The following Terms and Conditions of Sale govern YZY PTY LTD supply of Products and Services. Please read these terms and conditions carefully. When you submit an order or accept delivery of the Products and Services pursuant to an Order or make Payment, or partial Payment, for any Products and Services supplied by us, whichever occurs first, you are deemed to have accepted and will be bound by these Terms and Conditions of Sale.
It is solely your responsibility to make sure the Products are used in accordance with all legal requirements and standards as required by Councils, development standards, Building Codes of Australia and other applicable laws. You acknowledge that all parts of the product are designed, manufactured and packed overseas and may not suit or have to be adjusted to suit Australian laws and/or climate conditions and only Owner Builders and Licensed Builders can manage or supervise the installation of the Product to make sure the compliance with all Building and legal requirements. We strongly recommend consulting the qualified professional before you place an order and also checking with local engineer to confirm slab or other base design will suit your ground type and size of building.
1.1 Currency: These General Terms and Conditions of Trade (hereinafter ‘Terms and Conditions’) apply to the supply of all Products and Services by us (YZY) to you (the Buyer) from the date that you accept these Terms and Conditions.
1.2 Acceptance: You accept these Terms and Conditions when:
1.2.1 you submit an Order;
1.2.2 you accept delivery of, or any part of, the Products and Services pursuant to an Order; or
1.2.3 you make Payment, or partial Payment, for any Products and Services supplied by us, whichever occurs first.
2 QUOTES AND ORDERS
2.1 Requesting a Quote: You may request a Quote from us relating to the potential supply of Products or Services.
2.2 Providing a Quote: We may provide to you a Quote relating to the potential supply of Products or Services, which may include the price and quantity of the Products or Services proposed to be supplied by us and other relevant details as necessary.
2.3 Validity of Quote: A Quote is valid for 30 days only unless otherwise stated on the Quote. We reserve the right to withdraw a Quote at any time before you place an Order.
2.4 Placing an Order: If our Quote is acceptable to you, you may place an Order for each supply of Products and Services. An Order is not binding until we have provided you (in our absolute discretion) with our written acceptance or confirmation of the Order. Order shall take place when the non-refundable deposit of 30% is received in cleared funds.
2.5 Custom orders: You may request customized Products. Firstly we will look into possibility to offer a standard product from the manufacturer’s portfolio. If we cannot offer the standard product, we will start process of custom order.
2.5.1 Process of custom Order: Custom Order is usually 20 % more expensive than the standard order. You will be charged for the designer, drafter and any other specialist services required for the 3D and/or 2D drawings of your custom design. You will describe the design desired in details with the help of our questionnaire. We will get back to you with the drawings. After the design is approved, we will provide you a Quote subject to clause 2.2. Validity of Quote subject of clause 2.3; placing an Order is subject to clause 2.4
2.6 Additional conditions: Unless otherwise agreed by us in writing, these Terms and Conditions will prevail over and we will not be bound by, any conditions (express or implied) added or provided by you, whether in an Order or otherwise.
3.1 Price: Unless otherwise agreed to in writing by us, subject to clause 3.3, the price charged and payable for the Products or Services shall be the price in Australian dollars at the date we issue the Order or the Invoice or other document to you, together with any applicable taxes, charges and delivery costs in relation to the Products and Services.
3.2 Variation of price: Prices contained in any Quote for the supply of Products or Services are based on the cost prevailing (and the specification supplied) at the time of the Quote. Subject to your rights under law, we reserve the right to vary the price if:
3.2.1 there is any movement in the cost of supplying the Products or Services specified in your Order, including any Charges;
3.2.2 the Products or Services specified in your Order are varied from the Products or Services specified in our Quote; or
3.2.3 otherwise provided in these Terms and Conditions, and we provide you reasonable notice of any such variation of price.
4.1 Invoice on Order: Unless otherwise agreed in writing, we will issue you an Invoice on Order of the Products or Services specified in your Order.
4.2 Payment terms: All Payments shall be made in full prior to the delivery unless otherwise agreed in writing between us.
4.3 Payment method: All Payments are to be made to us in cash, by direct debit to the bank account nominated by us or as otherwise indicated by us in writing.
4.4 Payment in installments: We may at our discretion as agreed in writing accept Payments in installments upon such terms as we see fit.
