Terms & Conditions Of Trade

Terms & Conditions Of Trade

1. Definitions;

  • 1.1 “Safe Surface Australia” means Safe Surface Australia (ABN 36 928 300 174), its successors and assigns or any person acting on behalf of and with the authority of Safe Surface Australia.
  • 1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
  • 1.3 “Goods” means all Goods or Services supplied by Safe Surface Australia to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
  • 1.4 “Price” means the Price payable for the Goods as agreed between Safe Surface Australia and the Customer in accordance with clause 4 below.

2. Acceptance;

  • 2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
  • 2.2 These terms and conditions may only be amended with Safe Surface Australia consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Safe Surface Australia.

3. Change in Control;

  • 3.1 The Customer shall give Safe Surface Australia not less than (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customers name, address, contact phone or fax numbers). The Customer shall be liable for any loss incurred by Safe Surface Australia as a result of the Customers failure to comply with this clause.

4. Price and Payment;

  • 4.1 At Safe Surface Australia sole discretion the Price shall be either;
    • a) as indicated on any invoice provided by Safe Surface Australia to the Customer, or
    • b) Safe Surface Australia quoted Price (subject to clause 4.2) which shall be valid for the period stated in the quotation or otherwise for a period of seven (7) days.
  • 4.2 Safe Surface Australia reserves the right to change the Price if a variation to Safe Surface Australia quotation is requested.
  • 4.3 At Safe Surface Australia sole discretion a deposit may be required.
    Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the dates determined by Safe Surface Australia, which may be;
    • a) on delivery of the Goods;
    • b) before delivery of the Goods;
    • c) by way of instalments/progress payments in accordance with Safe Surface Australia payment schedule;
    • d) thirty (30) days following the date of the invoice;
    • e) the date specified only invoice or other form as being the date for payment; or
    • f) failing any notice to the contrary, the data which is seven (7) days following the date of any invoice given to the Customer by Safe Surface Australia.
  • 4.4 Payment may be made by cash, bank cheque, electronic/online banking, credit card or by any other means as agreed to between the Customer and Safe Surface Australia.
  • 4.5 Unless otherwise stated the Price includes GST. In addition to the Price the Customer must pay to Safe Surface Australia an amount equal to any GST on the Goods. The Customer must pay GST, without deduction or set off on any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

5. Delivery of Goods

  • 5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that;
    the Customer or the Customer’s nominated carrier takes possession of the Goods at Safe Surface Australia address: or
    Safe Surface Australia (or Safe Surface Australia nominated carrier) delivers the Goods to the Customers nominated address even if the Customer is not present at the address.
    At Safe Surface Australia sole discretion the cost and delivery is either included in the Price or is in addition to the Price.

    • a)The Customer must take delivery by receipt or collection of the Goods whenever they are intended for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Safe Surface Australia shall be entitled to charge a reasonable fee for and/or storage.
    • b)Safe Surface Australia may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
  • 5.2 At Safe Surface Australia sole discretion the cost and delivery is either included in the Price or is in addition to the Price.
  • 5.3 The Customer must take delivery by receipt or collection of the Goods whenever they are intended for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Safe Surface Australia shall be entitled to charge a reasonable fee for and/or storage.
  • 5.4 Safe Surface Australia may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
  • 5.5 Any time or date given by Safe Surface Australia to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and Safe Surface Australia will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.

6. Risk;

  • 6.1 Risk of damage to or loss of the Goods passes to the Customer on delivery and the Customer must insure the Goods on or before delivery.
  • 6.2 If any of the Goods are damaged or destroyed following delivery that prior to ownership passing to the Customer, Safe Surface Australia is entitled to receive all insurance proceeds payable for the Goods the production of these terms and conditions by Safe Surface Australia is sufficient evidence of Safe Surface Australia rights to receive the insurance proceeds without the need for any person dealing with Safe Surface Australia to make further enquiries.
  • 6.3 If the Customer requests Safe Surface Australia to leave Goods outside Safe Surface Australia premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
  • 6.4 Where the Customer is to supply Safe Surface Australia with any design specifications (including but not limited to CAD drawings) the Client shall be responsible for providing accurate data. Safe Surface Australia shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Client.
  • 6.5 Where Safe Surface Australia is required to install the Goods the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and Safe Surface Australia shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation, and the customer indemnifies Safe Surface Australia for any such claim, demand, loss, damages, costs and expenses.
  • 6.6 Where Safe Surface Australia is required to install anti-slip treatments, Safe Surface Australia shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused should any incidents arise.
  • 6.7 The Client agrees Safe Surface Australia shall not be held responsible for any faults and or deterioration that are existing on the Client’s premises but not visible to Safe Surface Australia at the time of quoting.

