Terms & Conditions of Sale
The following are the Conditions of Sale (“these Conditions”) applicable to all quotations given by and orders accepted by The Starena Group of Companies (Starena Australia) or its subsidiaries and agents (“Starena”) for the purchase of products by or provision of services to the Buyer in relation to these products.
(a) If any condition of a Buyer’s order conflicts with these Conditions of Sale then the latter shall prevail to the extent of any consistency, unless otherwise agreed in writing by Starena Outdoor Furniture.
(b) If any condition of a Buyer’s order purports to vary these Conditions of Sale, the same will not be binding upon Starena Outdoor Furniture unless agreed in writing, by Starena Outdoor Furniture.
(c) Other than for the terms of any Commercial Credit Facility between Starena Outdoor Furniture and the Buyer, these conditions shall comprise the whole of the agreement between Starena Outdoor Furniture and the Buyer in relation to the products and Starena Outdoor Furniture shall not be bound by any other condition, waiver, representation or agreement unless in writing and signed on behalf of Starena Outdoor Furniture.
(a) Prices quoted are valid for sixty (60) days from the date specified in the quotation or job sheet but thereafter are subject to alteration without notice and products thereafter shall be supplied at the prices ruling at the date of delivery, or as agreed.
(b) The total price quoted by Starena Outdoor Furniture is Exclusive of G.S.T. or government charges as defined in Clause 11 or any like tax or charge attributed to supplies by Starena Outdoor Furniture to the Buyer shall be payable by the Buyer.
(c) Should the specifications of the Buyer’s order vary, delete, add to or amend the specifications shown in the quotation, then the Buyer’s order shall be deemed to be an offer to treat rather than an acceptance of the quotation and Starena Outdoor Furniture shall not be bound to provide the goods and services at the prices or upon the terms specified in the quotation.
(a) Anytime quoted by Starena Outdoor Furniture for deliveries is an estimate only and will not constitute a warranty or condition of any contract or agreement between Starena Outdoor Furniture and the Buyer.
(b) Starena Outdoor Furniture shall not be liable in tort or contract or in any other manner whatsoever for failure to deliver or for delay in delivery arising from strikes, boycotts, lockouts, acts of god, storms, tempest, riots or any unforeseen circumstances beyond its control.
(c) In addition to the operation of any other clauses herein, Starena Outdoor Furniture shall not be responsible or liable in tort or contract or otherwise for any loss or damage arising from the failure to deliver or delays in delivery, installation or repairs in products or the failure to provide service or delay in the provision of service.
(d) The exemptions, limitations, terms and conditions of sale shall apply whether or not failure to deliver or delays in delivery, installation or repair is caused by negligence of Starena Outdoor Furniture or its employees or agents or actions constituting fundamental breach of contract.
(e) Products will be delivered during normal working hours, on a truck where suitable access is available.
(f) Additional costs incurred from delays or extra labour hours to unload will be charged to the Buyer.
(g) The risk in the products shall pass to the Buyer from the time of collection by the Buyer from Starena Outdoor Furniture or on the delivery to the site nominated be the Buyer, which shall in the absence from the site of the Buyer or his agent, be deemed to have been made at the place, time and date certified by the carrier.
(h) The Buyer shall not be relieved from any obligation to accept or pay for any goods or services by reason of any delay in the provision of services or on the delivery of products.
(i) If the Buyer delays delivery of the goods for more than fourteen (14) days from the date when Starena Outdoor Furniture advises that the products are available for delivery, Starena Outdoor Furniture may at its option:
(i) deliver the products to the Buyer in which case delivery shall be deemed to be a delivery pursuant to these conditions, or
(ii) treat the agreement constituted by these Conditions as being repudiated by the Buyer where upon the Buyer shall pay as liquidated damages, the full quotation price of the products and any costs incurred by Starena Outdoor Furniture, or
(iii) Starena Outdoor Furniture may levy a storage charge on a weekly basis at a rate determined by it.
(a) All implied conditions and warranties which may, by law, be excluded in relation to the supply of products by Starena Outdoor Furniture are hereby excluded to the extent that the conditions or warranties, the exclusion of which would render the agreement incorporating these Conditions between Starena Outdoor Furniture and the Buyer void or voidable or Starena Outdoor Furniture liable to a penalty or which may not by the terms of the Trade Practices Act (or other Acts of Law prevailing in the country where the goods are supplied) or relevant State Legislation be excluded or modified, then such conditions or warranties shall apply to the products and the services to be provided by Starena Outdoor Furniture.