4.5 If you fail to make any payments on agreed terms 3 days prior to pickup and the transport for the delivery is booked by us, we will contact you to arrange another time for delivery. This will result in additional costs for storage and transport cancellation fees which will be transferred to you. In this case you will have to pay the additional costs on the top of the reminder of the original order in full and only then arrange the time for delivery.
4.6 Invoice shall be issued by us on Order of the Products and/or Services specified in your Order unless otherwise agreed in writing. Invoice may be updated to also include additional costs, interest and expenses occurred as specified in clauses 4.5 and 5.
5 PAYMENT DEFAULT
5.1 Default Interest: We may at our discretion in the event of your failure to make a Payment in accordance with clause 4 (Payment) charge Default Interest at the rate of between 7% and 10% per annum, compounding monthly. at our discretion.
5.2 Payment of Default Interest: Default Interest pursuant to clause 5.1 shall be:
5.2.1 payable on demand; and
5.2.2 calculated daily from the date Payment was due to the actual date that the Payment is made in full.
5.3 Costs of enforcement: We may recover from you any costs we incur in the collection of Payment of any Invoice.
5.4 No set off: You may not set off against any Payment any claims which you may have against us.
5.5 Default Interest amount credited first: Any Payment you make to us shall first be credited against any Default Interest accrued pursuant to this clause 5 to the actual date of Payment.
5.6 Additional costs recovery: we will charge you for any delays of pickup or a return of a container subject to clause 6.3.1
6 DELIVERY, RISK AND INSURANCE
6.1 Delivery: Delivery of the Products shall take place upon pickup by or delivery of the Products to you, your agent or nominee or to a carrier commissioned on your behalf as applicable at the place specified by you or as otherwise agreed.
6.1.1 We shall arrange delivery of the products at the earliest opportunity.
6.1.2 Delivery dates stated are indicative only and you agree we shall not be responsible for any delivery delays or date and time changes of the delivery as it is out of our direct control and may be caused by manufacturing, transportation, Australian Quarantine, Customs or a third party problems. Delivery delays do not give you the right to cancel an Order or terminate these Terms and Conditions.
6.2 Delivery to your specified place. We may offer delivery to your specified place and in this instance:
6.2.1 you must create a suitable access and an appropriate space for delivery. It is your responsibility to notify us of any concerns regarding the access or space for delivery at the time of Order.
6.2.2 At the discretion of the delivery driver products may be unloaded to an alternative point at the delivery property.
6.2.3 If you fail to create an appropriate space for the Products at your premises and the Products cannot be unloaded and have to be returned to our Warehouse, you will be liable for the expenses occurred for the return of the Products. In addition, you will be liable for the storage cost of the Products. We will not store your Ordered Products for more than 4 weeks and within this time you have to arrange an appropriate space for the Products to be delivered. We reserve the right to cancel your Order after 4 weeks if you cannot create a space for the products and they cannot be delivered to you. When you create a space for the repeat delivery, you must pay in full all additional costs occurred as a result of failed delivery 3 days before the repeat delivery. If you fail to make this payment on time, this will result in additional costs specified in clause 4.5 and then the same conditions apply as for failure to pay the reminder.
6.2.4 You must sign for receipt of Order upon delivery (at which point you bear all responsibility and risk) unless we received written acceptance to unload and leave products to be left unattended.
6.3 Pickup Orders: Delivery of Products takes place on the time we notify you in writing about the availability to pick up your Order.
6.3.1 Container Orders: You must pick up and return container within agreed time frames usually being 5 days. In the event of failure to fit the time frames we will charge you the cost of container hire and any other expenses occurred as a result of your failure to pickup or return the container on time.
6.4 Cost of delivery: We will charge you the cost of delivering the Products to you, which may be included in the Payment to be made in relation to the Products. Any transportation costs incurred after the Products have been Delivered will be paid by you.
6.5 Installments: We reserve the right to make deliveries in installments and these Terms and Conditions shall be severable as to such installments.
6.6 Risk passes on delivery: The risk in the Products shall pass to you upon the delivery of the Products in accordance with clause 6.1. You accept all responsibility for any loss or damage may occur to the Products from the time risk passes to you.
6.7 Insurance over Products:
6.7.1 we do not hold any insurance policies in relation to the Products under your control.
6.7.2 If requested by us, you shall from the delivery date until we have received Payment for all Products in full, have sufficient insurance in respect of the Products to protect us against loss or damage by fire, flood, theft or any other cause whatsoever and provide to us upon our request evidence of such insurance.
