1. Definitions

1. “Seller” means The Barn Office Furniture (Granville) Pty Ltd ACN 108 458 206 and its successors and assigns.

2. “Buyer” means the person or entity purchasing the Goods from the Seller or any person acting on behalf of and with the authority of the Buyer.

3. “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer on a principal debtor basis.

4. “Goods” means the goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).

5. “Services” means all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).

6. “Price” means the price of the Goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.

7. “Terms and Conditions” means these terms and conditions, as amended from time to time..

2. Acceptance

1. Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller will constitute acceptance of the Terms and Conditions.

2. Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.

3. None of the Seller’s 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 to the extent permitted by law.

4. The Buyer undertakes to give the Seller not less than fourteen (14) days written notice prior to any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number, or business practice).

5. Goods are supplied by the Seller subject to the Terms and Conditions and to the exclusion of anything to the contrary in the terms of the Buyer’s order notwithstanding that any such order is placed on terms that purport to override the Terms and Conditions.

3. Goods

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 Buyer.

4. Price And Payment

1. The Price shall be the price agreed between the Buyer and the Seller and indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied.

2. At the Seller’s sole discretion, the Buyer may be required to pay a deposit for the Goods. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and is immediately due and payable.

3. Time for payment for the Goods is of the essence and will be stated on the invoice, quotation or any other order forms as provided by the Seller to the Buyer.  If no time is stated, payment is due and payable on delivery of the Goods.

4. The Seller may withhold delivery of the Goods until the Buyer has paid for them in full.

5. At the Seller’s sole discretion, payment for approved Buyers may be made by instalments in accordance with the Seller’s delivery/payment schedule.

6. At the Seller’s sole discretion, for certain approved Buyers payment will be due thirty (30) days following the date of the invoice.

7. Payment must be made by cash on delivery, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three percent (3%), or by direct credit, or by any other method as agreed to between the Buyer and the Seller.

8. The Price is GST inclusive unless otherwise stated.

5. Delivery Of Goods / Services

1. Delivery of the Goods will be made to the Buyer’s address as provided to the Seller at the time of the order. The Buyer must make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.  Where the Buyer does not make prior arrangements in relation to delivery of the Goods, delivery of the Goods to the Buyer will be deemed to have been made at the Seller’s address.

2. The Buyer is responsible for ensuring suitable vehicle access is arranged to enable the Seller to deliver the Goods to the Buyer’s address and must inform the Seller prior to delivery of any access restrictions.

3. The Buyer is responsible for ensuring suitable access to lifts is arranged to enable the Seller to deliver the Goods (including booking the lift if necessary) and must inform the Seller prior to delivery of the size of the lift.

4. To the extent permitted by law, the Seller is not liable for any loss or damage due to failure or delay in delivery of the Goods.

6. Risk

1. Risk in the Goods passes to the Buyer on delivery.

2. If any of the Goods are damaged or destroyed prior to title passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies (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 Terms and Conditions.  The production of the Terms and Conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

7.    Buyer’s Disclaimer

1. To the extent permitted by law, the Buyer 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 Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgement.

8.    Defects / Returns

1. The Buyer must inspect the Goods on delivery and must within three (3) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.  Upon such notification, the Buyer must provide the Seller with an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way.  

2. To the extent permitted by law, the Seller will not accept return of the Goods unless the following are met:

1. the Buyer has complied with the provisions of clause 8.1 and the Seller determines that the Goods are defective after inspection in accordance with clause 8.1;

2. the Goods are returned at the Buyer’s cost within seven (7) days of the delivery date;

3. the Buyer has not incorrectly stored or used the Goods in an improper manner;

4. 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.

8.3    The Seller may (in its sole 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.

9.    Limitation of Liability

9.1    The liability of the Seller in respect of a breach of a consumer guarantee or any warranty made under the Terms and Conditions for any Goods not of a kind ordinarily acquired for personal, domestic or household use is limited, to the extent permitted by law and at the option of Seller to:

(a)      replacing the Goods or the supply of equivalent Goods;

(b)      the repair of the Goods;

1. the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or

2. the payment of the cost of having the Goods repaired.

9.2    To the extent permitted by law, all other warranties whether implied or otherwise, not set out in the Terms and Conditions are excluded and Seller is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Buyer for:

(a)    any increased costs or expenses;

(b)    any loss of profit, revenue, business, contracts or anticipated savings;

(c)    any loss or expense resulting from a claim by a third party; or

(d)    any special, indirect or consequential loss or damage of any nature whatsoever caused by Seller’s failure to complete or delay in completing the order to deliver the Goods.  

10.    Unpaid Seller’s Rights To Dispose Of Goods

10.1    In the event that:

1. the Seller retains or regains possession or control of the Goods; and

2. payment of the Price is due to the Seller; and

3. the Seller has made demand in writing of the Buyer for payment of the Price in terms of this contract; and

4. the Seller has not received payment of the Price,

then, whether or not title to the Goods has passed to the Buyer, the Seller may dispose of the Goods and the Buyer will be liable for any costs incurred or loss suffered by the Seller on such disposal.

11.    Default & Consequences Of Default

11.1    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 both before and after the date of any judgement at the pre judgment rate.

11.2    If the Buyer defaults in payment of any invoice when due, the Buyer agrees to pay the Seller all the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all of the Seller’s nominees costs of collection.

11.3    Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation under the Terms and Conditions (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer.  The Seller will not be liable to the Buyer for any loss or damage suffered by the Buyer as a result of the Seller exercising its rights under this clause.

11.4    If any account remains unpaid by the Buyer at the end of the second month after supply of the Goods 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.