(b) Where any legislation provided for remedies in the event of Starena Outdoor Furniture’s breach of a condition or warranty, whether statutory or otherwise, then the Buyer’s sole remedy for any breach shall at the option of Starena Outdoor Furniture be limited to:
(i) such remedy; or
(ii) the replacement of the product is resupply of the same; or
(iii) the repair of the product; or
(iv) the payment of the costs of repairing the product:
Provided that a claim shall be entertained in respect of the defects ascertainable upon delivery, or supply of products not conforming to the Buyer’s specification and requirements, unless made in writing within seven (7) days of delivery.
(c) Starena Outdoor Furniture shall not be liable for the costs or removal and reinstallation of its products from buildings other than in accordance with this paragraph.
(d) Subject to any provisions of the Trade Practices Act or any relevant State Legislation or Governmental regulations which may not excluded or modified, Starena Outdoor Furniture will not be liable for any costs, claims, damages or demands arising from any personal injury, loss or damage to products whatsoever occurring as a result of either the acts or omissions of Starena Outdoor Furniture, its servants or agents and in no case will Starena Outdoor Furniture be liable for consequential loss or damage.
(e) All goods supplied by Starena Outdoor Furniture are guaranteed against defects workmanship and materials for a period of twelve (12) months, but not in cases where the faults are due to misuse or damage by the Buyer or other parties or are used contrary to the purpose stated in the quotation or specifications. Such warranty shall not apply to any goods that have not been installed according to the Buyer’s specifications or the quotation.
6. Order Numbers
The Buyer acknowledges that Starena Outdoor Furniture is not responsible for accuracy of the inclusion of the Buyer’s purchase order number upon any Invoice or Statement and the Buyer remains liable to make payments of the Invoice amount regardless of the inaccuracy of transcription upon or omission of the purchase order number upon Invoice or Statement.
(a) Samples where applicable have been exhibited and inspected to enable the Buyer to judge the quality of the products only. All descriptive specifications, illustrations, drawings, data, dimensions and weights contained in catalogues, price lists or other advertising matters of Starena Outdoor Furniture are approximate and by way of general description. Products are supplied in accordance with normal industry standards of manufacture and Starena Outdoor Furniture will not be liable to the Buyer for quality of products which comply with those standards.
(b) Starena Outdoor Furniture reserves the right to change its suppliers without notice. Starena Outdoor Furniture shall not be liable to the Buyers as a result of any changes or alterations to the components forming all or part of its products.
8. Terms of Payment
Unless Starena Outdoor Furniture has granted a commercial credit facility to the Buyer, or unless specified otherwise on the quotation, payment for the products shall be made as follows:-
(a) 30% to 40% (variable) of the total price (excluding installation costs) shall be due and payable by the buyer as a security deposit on acceptance of quotations.
(b) 30% to 40% (variable) against ex works advice or BOL documents.
(c) 20% to 10% (variable) upon delivery of goods to site.
(d) 20% to 10% (variable) balance upon completion or progress claims as the work proceeds payable 7 days.
(e) If the order is cancelled before being put into production the security deposit will be refunded less 10%.
(f) Once the order is manufactured and released, Invoices will be issued by Starena Outdoor Furniture.
(g) As a minimum if the order is cancelled after being put into production then the security deposit will be forfeited, Starena Outdoor Furniture will determine the value of goods produced and shall invoice accordingly.
(h) “Production” means the incurrence of any direct cost associated with the order (including design, material and labour costs).
(i) “Released” means delivered to site by Starena Outdoor Furniture, as agreed by the Buyer or collected from Starena Outdoor Furniture premises as agreed by the Buyer.
(1) As the majority of works undertaken by the Starena Outdoor Furniture Group are bespoke product design and manufactured products, specifically for projects, variable payment terms, as set out in 8. (a) and (b) above applies, dependent upon the complexity of the contract.
(2) Starena Outdoor Furniture does not provide Bank Guarantees as it is the seller. The Buyer is the purchaser and must supply security for the purchase of the bespoke product.
(3) The Buyer may embrace payment as set out in 8.(a) and (b) above, or propose alternative acceptable terms to Starena Outdoor Furniture to secure design and manufacture of the bespoke product.
(4) Starena Outdoor Furniture will, if requested, supply its standard:-
- Company Guarantee
- Director’s Guarantee
in respect to the payments received under 8.(a) and (b) above.