6.8 No liability for delay: We will use reasonable efforts to deliver the Products to you by the date and to the place specified by you. Without limiting clause 10 (Exclusions and Limitations), if the Delivery of the Products is delayed resulting from a Cause Beyond the Reasonable Control of YZY:
6.8.1 we shall not be liable for late delivery or delay in delivery;
6.8.2 the delay does not give you the right to cancel an Order or terminate these Terms and Conditions.
7 SUSPENSION AND CANCELLATION
7.1 Suspension of Order: If as a consequence of an instruction from you, we delay or suspend (but not cancel) an Order or any part of an Order for a period of 30 days or more, we may:
7.1.1 request the payment in full for all work in progress relating to the relevant Order at the time of suspension; and/or
7.1.2 vary the price for the uncompleted portion of the relevant Order.
7.1.3 request the payment for the storage and/or a container hire and/or other expenses we incur as a result of your suspension;
7.2 Cancellation by you: You may not cancel an Order, or any part of it, unless:
7.2.1 you pay to us (if required by us in our absolute discretion) any and all costs reasonably incurred by us in relation to the canceled Order or the canceled part of the Order to the date of cancellation.
7.2.2 an Order includes Products customized to the specific requirements you pay to us the total order value.
7.2.3 you agree to pay for any and all costs reasonably incurred by us in relation to the sale of the Products in the canceled order by you.
7.3 Cancellation by us: We may in writing cancel an Order or delivery of an Order without liability to you (save as required by relevant laws) if:
7.3.1 we reasonably form the opinion that you are insolvent or at material risk of insolvency;
7.3.2 you fail to pay any amount for the Products or Services on the due date; or
7.3.3 we reasonably form the opinion that supplying Products or Services to you may have a negative impact upon our business or commercial reputation or image.
8.1 Installation or other services related to any Products may be provided by a third party and buyer will have to enter into another agreement other than an agreement between the parties.
8.2 Buyer will make an assessment of the suitability and expertise of a third party and will not rely on our skill or judgment when acquiring any Services from a third party recommended by us.
8.3 Buyer is responsible for all construction procedures required by law including but not limited to getting council approval if required for the development.
8.4 Buyer will not rely on information provided by us (verbally, by phone, in person and/or in writing on our website www.yzykithomes.com.au or other electronic or paper communication) on development requirements and will seek a professional advice from a local council or other professional legal services provider.
9 DEFECTS AND RETURN OF PRODUCTS
9.1 This clause 8 is subject to clause 10 (Exclusions and Limitations), clause 11 (Statutory Rights) and any other statutory or legal right whether under these Terms and Conditions or otherwise.
9.2 Returns: You should inspect the Products immediately once they are delivered and may only return the Products if:
9.2.1 they do not materially comply with the Order; or
9.2.2 if permitted by law.
9.3 Defects: Subject to clause 9 (EXPRESS WARRANTY) faulty parts of the Products will be replaced or repaired. Timber splits or warping are natural characteristics of the products and not defects and neither will these circumstances be accepted as a defect. Minor wreckage and knots will not be regarded as a defect.
9.4 Notification: If you wish to return any Products delivered to you, you must give to us:
9.4.1 notice in writing.
9.4.2 notice within a reasonable time of your receipt of the Products; and
9.4.3 the original Invoice details.
9.5 Replacement or credit: If we accept the return of Products or faulty parts of the Products from you and provide you with a return authorization, we will at our option either:
9.5.2 repair; or
9.5.3 give a refund for such Products or faulty parts of the Products.
9.6 Costs to return Products: We shall bear any expense of transportation of faulty or subject to clause 8.2 Products returned to us. Products to be returned must be in its original package; faulty parts of the Products must be packed and wrapped appropriately.
9.7 Payment for other Products: You may not withhold any payment due to us in respect of any other Products pending the resolution of a claim for a defect.
9.8 Products damaged in transit: If the Products are damaged in the course of being delivered to you:
9.8.1 you must notify us of any claim for Products damaged in transit within a reasonable time of delivery; and
9.8.2 subject to our acceptance of your claim under this clause 8, we will replace or repair the relevant Products at no extra charge to you.
9.8.3 you may have to return the Product or destroy it in the presence of a representative of YZY.
9.9 No distribution of damaged Products: The Buyer must not distribute any product that is damaged or not of merchantable quality, or does not meet the required product or packaging standards.
10 EXPRESS WARRANTY
10.1 Provider details: The warranty against defects (Warranty) contained in this clause 9 is provided by YZY PTY LTD, address 18 St Johns Road Maraylya NSW 2765.
