STANDARD TERMS & CONDITIONS OF CONTRACT
ROUX INVESTMENTS PTY LTD
“SHIPPING CONTAINER POOLS”
17 CORBOULD ROAD COOLUM BEACH QLD 4573 AUSTRALIA
SHIPPING CONTAINER POOLS
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TERMS & CONDITIONS
These are Roux Investments Pty Ltd trading as Shipping Container Pools’s Standard Terms and conditions, which will apply to every contract whereby you, as the customer, order the goods and services (set out in the Order) from Shipping Container Pools
The contract between Shipping Container Pools and you for the sale and supply of the Products is on the following Terms and Conditions (“Terms”), as well as any additional term contained in:
the duly completed Order that is accepted by Shipping Container Pools in writing, and the relevant part of Shipping Container Pools’ Current Price List.
The Contract date is the date Shipping Container Pools provides an acceptance to You, You may not cancel an Order accepted by Shipping Container Pools unless Shipping Container Pools agrees in writing to its cancelation.
Cancellation, if accepted, may be conditional on you paying the cost and expenses incurred by Shipping Container Pools.
You must provide your full Name, delivery address and contact details on the order form unless already provided.
In these Terms the following words have the corresponding meaning: “Acceptance” means any of the following:
An order is accepted by Shipping Container Pools when Shipping Container Pools acknowledges acceptance of your order in writing or electronic means or provides you with the Product/Products/Services.
The delivery of the products
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended.
“Communicates” means all tenses of the verb and any form of communication (excluding oral communications) but including written communications, electronic communications and facsimile communications
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“SCP” means Roux Investment PTY LTD, trading as “Shipping Container Pools” (ACN: 133207815)
“SCP Products” means all of Shipping Container Pools’ products, parts and accessories manufactured and/or sold by Shipping Container Pools.
“SCP Yard” means the place designated by SCP as the place of manufacture and storage of of equipment and accessories.
“Contract” means the contract referred to in Clause 2 hereof.
“Current Price List” means the price list of the products provided by SCP from time to time to its customers/dealers (Inclusive of GST, unless stated otherwise)
“Delivery” means delivery of the Products as stated in the Order which for pools is at the site of installation ( or such other address as nominated by the customer), immediately when the product is lifted off the delivery truck, or
For all other Products, it is when the products are dispatched by SCP to you from the place of dispatch or such other place as SCP my communicate to the customer as being the place of delivery.
“Installation” means (where applicable) the installation of the products at the site of installation.
“Intellectual Property” means all copyright, design and drawings of the products and all now how and information pertaining to the design or manufacture of the products.
“Order” means the “SCP Order Form” for the purchase of the products duly completed by you setting out:
Your Full Details, and
The full details of the products ordered.
“Parties” means SCP and You (the Customer)
“Person” means any natural person, company or entity.
“Price” means the purchase price of the products inclusive of GST determined by reference to SCP’s current price list and as set forth in the order.
“Pools” means a SCP pool, spa, wader or any other fibreglass products.
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“Products” means the SCP products as described in the Order, and in accordance with the Specifications.
“PPSA” means the Personal Property Securities Act 2009 (Cth)and its associated Regulations as amended
“Specifications” means SCP’s specifications applicable to each of the products and, where applicable, specifications for installation.
“You” means the person described in the SCP’s order as the customer.
SCP will manufacture and / or supply the products ordered by you for the price. The price must be paid within the terms on the invoice before the delivery of the products.
Where there is any changes in the costs incurred by SCP in relation to the Products, SCP may vary its price to take account of any such change, by notifying you.
Confirmation of Order an Production Process (Pools)
SCP will contact you twice prior to building your Pool and on both occasions you will be required to provide a response.
The first time you will be asked to check and confirm the order details that have been input into our system, by replying to our email.
The second time you will be asked to check your order details again and confirm the delivery address, an estimated completion date will also be provided.
Once SCP has received both of your responses, your confirmed order will be placed inline for production on or around the intended production date.
SCP reserves the right not to proceed with the production of your order until both confirmation of payment and confirmation of order are received from when your account is overdue.
SCP may refuse to accept any order at its absolute discretion.
It is your responsibility to provide SCP with your specific requirements in relation to the products in writing.
Return of boxed goods (this clause does not apply to pools)
Products may only be returned to SCP:
(a) if the request to return is made in writing to SCP within 3 days of delivery, stating the reason for the requested return.
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(b) if the goods are not optioned or customised in any way or produced to your specific requirements in part or in whole.
(c) with the prior written authority of SCP.
(d) if you pay for all transport and handling costs
(e) on the acceptance of the restocking and handling charge, such as being a minimum of 10% of the invoice due, except where the wrong goods were delivered by SCP, in which case there will be a restocking or handling charge, and
(f) if the goods are in an undamaged and unsoiled condition and in the original packaging, unless with the prior written consent of SCP
Delivery of products
Unless otherwise agreed, SCP will deliver the products safely and securely packed.
