TERMS AND CONDITIONS OF TRADE
To the fullest extent legally permissible all dealings between CMMAR and any Customer relating to any products [“Products”] and/or services are subject to the following terms and conditions of trade [“these Terms”]:
1. Payments: Full prepayment is required to commence an order. Payments to be by direct debit, EFTPOS, Mastercard or VISA, cash or bank cheque. Business cheques will be subject to acceptance at the discretion of CMMAR and subject to clearance.
2. Property: If CMMAR grants any credit facility and/or time to pay:
a) property in Products shall not pass to the Customer until payment in full of all monies owed to CMMAR (“ROT”) and CMMAR reserves the right to take possession and dispose of Products as it sees fit at any time until full payment is received;
b) the Customer agrees that a certificate purporting to be signed by an officer of CMMAR identifying Products as unpaid for shall be conclusive evidence that Products have not been paid for and of CMMAR’s title to those Products;
c) the Customer agrees that the ROT is a security interest within the meaning of the Personal Property Securities Act 2009 (Cth) (“PPSA”);
d) The Customer agrees that sections 95, 130, 132(3)(d), 132(4), 135 and 143 of the PPSA will have no application to the agreement between CMMAR and the Customer in respect of these Terms and the Customer waives its rights under section 157 of the PPSA to receive a notice under that section.
e) Products shall be deemed to be dealt with by the Customer on a “first in first out” basis at all times.
4. Limitation of Liability: The Customer agrees:
a) to limit any claim it makes to the cost of repair or replacement of Products which will be at the discretion of CMMAR;
b) CMMAR will not accept any claim for repair or replacement of Products that has not been received by CMMAR in writing;
b) that CMMAR shall not be liable for any loss or expense arising after seven days from delivery (or at all once Products have been unpacked, affixed and/or otherwise used or applied) after which there shall be deemed to be unqualified acceptance;
c) that to the fullest extent legally permissible CMMAR shall not be liable for any damages for personal injury, any damage to property and/or any contingent, consequential, direct, indirect, special or punitive damages whether due to negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly; and
d) that to the fullest extent legally permissible no other term, condition, agreement, warranty, representation and/or understanding whether express or implied, in any way extending to, otherwise relating to or binding upon CMMAR other than these Terms is made or given by or on behalf of CMMAR other than by these Terms save and except to the extent otherwise required by law.
5. Exclusions: The Customer agrees that:
a) no dealing between CMMAR and the Customer shall be or be deemed to be a sale by sample;
b) the Customer shall rely on its own knowledge and expertise in selecting Products for any purpose and any advice or assistance given by or on behalf of CMMAR shall be accepted at the Customer’s risk and shall not be deemed to have been given as an expert or adviser nor to have been relied upon;
c) Products are sold subject to each and every manufacturer’s trading terms and conditions and are protected by each and every manufacturer’s warranty and CMMAR shall not be liable to the extent that any manufacturer is liable under a manufacturer’s warranty unless otherwise required by law; and
d) CMMAR shall not be liable nor responsible for any failure to comply with any requirements of the Customer or any other person (whether relating to manufacture, design, fabrication, installation and/or any other particular intended use of any Products and/or otherwise) which are not precisely and accurately communicated in in writing directly to the appropriate personnel at CMMAR.
6. Cancellations and Refunds: The Customer agrees that:
a) as per Australian Consumer Law, CMMAR is not required to provide a refund or replacement if the Customer changes his or her mind or due to any change in his or her circumstances.
b) the Customer shall at no time cancel the whole or part of any order placed unless with CMMAR’s prior written approval;
c) notwithstanding any other provisions of these Terms the Customer shall not return any Products which have been custom made, custom cut, custom processed or custom acquired.
d) notwithstanding any other provisions of these Terms the Customer shall not cancel any order for Products which have been custom made, custom cut, custom processed or custom acquired whether the order is fully or partially complete.
e) notwithstanding any other provisions of these Terms, should the Customer wish to cancel an order for Products prior to the commencement of production of those Products, this must be submitted in writing and approved by CMMAR. If production of the order has not yet commenced a fee of 10% of the invoiced value will be applied at the discretion of CMMAR and any monies refunded to the purchaser will be deducted from the monies paid to cover costs.