10.2 Warranty: We warrant that the Products are supplied free from defects in material and workmanship except such defects as normally being regarded as being commercially acceptable.
10.3 Warranty Period: The Products made of solid timber walls of up to 44 mm thickness shall be covered by 5 year warranty concerning the structure of the Products. The Products made of solid timber with wall thickness of minimum 45 mm shall be covered by 6 year warranty concerning the structure of the Products. The Products made of laminated timber with wall thickness of minimum 60 mm shall be covered by 10 year warranty concerning the structure of the Products. uPVC windows and doors supplied as a part of a kit of the Product shall be covered by a 6 year frame, glass and workmanship warranty. Warranty periods are valid ONLY if:
10.3.1 Foundation and footings for the structure are level and built in accordance with the drawings certified by Australian accredited engineer for a particular land on which the Product is to be situated; Structure is tied down to the subfloor with structural tie-down system and steel rods are periodically inspected and adjusted as per instructions adjusting tie down system.
10.3.2 The Products are assembled according to the manufacturer’s instructions and building is not altered during construction from its original design and floor plan;
10.3.3 Waterproofing and termite protection is present in the foundation and corrugated roofing installed according to the roofing manufacturer’s instructions with sufficient rain gutters and down pipes to dispose of rainwater; bottom boards are fully covered with a CN (Copper Naphthenate) timber protective emulsion; all timber is sealed inside and out with the industry recognized paint or stain system;
10.3.4 The Product is protected from extreme heat, sun UV by insulating the roof according to building industry standards and protecting any wall exposed to direct sun with timber products that protect from sun exposure;
10.3.5 Timber is maintained according to timber care and maintenance instructions and the instructions of industry recognized paint or stain system, preserved and sealed inside and out within 21 days from the day of installation. Proper maintenance records are the responsibility of the Product owner;
10.3.6 Windows were adjusted and operated according to the operation instructions and are maintained according to the maintenance instructions. Proper maintenance records are the responsibility of the Product owner;
10.3.7 The Product is of a kind ordinarily acquired for personal, domestic or household use or consumption;
10.4 Exclusions: We will not be liable for:
10.4.1 loss or damage caused by factors beyond our control;
10.4.2 any unpacked Products that have not been stored in a properly ventilated room or, if outside, not protected form the sun UV, rain or exposed to other elements that may have caused damage to the Products.
10.4.3 any products that have been unpacked and kept in an unprotected environment or exposed to the elements that may have caused damage to the Products.
10.4.4 Damage caused returning Products not in its original package or faulty parts of the Products not packed and wrapped appropriately.
10.4.5 any Products that have not been installed or maintained according to maintenance or care instructions;
10.4.6 any alterations or repairs to the Products not performed by us or with our prior written consent;
10.4.7 damage or defects caused to the Products due to misuse, unusual, non-recommended or negligent use;
10.4.8 damage caused by excessive wind or by other environmental factors.
10.4.9 damage due to normal wear and tear, vermin, excessive weather conditions, force majeure events, loss or damage beyond our control, installation and/or maintenance executed not in accordance with the manufacturers and/or our instructions,
10.4.10 natural wear and tear condition. Timber as a natural substance may expand and contract reacting to environment conditions which may result in developing cracks and this is considered as natural wear and tear condition.
10.4.11 natural behaviour of timber: Timber is a natural product and prone to changes in appearance, including some movement and the occurrence of small knot holes or splits in extreme temperatures and weather conditions. Any splits, knots or similar visual imperfections in the timber will not affect the structural integrity of the product in any way.
10.5 Making a claim: You may make a claim under this Warranty by providing us notice in writing to our address specified in clause 9.1 containing reasonable description backed up by visual evidences of the defect in the Good(s). Visual evidences must indicate that the Products are just uncovered and still on a pallet.
10.6 Repair and replacement: We will during the Warranty period and subject to clause 9.7, repair or replace at our option, any component or part of the Products which our examination shows to be defective at the Buyer’s request.
10.7 Limitation: Our obligations under this Warranty are limited to repairing or furnishing a replacement part to replace any part which has proven to have been defective. In the event that in our judgment a replacement is not available, we will be responsible for the wholesale, not the retail price of the Products.
10.8 Transport charges: We will be liable for all transport charges incurred in returning defective components or parts for repair or replacement together with the cost of returning them to you.