You must be present on delivery to inspect the product and sign Acceptance of Delivery document.
If SCP is unable to effectively delivery the products to you by the time or times of delivery or in accordance with the schedule of delivery, then SCP shall promptly notify you in writing to that effect with estimates of the revised time of delivery. You must pay the cost of any re-delivery
Time of delivery and delay
SCP will use reasonable commercial endeavours to ensure that the products are delivered on or prior to the time to times of delivery set forth in the order, however any time for delivery is an estimate only and not a contractual commitment. SCP in not liable for any cost incurred by you as a result of delayed delivery.
If SCP cannot complete delivery by any estimated date, it will complete delivery within a reasonable time.
You acknowledge that SCP is dependent upon various suppliers of materials and components in order to be able to deliver the products to you. Any delay in the manufacturing of its products caused by any shortages or unavailability of materials or components may give arise to a delay in delivery
Inspection of the products
You must inspect the products on delivery in accordance with Clause 7 or at such reasonable times and places as SCP shall specify.
Immediately on delivery of the products, the duty of care (including the insurable risk) for the products passes to you.
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Subject to the following provisions of this clause, SCP will not be liable for any shortages, damage or non-compliance with the order unless you notify SCP with
full details and description within 7 day of delivery, otherwise you are deemed to have accepted the products.
Where you provide to SCP the details of the rectifications required within the time provided, SCP shall, if it accepts that such shortages, damage or non-compliance with the order exist and require rectification, promptly carry out all those requirements so as to bring the products within the terms of the order.
If in the reasonable opinion of SCP the details of the rectification sought by you are outside the order, SCP shall within two (2) working days of receiving such details of rectifications inform you in writing of those parts of the rectification which SCP says are not required in order for the products to comply with the order.
If you and SCP cannot agree on the details of rectification then either part may require the products to be returned to SCP .The cost of such return and risk involved shall be borne by you.
When any shortages, claim for damaged products or non-compliance with the order is accepted by SCP, SCP may, at its option, repair the products, replace the products, or refund the price of the products. Where SCP chooses to repair the products, You can accept or reject such repairs.
If you are a consumer as defined in the ACL, nothing in this clause 9 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL
Unless otherwise agreed in writing, 50% payment is due before the order will be deemed as an order. The remaining 50% is payable before the dispatch of the product. Payment methods available include credit cards or direct deposit. If paying by credit card a surcharge applies (see accounts for details)
Payment is not deemed made until SCP has received payment in clear funds.
SCP always reserves the right at anytime to require full payment before Production or completion of a product.
SCP aways reserves the right at any time to require full payment for custom orders involving engineering and / or aesthetic modifications.
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Cancelled product orders
If a product is manufactured to your order and you cancel the order after production, SCP reserves the right to invoice the product in full. This invoice is payable within 7 days.
SCP reserves the right to resell the product where any order remains undelivered 30 days after the delivery date, or is cancelled. You will be credited with the proceeds of the sale less 10% cancellation fee and less any additional transportation cost or other damages, cost or expenses incurred by SCP.
If you default on payment by the due date of any amount payable to SCP, then all money which would become payable by you to SCP at a later date on any account, becomes immediately due and payable without the requirement of any notice to you, and SCP may, without prejudice to any of its other accrued or contingent rights:
(a) charge you interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (VIC) plus 4 percent for the period from the due date until the date of payment in full;
(b) charge you for, and you must indemnify SCP from, all costs and expenses (including without limitation all legal costs and expense) incurred by it resulting from the default or in taking action to enforce compliance with the contract or to recover any products;
(c) cease or suspend supply of any further products to you
(d) by written notice to you, terminate any uncompleted Contract Clauses 12(c) and 12(d) may also be relied upon, at SCP’s option.
(a) where you are a natural person and become bankrupt or enter into scheme of arrangement or any assignment or composition with or for the benefit of you creditors or any class of your creditors generally; or
(b) where you are a corporation and enter into a scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally, or have a liquidator, administrator, receiver or manager or similar functionary appointed in respect of our assets or any action is taken for, or with the view, your liquidation (including provisional liquidation), winding up or dissolution without winding up
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13. Delays and storage
If the product delivery is delayed due to natural causes or due to improper preparations at site (delivery address) SCP will store the completed product at the SCP Yard, which will be confirmed in writing from both parties.
The maximum time stored at the SCP yard is two weeks, before a storage fee of $20 per day will apply to the products. This would be invoiced separately and be
payable to SCP.
Any “wear and tear” incurred while in storage will not be liable to SCP and will be deemed normal for the product being exposed to the natural elements.
If any restoration or “freshen up” is required (to be confirmed in writing) before the dispatch you would incur the costs (materials and labour).
Any storage fees organised during shipping would not be liable to SCP and will be passed on to you, unless otherwise indicate in writing and confirmed by both parties.
Any damage or “wear and tear” during handling and / or storage (during transport) would not be liable to SCP and would be passed on to you, unless in writing and confirmed by both parties
This contract does not oblige SCP to accept any variation in the products to be supplied. SCP will however (without obligation) consider any variations sought by you.