7. Orders: The Customer agrees that:
a) each order it places shall be deemed to include a representation that it is solvent and able to pay all of its debts as and when they fall due; and
b) when any order is placed the Customer shall inform CMMAR of any facts which might reasonably affect any decision to accept the order and/or grant credit and that any failure to do so shall be deemed to create and constitute an inequality of bargaining position, the taking of an unfair advantage of CMMAR and to be unconscionable, misleading and deceptive.
8. Minimum Invoice Policy and Purchase Price: The Customer agrees that:
a) the Customer shall at all times and in all respects comply with CMMAR’s minimum invoice policy as may at any time and from time to time apply on such terms as CMMAR considers to be reasonable; and
b) all sales are otherwise made by CMMAR at its ruling price at the time of delivery and on such other terms as CMMAR considers to be reasonable.
9. Delivery: The Customer agrees that:
a) CMMAR accepts no responsibility or duty to deliver but may elect to arrange delivery at its discretion and without liability and at the Customer’s cost and risk in all things;
b) CMMAR shall not be liable for delay or any failure or inability to deliver;
c) Products shall be deemed to be delivered as soon as they are ready for delivery at which time risk shall be deemed to have passed to the Customer; and
d) CMMAR may charge for frustrated delivery to cover CMMAR’s reasonable expenses.
e) Immediately upon delivery, the customer must inspect all Products prior to signing the delivery docket or tax invoice to ascertain that there is no damage to the Products. If damage is found, the purchaser must sign for the freight as damaged and the driver must acknowledge that the purchaser is signing for damaged freight. If transport of the Products is by a third party (other than CMMAR or it’s agents) then it is the responsibility of the purchaser to file any freight claims resulting from this process. In the case of third party transport, CMMAR has no liability after the Products are despatched from its premises.
f) Freight for the return of the panels is the responsibility of the purchaser until the returned panels have been inspected by us and are found to be the result of defects in workmanship in which case we will reimburse the cost of the freight after we receive the freight invoice relating to the shipment and reimbursement will not exceed the cost of sending same with our freight forwarder. A reimbursement for return freight will be made once only per shipment originally sent by us. The buyer is responsible for the packaging and crating of the returning panels so that they are not damaged in transit. Panels that are deemed to have been damaged in transit due to lack of packing materials or incorrect packing by the purchaser will not be repaired or replaced by CMMAR.
10. Other Terms and Conditions: No terms and conditions sought to be imposed by the Customer upon CMMAR shall apply.
11. Recovery Costs: The Customer shall pay all costs and expenses (including legal costs on an indemnity basis) incurred by CMMAR and/or its agents in respect of the Customer whether relating to any debt, possession of Products and/or otherwise.
12. Customer Restructure: The Customer shall notify CMMAR in writing of any change in its structure and/or management including any change in director, shareholder and/or management and any change in partnership or trusteeship within seven days of the date of any such change.
13. Jurisdiction: The Customer agrees that all contracts made with CMMAR shall be deemed to be made in the State nominated by CMMAR and the Customer agrees to submit to the jurisdiction of the appropriate Court nominated by CMMAR in the capital city of that State.
14. Credit Limit: The grant of any credit facility or nomination of any credit limit is an indication only of CMMAR’s intention at the time. CMMAR may vary and/or withdraw any credit facility at any time at its discretion and without any liability to the Customer or any other party.
15. Security for Payment: As security for payment to CMMAR of all monies payable by the Customer, the Customer does hereby charge in favour of CMMAR all of the Customer’s interest in freehold and leasehold property both current and later acquired.
16. Forward Orders: The Customer agrees:
a) to pay for so much of any forward order as is from time to time invoiced by CMMAR;
b) that no delay or failure to fulfil any part of such order shall entitle any cancellation or variation of any order or delay or reduce any payment; and c) to pay any demurrage and/or other costs and expenses of CMMAR in handling and/or holding Products once ready for delivery.
