purchaser defaults in payment of any invoice when due, the Purchaser shall indemnify the Seller from and against all the Sellers costs and disbursements including on a solicitor and own client basis and in addition all of the Sellers nominees costs of collection.
12.3 Without prejudice to any other remedies the Seller may have, if at any time the Purchaser is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Purchaser and any of its other obligations under the terms and conditions. The Seller will not be liable to the Purchaser for any loss or damage the Purchaser suffers because the Seller exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the Goods or Services an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
12.5 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Sellers opinion the Purchaser will be unable to meet its payments as they fall due; or
(b) the Purchaser 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 Purchaser or any asset of the Purchaser, then without prejudice to the Sellers other remedies at law:
(i) the Seller shall be entitled to cancel all or any part of any order of the Purchaser which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Seller shall, whether or not due for payment, immediately become payable in addition to the interest payable under clause 12.1 hereof.

13. Title
13.1 It is the intention of the seller and agreed by the Purchaser that property in the Goods shall not pass until:
(a) The Purchaser has paid all amounts owing for the particular Goods, and
(b) The Purchaser has met all other obligations due by the Purchaser to the Seller in respect of all contracts between the Seller and the Purchaser, and that where practicable the Goods shall be kept separate until the Seller shall have received payment and all other obligations of the Purchaser are met.
13.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Sellers ownership of rights in respect of the Goods shall continue.
13.3 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the Seller to the Purchaser the Seller may give notice in writing to the Purchaser to return the Goods or any of them to the Seller. Upon such notice the rights of the Purchaser to obtain ownership or any other interest in the Goods shall cease.
(b) The Seller shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(c) If the Purchaser fails to return the Goods to the Seller then the Seller or the Sellers agent may enter upon and into land and premises owned, occupied or used by the Purchaser, or any premises as the invitee of the Purchaser, where the Goods are situated and take possession of the Goods.
(d) The Purchaser is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Purchaser shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller.
(e) The Purchaser shall not deal with the money of the Seller in any way which may be adverse to the Seller.
(f) The Purchaser shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
(g) The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Purchaser to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
(h) The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Purchaser.
(i) Until such time that ownership in the Goods passes to the Purchaser, if the Goods are so converted, the parties agree that the Seller will be the owner of the end products.

14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) Where the Purchaser and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Purchaser and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Sellers nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Purchaser and/or the Guarantor acknowledge and agree that the Seller (or the Sellers nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Purchaser and/or Guarantor shall indemnify the seller from and against all the Sellers costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Purchaser and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Sellers nominee as the Purchasers and/or Guarantors true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Seller and/or the Sellers nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Purchaser and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Purchasers and/or Guarantors name as may be necessary to secure the said Purchasers and/or Guarantors obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Sellers absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.

15. Cancellation
15.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellation. 15.2 At the Sellers sole discretion the Purchaser may cancel delivery of Goods. In the event that the Purchaser cancels delivery of Goods the Purchaser shall be liable for any costs incurred by the Seller up to the time of cancellation.

16. Privacy Act 1988
16.1 The Purchaser and/or the Guarantor/s agree for the Seller to obtain from a credit-reporting agency a credit report containing personal credit information about the Purchaser and Guarantor/s in relation to credit provided by the Seller.
16.2 The Purchaser and/or the Guarantor/s agree that the Seller may exchange information about Purchaser and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Purchaser;
(b) To notify other credit providers of a default by the Purchaser;
(c) To exchange information with other credit providers as to the status of this credit account, where the Purchaser is in default with other credit providers; and
(d) To assess the credit worthiness of Purchaser and/or Guarantor/s.
16.3 The Purchaser consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Purchaser agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Purchaser and Seller or required by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and/or Goods by the Seller, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Purchasers credit, payment and/or status in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Purchaser; and
(e) enabling the daily operation of Purchasers account and/or the collection of amounts outstanding in the Purchasers account in relation to the Services and Goods.
16.5 The Seller may give, information about the Purchaser to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Purchaser; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Purchaser.

17. Unpaid Sellers Rights To Dispose Of Goods
17.1 In the event that:
(a) the Seller retains or regains possession or control of the Goods; and
(b) payment of the Price is due to the Seller; and
(c) the Seller has made demand in writing of the Purchaser for payment of the Price in terms of this contract; and
(d) the Seller has not received the Price of the Goods, then, whether the property in the Goods has passed to the Purchaser or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Purchaser the loss to the Seller on such disposal.

18. General
18.1 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.
18.2 All Goods supplied by the Seller are subject to the laws of New South Wales and the Seller takes no responsibility for changes in the law which affect the Goods supplied.
18.3 The Seller shall be under no liability whatever to the Purchaser for any indirect loss and/or expense (including loss of profit) suffered by the Purchaser arising out of a breach by the Seller of these terms and conditions.
18.4 In the event of any breach of this contract by the Seller the remedies of the Purchaser shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
18.5 The Purchaser shall not set off against the Price amounts due from the Seller.
18.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Purchasers consent.
18.7 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the seller notifies the Purchaser of such change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.