The term of any variation will not be binding unless and until they are agreed in writing and signed by SCP and You. They will then constitute a variation to this Contract.
If you request a variation to the order, SCP may increase the price amount for the variation.
Until SCP receives full payment on cleared funds for all products supplied by it to you, as well as all other amounts owing to SCP by you:
(a) title and property in all products remains vested in SCP and does not pass to you.
(b) in addition to its rights under the PPSA, SCP may without notice, enter any premises where it suspects the product are and remove them, notwithstanding that they may have been attached to the goods not the property of SCP, and for this
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purpose you irrevocable licence SCP to enter such premise and also indemnify SCP from and again all costs, claims, demands or actions by any party from such actions.
Where the products are to be installed by you, you acknowledge and agree that in the event that payment is not made in accordance with this contract then no further installation shall take place until the products have been fully paid.
The parties agree that the risk of damage to the products shall pass to you on delivery of the products notwithstanding that site has not been passed. In the event that the products are damaged after delivery but before title has passed you shall continue to be liable to SCP to pay the balance (if any) of the full price in accordance with this contract.
16. Personal Property Securities Act
Notwithstanding anything to the contrary container in these Terms, the PPSA allies to these Terms
For the purpose of the PPSA.
(a) terms used in clause that are defined in the PPSA have the same meaning as in the PPSA
(b) these terms are a security agreement and SCP has a purchase Money Security Interest in all present and future products supplied by SCP to you and the proceeds of the products.
(c) the security interest is a continuing interest irrespective of whether there are ones or obligations owing by you at any particular time, and
(d) you must do whatever is necessary in order to give a valid security interest over the products which is able to be resisted by SCP on the Personal Property Securities Register
The securities interest arising under this clause attaches to the products when the products are collected or dispatched from SCP’s premises and not at any later time.
Where permits by the PPSA, you waive any rights to relieve the notifications, verifications, disclosures to other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
SCP and you agree to contract out of and nothing in the provisions of sections 96, 125, 129,142 and 143 of the PPSA will apply to these Terms.
To the extent permitted by the PPSA, you agree that:
(a) the provisions of chapter 4 of the PPSA which are for your benefit or which place obligations on SCP will apply only to the extent that they are mandatory or SCP agrees to their application in writing, and
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(b) where SCP has the rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
You must immediately upon SCP’s request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this contract, and
(b) procure from any person considering by SCP to be relevant to its security positions such agreement and waivers (including as equivalent to those above) as SCP may at any time require.
SCP may allocate amounts received from you in any manner SCP determines, including in any manner require to preserve any purchase Money Security it has in the products supplied by SCP
For the purpose of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of the products and details of the products shall be kept confidential at all times. Neither party may disclose any information pertaining to these Terms or the sale of the products, except as otherwise required by law or is already in the public domain.
SCP in not liable to you in any way arising under or in connection with the installation, use of, storage or any other dealing with the products by you or any third party
SCP in not liable for any indirect or consequential losses or expenses suffered by you or any third party, how so ever caused, including not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of liability imposed by the ACL.
You acknowledge that:
(a) you have not relied on any service involving skill and judgement, or on any advice, recommendations, information or assistance provided by SCP in relation to the products or their use or application.
(b) you have not made known, either expressly or by implication, to SCP any purpose for which you require the products and you have the sole responsibility to satisfy yourself that the products are suitable for your use.
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Nothing in the Terms is to be interpreted as excluding, restricting or modifying the application of any State or Federal Legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
Installation of the products are not part of the contract. Unless otherwise agreed in writing, installation of the products is your exclusive responsibility. SCP will not be responsible for any damage done to the products during , or as a consequence of their installation, transportation or during or as a consequence of you taking delivery of the products at the site of installation / holding yard / transfer process.
Ownership of intellectual property
Nothing in the contract between the parties gives you any interest or right to the intellectual property in the product which Intellectual Property you acknowledge is owned by SCP
The failure be either you or SCP to exercise or enforce any rights conferred hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
Any notice required to be given hereunder shall be in writing and shall be deemed to have been duly given if sent by pre-paid post or email addressed to the party concerned at its principal place of business or last known address.
This contract between SCP and you shall be governed by and construed an interpreted in accordance with the laws of Queensland. Any dispute shall be subject to the exclusive jurisdiction of the courts of Queensland, the Federal Court of Australia and to courts entitled to hear appeals from those courts.
Where herein words importing to singular number of plural number are used they
shall include the plural number and singular number respectively and where words herein are used importing the masculine gender they sell include the feminine or neuter gender respectively.
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In the event of any dispute arising between us as to our respective rights or obligations under the contract or as to either of us have breached or failed to
meet those obligations then both parties agree to meet tighter and in good faith see to resolve the dispute. If notwithstanding this clause the dispute ramming unresolved either party may take such actions as it thinks fit to enforce its rights against the other.
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