17. Force Majeure: CMMAR shall not be or be deemed to be in default or breach of any contract as a result of Force Majeure. Force Majeure shall include any cause beyond the reasonable control of CMMAR including strikes and lockouts.
18. Power of Attorney: For the purpose of giving effect to the Customer’s obligations under these Terms (in particular clause 15. of these Terms) the Customer hereby irrevocably appoints the National Credit Manager (or like equivalent) for the time being of CMMAR as the Customer’s attorney in all things.
19. Disputes: The Customer agrees to pay into an interest-bearing trust account in the joint names of CMMAR and the Customer any amount claimed by CMMAR as a condition precedent to any dispute by the Customer of any such claim on the basis that upon resolution of the dispute the trust fund and any interest shall be dispersed according to the resolution. This clause shall operate as a bar to any defence or claim by the Customer until fully complied with.
20. Defaults: Upon the appointment of an Administrator, Receiver, Receiver and Manager, Liquidator or Trustee in Bankruptcy to the Customer or a breach of any of these Terms by the Customer, CMMAR may inter alia retain all monies paid, cease further deliveries, recover from the Customer any loss of profits arising and/or at CMMAR’s election take immediate possession of Products not paid for without prejudice to any other rights CMMAR may have and without CMMAR being liable in any way to any person.
21. Severability: Any part of these Terms being a whole or part of a clause shall be capable of severance without affecting any other part of these Terms.
22. Goods and Services Tax [GST]: All monies payable to CMMAR and any other consideration for any other “taxable supply” (within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated legislation as amended from time to time) shall unless CMMAR otherwise directs be deemed at all times to be exclusive of GST and/or any other applicable taxes, government charges, levies and/or imposts of any kind whatsoever – any and all of which must be paid by the Customer to CMMAR as and when and in such manner as CMMAR reasonably requires.
23. Warranty Policy: The Customer agrees that:
a) The customer hereby waives all statutory warranties and all warranties implied by law in connection with the sale of the Products, and agrees that the only warranties made by and binding upon CMMAR, is that CMMAR warrants its Products for one year (365 days) from the date of purchase by the buyer against any defects in workmanship in the Products. Any damages for any defect in workmanship is limited to repair or replacement of the defective Products at the discretion of the management of CMMAR.
b) Routing of medium density fibreboard (MDF) material may cause a slight bowing of the material. This is normal and will most likely be within the Australian standards.
c) The warranty does not apply for damage caused to the Products after receipt by the customer, by any factors, including without limitation: wear and tear, mishandling, abuse or accidental damage.
d) Painted finishes: CMMAR recommends that all Products made from MDF, ordered by the Customer, be supplied by CMMAR or it’s agents in a professionally prepared 2-pack polyurethane painted finish. If you choose to order the Products to be supplied to you in an unpainted finish, all warranty on the Products is voided. As CMMAR does not have any control over how the unpainted Products are handled, painted and completed, we will in no way be liable for them. All Products made from MDF should be painted in a professionally prepared 2-pack polyurethane paint by a reputable paint trade professional as this material is best suited to this coating system. Water based paints do not tend to bond easily to this surface and as such, the use of acrylic or domestic oil based paint is not recommended. CMMAR does not accept any liability for painting of Products by a third party. Warranty for all Products supplied by CMMAR is voided if they are painted or coated by a third party, professional or otherwise.
e) CMMAR in no manner warrants the fitness of its Products for any particular purpose for which the buyer intends to use them. The buyer assumes all risks associated with the Products and the use thereof.
f) Save and except as required by law no warranty is given where CMMAR is not the manufacturer of Products other than the warranty offered by the manufacturer and to the fullest extent legally permissible CMMAR’s liability shall in all cases be strictly limited in accordance with clauses 4. & 5. of these Terms.