7. Access;

  • 7.1 The Customer shall ensure that Safe Surface Australia has clear and free access to the work site at all times to enable them to undertake the works. Safe Surface Australia shall not be liable for any loss or damage to the site unless due to the negligence of Safe Surface Australia.

8. Title;

  • 8.1 Safe Surface Australia and the Customer agree that ownership of the Goods shall not pass until;
    • a) the Customer has paid Safe Surface Australia all amounts owing to Safe Surface Australia; and
    • b) the Customer has met all of its other obligations to Safe Surface Australia
  • 8.2 Receipt by Safe Surface Australia of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
  • 8.3 It is further agreed that;
    • a) until ownership of the Goods passes to the Customer in accordance with clause 8.1 that the Customer is only a Bailee of the Goods and must return the Goods to Safe Surface Australia on request.
    • b) the Customer holds the benefit of the Customers insurance of the Goods on trust for Safe Surface Australia and must pay to Safe Surface Australia the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
    • c) the Customer must not sell, dispose, or otherwise part with possession of the Goods. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Safe Surface Australia and must pay or deliver the proceeds to Safe Surface Australia on demand.
    • d) the Customer should not convert or process the Goods or intermix them with other Goods but if the Customer does so then the Customer holds the resulting Product on trust for the benefit of Safe Surface Australia and must sell, dispose of or return the resulting Product to Safe Surface Australia as it so directs.
    • e) The Customer irrevocably authorises Safe Surface Australia to enter any premises where Safe Surface Australia believes the Goods are kept and recover possession of the Goods.
    • f) Safe Surface Australia may recover possession of any Goods in transit, whether or not delivery has occurred.
    • g) the Customer shall not charge or grant any encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Safe Surface Australia
    • h) Safe Surface Australia may commence proceedings to recover the Price of the Goods sold notwithstanding the ownership of the Goods has not passed to the Customer.

9. Personal Property Securities Act 2009 (“PPSA”)

  • 9.1 In this clause financing statement, financing change statement, security agreement, security interest has the meaning given to it by the PPSA.
  • 9.2 The Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Safe Surface Australia to the Customer.
  • 9.3 The Customer undertakes to:
    • a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Safe Surface Australia may reasonably require to;
      • i) register a financing statement or financing change statement in relation to a security interest on the personal property securities register;
      • ii) register any other document required to be registered by the PPSA; or
      • iii) correct a defect in a statement referred to in clause 9.3 (a)(i) all 9.3 (a)(ii).
    • b) indemnify, and upon demand reimburse, Safe Surface Australia for all expenses incurred in registering a financing statement or financing change statement on the personal property securities register established by the PPSA or releasing any Goods charged thereby;
    • c) not register a financing change statement in respect of a security interest without the prior written consent of Safe Surface Australia.
    • d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a 3rd party without the prior written consent of Safe Surface Australia;
    • e) immediately advise Safe Surface Australia of any material change in its business practices are selling the Goods which would result in a change in the nature of proceeds derived from such sales.
  • 9.4 Safe Surface Australia and the Customer agrees sections 95, 115 in 125 of the PPSA do not apply to this security agreement created by these terms and conditions.
  • 9.5 The Customer waves their rights to receive notices under section 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
  • 9.6 The Customer waves their rights as a grantor and/or debtor under sections 142 and 143 of the PPSA.
  • 9.7 Unless otherwise agreed to in writing by Safe Surface Australia, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
  • 9.8 The Customer must unconditionally ratify any actions taken by Safe Surface Australia under clause 9.3 to 9.7.
  • 9.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

10. Security and Charge

  • 10.1 In consideration of Safe Surface Australia agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
  • 10.2 The Customer indemnified Safe Surface Australia from and against all Safe Surface Australia costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Safe Surface Australia rights under this clause.
  • 10.3 The Customer irrevocably appoints Safe Surface Australia and each director of Safe Surface Australia as the Customers true and lawful attorneys to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.