(5) A bespoke product is defined as being a product designed, engineered and manufactured to order specifically for a project.
9. Costs of Recovery
The cost of collection of any monies due and owing, including but not exclusively the fees of basis against the Buyer.
If a dispute occurs regarding the quality of the product, and the dispute remains unresolved for a period of seven (7) days, the parties agree to refer the matter to Arbitration for resolution. The undisputed portion of the Invoice must be paid by the due date. Notwithstanding operation of this clause Starena Outdoor Furniture may commence legal proceedings at its total discretion.
(a) The buyer must pay to Starena Outdoor Furniture any amount which is payable by Starena Outdoor Furniture in respect to any supply to the Buyer on account of G.S.T. or other government charges.
(b) Each Invoice rendered by Starena Outdoor Furniture shall include G.S.T. (or other Government Charges) component which shall be due and payable in conjunction with our current terms and conditions.
(c) “G.S.T.” means G.S.T. as defined in a New Tax System (Goods and Services Tax) Act 1999 (as amended).
12. Force Majeure
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Starena Outdoor Furniture is unable to perform in whole or in part any obligation in this agreement, Starena Outdoor Furniture shall be relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and shall not be liable to the Buyer in respect if such inability.
13. Account customers Terms and Conditions
Terms and conditions applicable as per signed Credit Application form held on file.
14. Compliance Certificates
Starena Outdoor Furniture reserves the right to not issue any required Certifications until the job has been (i) Invoiced (ii) Account Customers must not be on Stop Credit.
15. Site Conditions
The Buyer will ensure that all works by other trades is completed, so as to not impede the installation works of Starena Outdoor Furniture. The company reserves the right to not commence installation until the site is in its opinion ready for such installation to commence.
16. Retention of Title
Title in all of the seating remains vested in Starena Outdoor Furniture and will not pass either to the Head Contractor of the client until the purchase price has been paid in full. This constitutes a purchase money security interest, as defined in the personal property security act 2009 (Cth) (PPSA) in the seating equipment and any proceeds of sale of the equipment to secure the purchase price of the equipment (PMSI).
If the purchase price is not paid in full by the terms of trade then Starena Outdoor Furniture may without notice and without prejudice to any other of its rights or remedies enter the premises where the equipment is installed and seize the equipment and thereafter sell or otherwise dispose of the equipment as it sees fit. In seizing the equipment, Starena Outdoor Furniture may take whatever action that is reasonably necessary to detach the equipment from any fixtures or fittings in the venue and shall be under no liability to make good any damage affected to the premises as a result of that action.
You agree that once an order is placed with Starena Outdoor Furniture which is accepted, then this letter of offer submission amounts to a security agreement for the purposes of the PPSA and you will do all such things as Starena Outdoor Furniture may require from time to time to ensure any security interest of Starena Outdoor Furniture is perfected under the PPSA and you will reimburse and indemnify Starena Outdoor Furniture for all expenses incurred by Starena Outdoor Furniture in registering the security interest on the PPSA register.
The Head Contractor and Client also agree not to do or permit anything to be done that may result in the PMSI granted to Starena Outdoor Furniture ranking priority behind any other security interest (as defined in the PPSA).
Contracting out of the PPSA
The customer (i) waives the right under section 157 of the PPSA to receive a copy of the verification statement verifying registration of a financing statement or a financing change statement relating to a security interest created in connection with this letter, and (ii) contracts out of its rights to receive any other notice or statement under any other provision of the PPSA (including for the avoidance of doubt, any of the provisions specified
To the fullest extent permitted by the PPSA, the parties agree to contract out of sections 95, 117, 118, 120, 121(4), 125, and the second sentence of section 126(2), sections 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 142 and 143, which sections (or parts of sections) shall not apply.
Risk: notwithstanding the foregoing, the equipment shall be at the risk of the customer from the date of delivery, and the customer must ensure insurance of the goods to the full replacement value.
17. Intellectual Property and Copyright
Starena Outdoor Furniture owns all intellectual property rights including copyright in any original material created by Starena Outdoor Furniture under the contract. Any use of material or infringement of Starena Outdoor Furniture’s intellectual property rights, without Starena Outdoor Furniture’s written consent, is strictly prohibited.
Starena Outdoor Furniture and the buyer agree that their agreement is governed by the laws of New South Wales and irrevocably submit to the non-exclusive jurisdiction of that state.