24. Credit Information: The Customer irrevocably authorises CMMAR and its servants and agents to make such enquiries from time to time as CMMAR may deem necessary to obtain information and/or to investigate the creditworthiness of the Customer including enquiries with persons nominated as trade references, bankers of the Customer, any other credit provider, any credit reporting agency, any land titles office, the ASIC, ITSA and/or any similar body and/or related information service [“the Sources”] and including personal credit and consumer credit information and any property, business and/or solvency information. The Customer by this clause irrevocably authorises the Sources to disclose anything about the Customer which is in the Sources’ possession and the Customer agrees that CMMAR may disclose any information it has about the Customer to any interested person (subject only to any obligations CMMAR may have under the Privacy Act 1988 (Cth)).
25. Disclaimer: The Customer agrees:
a) Appearance: Due to the hand sanding required to finish the Products made from medium density fibreboard (MDF), grooves on the finished panels may have a slight non uniform appearance.
b) Bowing: The machining of the panels may cause them to bow slightly. This is considered normal and can be rectified by securing the panels to the surface to which they are to be mounted, at a sufficient number of points at the top, middle and bottom and at the left and right hand sides at least.
c) Storage and handling: Much care needs to be taken when storing, transporting and handling the panels. Do not store or transport the panels face to face as the sculpting may be damaged. CMMAR™ does not warrant against damage or bowing resulting from storage, handling, installation or finishing by the Customer or a third party.
d) Colour variations: MDF is made from recycled forest products therefore raw unfinished panels will have natural variations in colour and fibre. We cannot guarantee a colour match of raw panels. This is why we do not recommend clear lacquering as a finish for the panels. Staining of the panels, especially in light colours may also result in slight colour differences between panels. The machined panels will vary in their degree of furriness i.e. the texture of the surface after the board has been machined. This is the result of the use of natural recycled materials in the manufacture of the raw boards.
e) Vinyl finish: In addition to the machining, the application of the vinyl finish to the surface of the panels creates a certain amount of tension, which may cause them to bow. This is considered normal and can be rectified by securing the panels to the surface to which they are to be mounted, at a sufficient number of points at the top, middle and bottom at the left and right hand sides at least. When choosing a wood grain vinyl finish, it is important to note that the direction of the grain will always run in the long direction of the panel. This finish is only available on panels 2400 x 1200mm or smaller. Vinyl is applied to the face of the panel only.
f) Fitness of use: CMMAR™ in no manner warrants the fitness of its goods for any particular purpose for which the buyer intends to use them. The buyer assumes all risks associated with the panels and the use thereof.
g) CMMAR are decorative in nature and the designs may vary slightly due to cutter sharpness or machine operator interpretation of the designs. These slight variations are not deemed to be a defect.
h) Defective workmanship: Inspection of the panels to determine that they are free from damage or defects in workmanship should take place immediately after receipt and prior to undertaking processes of any kind which changes the panels in any way or any work that arises because the panels have been received. CMMAR will not be liable for any costs incurred for processes such as finishing or painting, work undertaken or any other costs which are incurred after the panels have been supplied. Liability is limited to the repair or replacement of panels as originally ordered if they are deemed to be the result of defects in workmanship by CMMAR.
i) Return of panels: CMMAR will repair or replace panels at our discretion, only if they are returned to our factory at 80 Redfern Street, Wetherill Park NSW 2164 within 30 days and in the original state that they were shipped by us and only if they are deemed to be the result of defects in workmanship after inspection by us.
j) Hand finished panels may be of slightly non uniform appearance. This is considered normal for this type of finish, is cosmetic only and is not considered to be faulty workmanship.
26. Notice: The Customer agrees that it shall be deemed to have notice of any change to these Terms and be bound by any subsequent versions of these Terms as they appear on the website www.archiwallpanels.com whether or not the Customer has actual notice thereof.
CMMAR™ designs, marketing materials, including website design, pages, documents and online graphics, are the sole property of CMMAR™ and are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights. Copyright of CMMAR™ materials resides with CMMAR™. Apart from any fair dealing for the purposes of study, research and review, as permitted under copyright legislation, no part of these services may be reproduced, re-used or redistributed for any purpose whatsoever, or distributed to a third party for such purpose, without written permission from the management of CMMAR™. The photograph “Vision office Artarmon Waves design.JPG” was taken by Chinny Buraga.