10.9 Replacement part warranty: A replacement part supplied by us during the warranty period shall be covered by the warranty for the unexpired portion of the warranty period which covered the original Products.
10.10 In addition to rights: The benefits to you given by this Warranty are in addition to your other rights and remedies under the relevant laws.
10.11 Regulation 90: This Warranty against defects is provided in addition to other rights and remedies you may have at law. If you are a consumer for the purposes of the Australian Consumer Law (ACL), the following statement applies to you. Our Products come with guarantees that cannot be excluded under the ACL. You are entitled to a replacement or refund for a major failure and for compensation for any reasonably foreseeable loss or damage. You are entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure.
11 EXCLUSIONS AND LIMITATIONS
11.1 ACL exception: The exclusions and limitations in this clause 10 are subject to clause 11 (Statutory Rights).
11.2 Excluded rights: All express or implied representations, terms, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to these Terms and Conditions, that are not contained in it, are excluded to the fullest extent permitted by law.
11.3 Limitation of liability: Any liability arising in relation to Products or Services the subject of your Order or that we supply to you, however arising and whether for consequential loss or otherwise, including any liability arising by virtue of any representation, warranty or statutory guarantee whether express or implied by law, is hereby excluded to the fullest extent permitted by law.
11.4 Limitations: No warranty is given and we will not be liable for:
In the case of Products
11.4.1 alterations to Products for which we are not responsible;
11.4.2 defects or depreciation caused by wear and tear, accidents, corrosion, prolonged storage, excessive wind, dampness or other abnormal conditions or effects;
11.4.3 damage or failure caused by unusual or non-recommended use, misuse or application of the Products; or
11.4.4 loss caused by any factors beyond our control;
11.4.5 damage caused by inappropriate storage conditions; and
In the case of Services
11.4.6 interference with our Services for which we are not responsible; or
11.4.7 loss caused by any factors beyond our control.
11.5 Indirect loss: We will not be liable for any special, indirect, consequential or economic loss or damage or loss of profits (in contract or tort or arising from any other cause of action) suffered by you or any other person resulting from any act or omission by us (including breach, termination or non-observance of the terms of an Order or agreement which incorporates these Terms and Conditions).
11.6 Total liability: Our total liability to you for breach of these Terms and Conditions or breach of our contractual obligations or duties at law or in equity (however arising) is limited at our option to:
In the case of Products
11.6.1 the replacement of the Products or the supply of equivalent products;
11.6.2 the repair or rectification of the Products;
11.6.3 the payment of the wholesale cost of replacing the Products or of acquiring equivalent products; or
11.6.4 the payment of the cost of the repair or rectification of the Products; and
In the case of Services
11.6.5 the supply of the Services again; or
11.6.6 the payment of the cost of having the Services supplied again.
11.7 No reliance: You acknowledge and agree that:
11.7.1 you have and will make your own assessment of the fitness for purpose and suitability of any Products supplied to you;
11.7.2 you do not and will not rely on our skill or judgment nor that of any person by whom any prior negotiations or arrangements in relation to the acquisition of any Products or supply of Services, were conducted or have been or will be made; and
11.7.3 you have not made nor will make known to us or a manufacturer of Products (directly or via any person and whether expressly or impliedly) the particular purpose for which you acquire Products.
11.8 Third party work: If we obtain products or services from a third party in order to carry out your instructions or complete an Order:
11.8.1 we will not be liable for any breach of these Terms and Conditions if that breach is as a result of or is connected with the supply by a third party of such products or services;
11.8.2 we acquire such products or services as agent for you not as principal and will have no liability to you in relation to the supply of these products or services;
11.8.3 any claim by you in relation to the supply of such products or services must be made directly against that third party; and
11.8.4 you must pay for such products or services from the third party plus the cost of or relevant fee for us performing such services as agent for you (whether separately identified or not). You do not require us to account to you for any commissions or benefits we may receive from such a third party supplier in connection with the supply of such products or services to you and authorize us to contract on your behalf as we think fit.
11.9 We give no warranty in respect of any products or services that are supplied or carried out or provided to you by a third party even where forming part of an Order. Any warranties, statutory guarantees or other rights will be governed by the terms of supply by that provider to you and relevant laws.
12 STATUTORY RIGHTS
12.1 No restriction: Nothing in these Terms and Conditions excludes, restricts or modifies any condition, term, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include the ACL and any relevant State or Territory legislation containing implied terms and/or statutory guarantees or warranties which operate to protect the purchasers of products and services in various circumstances.
