Terms and Conditions | Bituminous Products
The supply of goods and/or the performance of services by Bituminous Products Pty Ltd (“we” or “us” or “our”) to all its customers (“you”) is offered only and exclusively on the following terms and conditions. By requesting, ordering or otherwise permitting us to supply goods to or perform services for you, you hereby accept irrevocably and unconditionally our offer without derogation or qualification.
Mandatory Repair Notices
As per the Competition and Consumer Act 2010, please note the following Mandatory Repair Notices required by law:
(a) Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods.
(b) Repair of goods may result in loss of data.
In these conditions:
“Conditions” means these Terms and Conditions;
“Customer” or “you” means a person, firm or corporation, jointly and severally if more than one, that requests goods or services from us;
“goods” means all products and other goods (including any software) supplied by us to you or on your behalf;
“including” is not a word of limitation and means without limitation;
“services” means all services performed by us for you or on your behalf;
“business hours” means Monday to Friday 8am to 5pm at your local time, excluding gazetted public holidays;
“Bituminous Products” or “we” or “us” or “our” means Bituminous Products Pty Ltd (ABN 19 106 887 094); and
“Party” and “Parties” means (severally and not jointly) Bituminous Products and/or the Customer as the context requires.
2.0 Basis of Contract
2.1 Unless otherwise agreed by us in writing, these Conditions apply to every supply of goods and provision of services by us to you and cannot be varied, amended or supplemented by any other terms or conditions without our prior written consent.
2.2 Any written quotation provided by us to you concerning the proposed supply of goods or services is valid for 30 days and is an invitation only to you to place an order based upon that quotation. These Conditions may be supplemented by additional terms in our quotation which are not inconsistent with these Conditions.
3.0 Charges and Payment
3.1 Payment for goods and services must be made by cash or credit card on or prior to the supply of the goods or the performance of the services unless you have a credit account with us. Credit card payments will attract a Merchant Service Fee (MSF) of 0.97% for Visa or MasterCard and 2.97% for American Express.
3.2 All our visits are chargeable and are charged in quarter hour units after the first hour. Any part thereof is chargeable at the same rate as a full quarter hour.
3.3 All goods supplied by us are charged separately from the services.
3.4 Where there is any change in the costs incurred by us in relation to the goods or services, we may vary our price for goods or services on order to take account of any such change, without giving notice to you.
3.5 We do not charge call out fees.
3.6 Surcharges may be applied on same day and/or outside business hours visits.
3.7 If you nominate and are approved for the good(s) or service(s) you have purchased to be invoiced, you may be charged an account fee per invoice issued. This fee will be advised in advance.
3.8 If you exceed your approved credit terms, you will be charged a $10.00 late payment fee. A revised invoice will be sent to you.
4.0 Payment Default
4.1 If you default in the payment by the due date of any amount payable to us, or if any cheque drawn by you is dishonoured, then all money which is then due as well as all monies that are payable by you to us at a later date on any account, shall be due and payable immediately without the requirement of any notice to you, and we may, without prejudice to any other right or remedy available to us:-
(a) charge you interest on any sum due at the rate of 2% above the corporate reference rate of our principal banker. This interest shall be calculated daily and compounded every 30 days for the period from the due date until the date of payment in full; and
(b) charge you for all expenses and costs (including debt collection commission and fees, legal costs on a full indemnity basis and dishonoured cheque fees) suffered or incurred by us resulting from the default, including taking whatever action we deem appropriate to recover any amounts due (which, for the avoidance of doubt, shall include engaging Dun & Bradstreet or other debt collection agency to seek to recover the amounts due); and
(c) cease or suspend for such period as we think fit, supply of any further goods or services to you; and
(d) by notice in writing to you, terminate any contract with you so far as unperformed by us; without effect on our accrued rights under this or any other any contract.
4.2 Clause 4.1 may also be relied upon, at our option:
(a) where you are an individual, you become bankrupt or enter into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally; or
(b) where you are a corporation, you enters into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally, or you have a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, your liquidation (including provisional liquidation), winding up or dissolution without winding up.