11.5    In the event that:

1. any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or

2. the Buyer 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

3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer,

    then without prejudice to the Seller’s other remedies at law:

(i)    the Seller will be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and

1. all amounts owing to the Seller, whether or not due for payment, immediately becomes payable by the Buyer in addition to the interest payable under clause 11.1 hereof.

12.    Title

12.1    Title to the Goods shall not pass until:

1. The Buyer has paid all amounts owing for the Goods, and

2. The Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer.  

12.2    Until the Goods have been paid in full, the Buyer must hold the Goods as a bailee, and store them separately from all other goods clearly showing they are the property of Seller (including by not removing any serial numbers or identification of Seller’s).  

12.3    Until the date of payment, the Buyer may sell Goods belonging to Seller which are in its possession but only in the ordinary course of it carrying on its business, and the proceeds of sale to the extent of the invoice price of the Goods sold, will be held by the Buyer on trust for Seller and forthwith paid to Seller.

12.4    In the event that the Buyer uses the Goods in some manufacturing or construction of its own or some third party, then the Buyer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for Seller. Such part will be an amount in dollar terms to the amount owing by the Buyer to Seller at the time of the receipt of such proceeds. The Buyer will pay Seller such funds held in trust upon demand by Seller.

12.5    In the event of a default by the Buyer, then without prejudice to any other rights which Seller may have at law or under the Terms and Conditions, Seller may without notice to the Buyer enter the Buyer’s premises or other premises where the Buyer has located the Goods, and without liability for trespass or resulting damage, retake possession of the Goods and keep or resell Goods repossessed.  The Buyer shall indemnify and keep indemnified Seller from any claim whatsoever by any third party person or company in possession arising out of any action required by Seller to recover such Goods.

12.6    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 Seller’s title to the Goods remains.

12.7    It is further agreed that:

1. Until such time as title to the Goods passes from the Seller to the Buyer, the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller.  Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods ceases;

2. The Seller has the right of stopping the Goods in transit whether or not delivery has been made;

3. The Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller;

4. The Buyer must not grant nor otherwise give any interest in the Goods while they remain the property of the Seller;

5. The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller arising out of the Terms and Conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price;

6. The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that title to the Goods has not passed to the Buyer;

(g)    Until such time that title to the Goods passes to the Buyer, if the Goods are so converted, the parties agree that the Seller will be the owner of the end products.

13.    Personal Property Securities Act (“PPSA”)

13.1    Defined terms in this clause have the same meaning as given to them in the PPSA.

13.2    Seller and Buyer acknowledge that the Terms and Conditions constitute a Security Agreement and gives rise to a Purchase Money Security Interest (“PMSI”) in favour of Seller over the Goods supplied or to be supplied to the Grantor pursuant to the Terms and Conditions.

13.3    The Goods supplied or to be supplied under the Terms and Conditions fall within the PPSA classification of ”Other Goods” acquired by the Buyer pursuant to the Terms and Conditions.

13.4    Seller and the Buyer acknowledge that Seller, as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to the Buyer as Grantor under the Terms and Conditions on the PPSA Register as Collateral.

13.5   To the extent permissible at law, the Buyer:

(a)_    waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Buyer, as Grantor, to Seller.

(b)    agrees to indemnify Seller on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;

(i)    registration or amendment or discharge of any Financing Statement registered by or on behalf of Seller; and

(ii)    enforcement or attempted enforcement of any Security Interest granted to Seller by the Buyer.

(c)    agrees that nothing in sections 130 to 143 of the PPSA will apply to the Terms and Conditions or the Security under the Terms and Conditions;

(d)    agrees to waive its right to do any of the following under the PPSA:

1. receive notice of removal of an Accession under section 95;
2. receive notice of an intention to seize Collateral under section 123;
3. object to the purchase of the Collateral by the Secured Party under section 129;
4. receive notice of disposal of Collateral under section 130;
5. receive a Statement of Account if there is no disposal under section 130(4);
6. receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
7. receive notice of retention of Collateral under section 135;
8. redeem the Collateral under section 142; and
9. reinstate the Security Agreement under section 143.

14.    Security And Charge

14.1    Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:

1. Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer 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 Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions.  The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s 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.  

2. Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify and keep indemnified the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.

3. To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate, constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s 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 Seller’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Buyer’s and/or Guarantor’s name as may be necessary to secure the said Buyer’s and/or Guarantor’s 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 Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.

15.    Cancellation

1.  The Seller may cancel the Terms and Conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Buyer and in such circumstances the Seller is not liable for any loss or damage suffered by the Buyer arising from such cancellation.

16.    Privacy Act 1988

16.1   The Buyer and/or the Guarantor/s agree the Seller may obtain from a credit-reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.

16.2  The Buyer and/or the Guarantor/s agree that the Seller may exchange information about Buyer 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:

1. To assess an application by Buyer;

2. To notify other credit providers of a default by the Buyer;

3. To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and

4. To assess the credit worthiness of Buyer and/or Guarantor/s.

16.3    The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.

16.4    The Buyer 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 Buyer and Seller or required by law from time to time:

1. provision of Services & Goods;

2. marketing of Services and/or Goods by the Seller, its agents or distributors in relation to the Services and Goods;

3. analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Services/Goods;

4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer;  and

5. enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Services and Goods.

16.5    The Seller may give, information about the Buyer to a credit reporting agency for the following purposes:

1. to obtain a consumer credit report about the Buyer; and/or

2. allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.

17.    General

17.1    If any provision of the Terms and Conditions is deemed to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

17.2    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.  The parties will submit any dispute arising between them to the courts of that state for determination.

17.4    The Buyer is not entitled to set off against the Price amounts due from the Seller.

17.5    The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.

17.6    The Seller reserves the right to review the 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 Buyer of such change.

17.7    Neither party will 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.