12.2 Unfair contract: If section 23 of the ACL applies to any provisions in these Terms and Conditions, any such provision(s) shall be void to the extent it is unfair within the meaning of section 24 of the ACL.
13.1 Subject to the PPSA: The provisions of this clause 12 are subject to the provisions of the PPSA and clause 13 (Security Interest).
13.2 Possession as bailee: After delivery of the Products, until full Payment has been made you shall possess the Products as bailee only.
13.3 Title: We will retain absolute title over the Products until:
13.3.1 we have received Payment in full in respect of the Products; or
13.4 Identification: Until full title in the Products has passed to you, you will ensure that:
13.4.1 any identifying plate, mark or packaging number on any of the Products is not removed, defaced or obliterated; and
13.4.2 the Products are identifiable and distinguishable from any other products that may be in your possession and as to each particular Invoice of Products.
14 SECURITY INTEREST
14.1 Security Agreement: This clause 13 sets out the Security Agreement between you (Grantor) and us (Secured Party).
14.2 Creation of Security Interest: The Grantor grants to the Secured Party a Security Interest in the Products supplied by us to you, including all related proceeds (Collateral), as security for all or part of the Payment of any amount relating to the Products in accordance with these Terms and Conditions or otherwise. For the avoidance of doubt, this Security Interest is also a Purchase Money Security Interest (PMSI) in the Collateral.
14.3 Ranking: Subject to the priority rules set out in the PPSA, this Security Interest ranks in priority ahead of all other security interests in the Collateral.
14.4 Continuing obligation: This Security Interest is a continuing security and the Grantor’s obligations under this Security Agreement continue until it has been terminated in accordance with this Security Agreement.
14.5 Attachment: The Security Interest attaches to the Collateral by virtue of the Grantor’s possession of the Products as bailee under clause 12.2.
14.6 Perfection: The Grantor irrevocably gives authority to the Secured Party to register a financing statement with respect to the Security Interest on the PPSR. Despite this provision, the Secured Party may perfect this Security Interest by any other means in accordance with the PPSA.
14.7 Information: The Grantor shall provide the Secured Party with any information required for the Secured Party to register a financing statement or a financing change statement with respect to this Security Interest on the PPSR.
14.8 Identification: Until this Security Interest in the Collateral has been extinguished, the Grantor will ensure that, as far as is reasonably practicable:
14.8.1 any identifying plate, mark or packaging number on any of the Collateral (including Products) is not removed, defaced or obliterated; and
14.8.2 the Collateral is identifiable and distinguishable from any other products or products that may be in the Grantor’s possession and as to each particular Invoice of Products comprising the Collateral.
14.9 Accessions: The Grantor acknowledges that this Security Interest continues to apply to Collateral that becomes an accession to other products.
14.10 Remedies: Until this Security Interest in the Collateral has been extinguished, if:
14.10.1 a Default Event occurs in respect of the Grantor; or
14.10.2 the Grantor is in breach of these Terms and Conditions, the Secured Party may as it sees fit and without notice to the Grantor, seize, retain or redeem the Collateral, or seek any and all remedies provided under Chapter 4 of the PPSA or any other remedies provided at law or in equity, including those set out in clause 13.11.
14.11 Right of entry: In additional to any rights given to the Secured Party under Chapter 4 of the PPSA, the Grantor irrevocably:
14.11.1 grants the Secured Party the right to:
A demand the immediate return of the Products to the Secured Party;
B enter the Grantor’s premises to search for and seize the Products without notice or liability to the Grantor; and
C retain, sell or otherwise dispose of those Products in any manner it sees fit; and
14.11.2 indemnifies, and keeps indemnified, the Secured Party against any claim (including in negligence) in respect of any damage to the property of, or the premises occupied by, the Grantor or any consequential loss caused by another party arising relating to searching for and seizing any Products in accordance with this clause 13.11.
14.12 Permitted use and sale: The Grantor may only sell or deal with any of the Collateral (including accessions) in respect of which full Payment has not been received if:
14.12.1 the Secured Party has not exercised a remedy under clause 13.10;
14.12.2 the proposed transaction is a bona fide transaction to a third party at market value conducted in the ordinary course of business of the Grantor;
14.12.3 the proposed transaction does not create a security interest in the Collateral that ranks above this Security Interest;
14.12.4 all proceeds of the proposed transaction is:
A immediately paid to the Secured Party; or
B held on trust for the Secured Party in a separate account, payable to the Secured Party on demand; and
14.12.5 unless otherwise obligated by law, the Grantor does not disclose to a third party that the proposed transaction is subject to this Security Agreement or that the proceeds will be immediately paid to the Secured Party or held on trust for the Secured Party.