5.0 Passing of Property
5.1 Until full payment in cleared funds is received by us for all goods supplied by us to you, as well as all other amounts owing to us by you:
(a) title and property in all goods remains vested in us and does not pass to you;
(b) you must hold the goods as fiduciary bailee and agent for us;
(c) you must keep the goods separate from your other goods and maintain the labelling and packaging of the goods;
(d) you hereby undertake to us to hold the proceeds of any sale of the goods on trust for us in a separate account, however any failure to do so will not affect your obligation to deal with the proceeds as our trustee;
(e) we may, without notice, enter any premises where we suspect the goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of us, and for this purpose you irrevocably license us to enter such premises and shall also indemnify us and hold us harmless from and against all costs, claims, demands or actions by any party arising from such action.
6.0 Risk and Insurance
The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods shall pass to you immediately upon delivery of the goods to the premises nominated by you.
7.0 Performance of contract
7.1 Any period or date for delivery of goods or provision of services stated by us is intended as an estimate only and is not a contractual commitment. We will use our reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services.
7.2 Whilst every attempt will be made to perform the repairs onsite, it may be necessary to return your system to our base or third party for diagnosis and repair.
8.0 Bituminous Products Warranties
8.1 If we cannot provide you with a solution to your problem, we will not charge you for those services in respect of that problem (No Fix, No Fee Guarantee).
8.2 We shall honour all terms (if any) that are implied under applicable State and Commonwealth laws concerning the supply of the goods and/or the performance of the services and nothing in this clause 8 seeks to restrict, modify or exclude such terms. Our express warranty and guarantee are in addition to and do not affect your statutory rights and remedies.
9.0 Customer’s Responsibilities
9.1 You shall be solely responsible for all data inputs, the manner of use of the goods by all those to whom it provides access and all outputs derived, and all other results of such processing.
9.2 You shall comply, at your own expense, with any recommendations and guidelines with respect to the use of the goods, including any adjustments or replacements required in respect of equipment and software that is incidental or collateral to the use of the goods.
9.3 You shall ensure that your operators are adequately trained and informed as to the use of the goods and shall comply with guidelines and procedures supplied by us and/or any third party manufacturer from time to time.
9.4 You shall promptly report errors or faults in the operation of any aspect of the goods or any provision of the services in accordance with applicable fault reporting procedures from time to time.
9.5 You shall perform general “housekeeping”, testing, adjustment and/or maintenance as recommended by us in respect of any goods supplied by us in order to maximise the availability of and performance of the goods or permit performance by us of any of our obligations hereunder.
9.6 You agree to exercise due care and carry out such precautions which may be recommended by us or otherwise required as a matter of prudence in connection with the performance by us of any of our obligations hereunder, for example, but without limiting the generality of the foregoing, advising your staff of system restarts or scheduled downtime, recording of error information, and will co-operate with other system administration activities such as, but not limited to, running diagnostic tests and operational readiness tasks.
9.7 You represent and warrant to Bituminous Products that you are the owner of, and/or have the right to be in possession of and make decisions regarding, all data, media or equipment (“Data”) provided to Bituminous Products, and that you have obtained all necessary consents required under the Privacy Act 1988 (Cth) in relation to the disclosure of personal information by you to Bituminous Products and to the use of that personal information by Bituminous Products, and that your collection, possession, processing and transfer of such Data is in compliance with data protection and privacy laws to which you are subject. You indemnify Bituminous Products from any expense (including reasonable legal fees), damage or liability arising out of any claim, demand or suit resulting from a breach of your warranties.
10.1 To the full extent permitted by applicable law, all conditions, warranties, representations, indemnities and guarantees with respect to the goods and/or the services, or other goods or services that may be provided by Bituminous Products under these Conditions, that may otherwise be implied by statute, law, equity, trade custom, prior dealings between the Parties or otherwise (including, but not limited to, any implied warranty of merchantability, fitness for particular purpose, quiet enjoyment or non-infringement) are hereby expressly excluded.