14.13 Costs: The Grantor shall pay all costs incurred by the Secured Party (including costs on a solicitor-client basis and debt collector’s costs) arising out of this Security Agreement, including costs in relation to:
14.13.1 seizure, retention, redemption or any other remedy exercised pursuant to clause 13.10; and
14.13.2 the enforcement of its rights under this Security Agreement (including matters incidental to it).
14.14 Extinguishment: The Security Interest is extinguished only if:
14.14.1 one of the following applies:
A all amounts payable in relation to the Collateral have been paid in full;
B the Secured Party has exercised a remedy under this Security Agreement;
C the Collateral has been dealt with by the Grantor pursuant to clause 13.12; or
D a third party has taken free of this Security Interest as provided by the PPSA; and
14.14.2 all obligations under this Security Agreement have been satisfied by the Grantor.
14.15 Removal: The Secured Party acknowledges its obligation to lodge a financing change statement to remove this Security Interest from the PPSR upon the extinguishment of this Security Interest in accordance with clause 13.14.
14.16 Waiver: Sections 95, 118, 121(4), 125, 130, 132 and 135 of the PPSA shall not apply to the extent that they impose obligations on the Secured Party.
14.17 Waiver of receipt of statements: The Grantor irrevocably waives its right to receive from the Secured Party a copy of any financing statement, financing change statement or verification statement that is registered, issued or received at any time in relation to this Security Agreement.
14.18 Change of name: The Grantor shall immediately notify the Secured Party in writing of any change of name of the Grantor.
14.19 Acknowledgement: The Grantor acknowledges due notice of this Security Agreement with acceptance of these Terms and Conditions.
15 INTELLECTUAL PROPERTY
15.1 Our intellectual property: All of our Intellectual Property Rights in and relating to the production, development and supply of the Products or Services, including but not limited to drawing, illustrations, specifications, and other literature remains our property and shall not be transferred, assigned, licensed, reproduced, disclosed or otherwise given to any other person or otherwise used or exploited by you without our prior written consent.
15.2 Confidentiality: You shall keep confidential and shall not use any confidential information communicated by us to you without our prior written consent.
16.1 Prices exclusive of GST: Unless otherwise agreed, prices with respect to any taxable supply are exclusive of GST.
16.2 GST payable in addition: You must pay to us all GST in addition to any other amounts payable by you to us in respect of a taxable supply, which will be payable by you when required to pay for the Products or Services.
16.3 Issue of tax invoice: We will issue a tax invoice for any taxable supply to you, which will enable you, if permitted by the GST Law, to claim a credit for GST paid by you.
16.4 Third party supplies: If GST is payable for a taxable supply by a third party, we will request that party to provide you with a tax invoice.
17.1 Indemnity: You agree to indemnify and keep us indemnified in respect of all damages, losses, costs and expenses (including legal costs) that we may incur as a result of your breach or alleged breach of these Terms and Conditions.
17.2 Termination: If a Default Event occurs:
17.2.1 we may, without limiting any other right we have under these Terms and Conditions, terminate any outstanding Order and any contract for the supply of Products and Services to you; and
17.2.2 all Payments and any other money under these Terms and Conditions becomes immediately payable.
17.3 Lawful purpose: You shall ensure that the Products and Services are used only for lawful purposes and in accordance with any applicable laws.
17.4 Binding: These Terms and Conditions shall bind our successors, administrators and permitted assigns and your executors and permitted assigns, or, being a company, its successors, administrators and permitted assigns.
17.5 Assignment: We may without notice to you assign, transfer and/or sub-contract our rights and/or obligations (in whole or in part) under these Terms and Conditions. You may not assign, transfer, hold on trust or otherwise delegate any of your rights or obligations under these Terms and Conditions without our prior written consent.
17.6 Time of the essence: Time shall be of the essence in relation to any date or period under these Terms and Conditions.
17.7 New Terms and Conditions: If we adopt new terms and conditions for the supply of Products and Services:
17.7.1 you will be given written notice (if you are a Customer at the relevant time); and
17.7.2 unless otherwise agreed, they will apply to the supply of Products and Services after you accept such new terms and conditions.
17.8 Variation: We may vary these Terms and Conditions by providing you 30 days written notice.
17.9 Force Majeure: If a Force Majeure Event occurs, we may:
17.9.1 totally or partially suspend any Order, any part of an Order or any deliveries relating to an Order during any period in which we may be prevented or hindered from delivering by our normal means of supply or delivery due to that Force Majeure Event; and
17.9.2 elect to extend at our discretion the period for performance of an obligation under these Terms and Conditions as is reasonable in all the circumstances.
17.10 Severability: Each clause in these Terms and Conditions is severable and if any clause is held to be illegal or unenforceable, then the remaining clauses will remain in full force and effect.
17.11 Waiver: No failure, delay, relation or indulgence on our part in exercising any power, right or remedy precludes any other or further exercise of that or any other power, right or remedy.
17.12 Governing law: These Terms and Conditions shall be governed by the laws of the State of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of the State of New South Wales.
18 INTERPRETATION AND DEFINITIONS
18.1 Personal pronouns: Except where the context otherwise provides or requires:
18.1.1 the terms we, us or our refers to YZY PTY LTD (ACN 169 002 957) ; and
18.1.2 the terms you or your refers to the Buyer.
18.2 Defined terms: In these Terms and Conditions, unless otherwise provided, the following terms shall have their meaning as specified:
ACL means the Australian Consumer Law under the Consumer and Competition Act 2010 (Cth) as amended.
Charges means any sales tax, excise duties, customs duty, transfer duty, GST or any other taxes, duties or charges applicable in respect of the provision of the Products and Services.
Collateral means property that is subject of a security interest.
Buyer means any person or entity that places an Order with us and agrees by conduct or by virtue of notice or otherwise to be bound by these Terms and Conditions, including any related company, related party, officer and authorised person of the relevant person.
Default Event means any one of the following events:
(a) you fail to make any payment when due, whether for the Products and Services or otherwise;
(b) Winding Up commences against you;
(c) a receiver is appointed to you;
(d) you become insolvent, bankrupt or commit an act of bankruptcy;
(e) proceedings are commenced or an application is made for the appointment of any persons listed in items (b) to (e) above; or
(f) a mortgagee or their agent enters into possession of your assets.
Default Interest means as defined in clause 5.
Delivery means the delivery of the Products and Services in accordance with clause 6.1.
Force Majeure Event means circumstances beyond our reasonable control, which shall include, but not be limited to compliance with any laws, regulations, orders, acts, instructions or priority request of any government, or any department or agency, civil or military authority, acts of God, acts of the public enemy, your acts or omissions, fires, floods, strikes, lockouts, embargoes, wars, labour or material shortages, riots, insurrections, defaults of our suppliers or subcontractors, delays in transportation, loss or damage to Products in transit.
Products means products sold by YZY PTY LTD from time to time including but not limited to garden cabanas, sheds or any other outbuilding structure kits.
Grantor means the person who has the interest in property to which a security interest is attached.
GST and GST Law have the meaning as set out in the A New Tax System (Products and Services Tax) Act 1999 (Cth).
Intellectual Property Rights means all forms of intellectual property rights (whether registered or unregistered) in copyright, designs, patents, trademarks, domain names, trade secrets, know-how, confidential information, and all other similar proprietary rights and all extensions and renewals thereof anywhere in the world which currently exist and/or are recognised in the future.
Invoice unless otherwise agreed means the invoice issued on Order of the Products and Services specified in your Order.
Material means any material in which you have Intellectual Property Rights (under licence or not) provided by you for use by us in the production, development and supply of the Products and Services to you.
Order means an order for Products and Services received by us in writing or otherwise.
Payment means payment of any amount relating to Products or Services in accordance with these Terms and Conditions.
PMSI means a purchase money security interest as defined by section 14 of the PPSA.
PPSA means the Personal Property Securities Act 2009 (Cth) as amended, including any regulations made pursuant to it.
PPSR means the Personal Property Securities Register.
Quote means a quotation by us for the supply of particular Products and Services containing details as specified in clause 2.2.
Secured Party means a person who holds the benefit of a security interest.
Security Agreement means the security agreement set out in clause 13 (Security Interest).
Security Interest means the security interest created in clause 13 (Security Interest).
Services means services provided by us or third parties from time to time.
Winding Up means commencing to be wound up, or suffering a provisional liquidator, liquidator, official manager or any other administrator of the affairs of insolvent companies to be appointed.