10.2 Except to the extent specifically provided in these Conditions, our sole liability to you for any and all breaches of any term or terms of these Conditions, whether express or implied, shall be limited to:
10.2.1 subject to sub-clauses 10.2.2 and 10.2.3, the aggregate amount of the fees and charges paid by you under these Conditions as at the date of the breach;
10.2.2 in relation to goods if supplied to you as a consumer (as defined in the Trade Practices Act 1974):
(a) the replacement of the goods or the supply of equivalent goods; or
(b) payment of the cost of replacing the goods or acquiring equivalent goods; or
(c) the repair of the goods or payment of the cost of having the goods repaired,
as in each case we may elect; and
10.2.3 in relation to services if supplied to you as a consumer (as defined in the Trade Practices Act 1974):
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again,
as in each case we may elect.
10.3 In no event shall we be liable to you or to any third party under or in connection with these Conditions or in respect of the use of (or failure or performance of) the goods or the supply of the services for:
10.3.1 malfunctions or failures caused directly or indirectly by:
(a) any third party;
(b) our actions that were expressly or impliedly authorised by you, or by your employees or agents;
(c) accident, misuse or abuse by anyone other than us;
(d) alteration or modification of the goods by anyone other than us;
(e) products (including any hardware or software) not licensed or supplied by us that are attached to or used with the goods;
(f) your failure to provide a proper operating and working environment for the goods;
(g) damage during any movement, relocation or re-installation of the goods;
(h) power surge or failure,
(i) acts of God or acts outside our reasonable control;
(j) any other condition not arising under normal operating conditions; or
(k) normal wear and tear; or
10.3.2 any loss or damage of any nature arising or caused directly or indirectly by any breach of your obligations or responsibilities set out in these Conditions.
10.4 Any replacement of parts under warranty will be carried out at the premises nominated by us. The cost and risk of transport of any defective part to the nominated premises is your responsibility.
10.5 In no event will we be liable to you or to any third party under or in connection with these conditions or in respect of the use of (or failure or performance of) the goods or the supply of the services for:
10.5.1 any loss of profit, business interruption, loss of or damage to goodwill, and/or any expectation benefit;
10.5.2 your liability to any third party; or
10.5.3 incidental, consequential, special, exemplary or punitive damages of any nature, howsoever arising or caused, including without limitation the breach of these Conditions or any expiration or termination of these Conditions, whether such liability is asserted on the basis of statute, contract, tort (including negligence or strict liability), equity or otherwise, even if we have been advised of the possibility of such loss or damage.
10.6 We will not be liable for any loss or damage suffered by you where we have failed to meet any delivery date or cancelled or suspended the supply of goods or services.
10.7 Nothing contained in these Conditions excludes, restricts or modifies any:
10.7.1 implied condition, warranty or other implied obligation in relation to these Conditions or the goods and services where pursuant to applicable law to do so is unlawful or void; or
10.7.2 liability for fraud or deceit; or
10.7.3 liability for death or personal injury caused by the negligence of either Party.
11.1 If, through circumstances beyond our reasonable control, we are unable to effect delivery or provision of goods or services, then we may cancel your order (even if it has already been accepted) by notice in writing to you.
11.2 If you give us less than twenty-four (24) hours notice to cancel any request for on-site service, then we may charge a cancellation fee equal to the first hour of service at the rates quoted at the time of booking for the loss and expense caused.
12.0 Entire Agreement
12.1 To the extent permitted by law, in relation to its subject matter, these Conditions:
12.1.1 embody and constitute the entire legal and contractual relationship of the Parties, including the entire terms agreed by the Parties; and
12.1.2 supersede, replace and terminate by mutual consent any prior written or oral representations, negotiations, understandings, agreements or contracts between the Parties.
13.0 Governing law
13.1 This Agreement is governed by and must be construed according to the law applying in New South Wales. The Parties hereby irrevocably submit to the jurisdiction of the courts of New South Wales.