11 Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

  • 11.1 The Customer is deemed to have inspected the Goods on delivery and must within seven (7) days of delivery notify Safe Surface Australia in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Safe Surface Australia to inspect the Goods. If Safe Surface Australia is not so notified then the Goods shall be deemed to be of good and merchantable quality.
  • 11.2 Safe Surface Australia acknowledges that nothing in these terms and conditions purports to modify or exclude the non-excluded guarantees.
  • 11.3 Except as expressly set out in these terms and conditions or in respect of the non- excluded guarantees, Safe Surface Australia makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods.
  • 11.4 If the Customer is a consumer within the means of the CCA, Safe Surface Australia liability is limited to the extent permitted in section 64A of Schedule 2.
  • 11.5 If Safe Surface Australia is required to replace the Goods, but is unable to do so, Safe Surface Australia may refund any money the Customer has paid for the Goods.
  • 11.6 If the Customer is not a consumer within the meaning of the CCA, Safe Surface Australia liability for any defect or damage in the Goods is;
    • a) limited to the value of any express warranty or warranty card provided to the Customer by Safe Surface Australia at Safe Surface Australia sole discretion;
    • b) Limited to any warranty to which Safe Surface Australia is entitled, if Safe Surface Australia did not manufacture the Goods;
    • c) Otherwise negated absolutely.
  • 11.7 Subject to this clause 11, returns will only be accepted provided that;
    • a) the Customer has complied with the provisions of clause 11.1; and
    • b) Safe Surface Australia has agreed that the Goods are defective; and
    • c) the Goods are returned within a reasonable time with the Customers cost; and
    • d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
  • 11.8 Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, Safe Surface Australia shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of;
    • a) the Customer failing to properly maintain or store any Goods;
    • b) the Customer using the Goods for any purpose other than that for which they were designed;
    • c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
    • d) the Customer failing to follow any instructions or guidelines provided by Safe Surface Australia;
    • e) fair wear and tear, any accident, or act of God.
  • 11.9 Notwithstanding anything contained in this clause if Safe Surface Australia is required by law to accept the return and then Safe Surface Australia will only accept a return on the conditions imposed by the law.

12. Limitation of Liability

  • 12.1 The Customer accepts and acknowledges that Safe Surface Australia shall not accept liability for any damage or loss including personal injury or death in the event that the Customer chooses to install a product that subsequently proved to be insufficient for the purposes that the Customer desired to achieve particularly when this is contrary to any recommendation by Safe Surface Australia.
  • 12.2 Safe Surface Australia shall accept no responsibility for services (including but not limited to, equipment failure) undertaken by any third party contractor employed by the Customer to effect installation of the Goods. If the Customer believes that they had any claim in relation to services undertaken by that third- party, then the claim must be made against the third-party contractor in the first instance.

13. Intellectual Property

  • 13.1 Where Safe Surface Australia has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Safe Surface Australia.
  • 13.2 The Customer warrants that all designs, specifications or instructions given to Safe Surface Australia will not cause Safe Surface Australia to infringe any patent, registered design or trademark any execution of the Customer’s order and the Customer agrees to indemnify Safe Surface Australia against any action taken by a third party against Safe Surface Australia in respect of any such infringement.
  • 13.3 The Customer agrees that Safe Surface Australia may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or photographs of all Goods which Safe Surface Australia has created for the Customer.

14. Default and Consequences of Default

  • 14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Safe Surface Australia sole discretion such interest shall compound monthly at such a rate).
  • 14.2 If the Customer owes Safe Surface Australia any money the Customer shall indemnify Safe Surface Australia from and against all costs and disbursements incurred by Safe Surface Australia in recovering the debt (including but not limited to Internet administration fees, legal costs on a solicitor and own client basis, Safe Surface Australia collection agency costs, and bank dishonour fees).
  • 14.3 Without prejudice to any other remedies Safe Surface Australia may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Safe Surface Australia may suspend or terminate the supply of Goods to the Customer. Safe Surface Australia will not be liable to the Customer for any loss or damage the Customer suffers because Safe Surface Australia has exercised its rights under this clause.
  • 14.4 Without prejudice to Safe Surface Australia other remedies at law Safe Surface Australia shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts going to Safe Surface Australia shall, whether or not due for payment, become immediately payable if:
    • a) any money payable to Safe Surface Australia becomes overdue or in Safe Surface Australia opinion the Customer will be unable to make payment when it falls due;
    • b) the Customer becomes insolvent, convenes a meeting with his creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
    • c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

15. Cancellation;

  • 15.1 Safe Surface Australia may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. In giving such notice Safe Surface Australia shall repay to the Customer any money paid by the Customer for the Goods. Safe Surface Australia shall not be liable for any loss or damage whatsoever arising from such cancellation.
  • 15.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether directly or indirectly) by Safe Surface Australia as a direct result of the cancellation (including but not limited to, any loss of profits).
  • 15.3 Cancellation of orders for Goods made to the Customer’s specification, or for non- stocklist items, will not be accepted once production has commenced, or an order has been placed.

16. Privacy Act 1988;

  • 16.1 The Customer agrees that Safe Surface Australia may obtain from a credit reporting agency a credit report containing personal credit information about a Customer in relation to credit provided by Safe Surface Australia.
  • 16.2 The Customer agrees that Safe Surface Australia may exchange information about the Customer with those credit providers either named as trade referees by the Customer or are named in a consumer credit report issued by the credit reporting agency for the following purposes;
    • a) to assess an application by the Customer; and/or
    • b) to notify other credit providers of the default by the Customer; and/or
    • c) to exchange information with other credit providers as to the status of this credit account, with the Customer is in default with other credit providers; and/or
    • d) to assess the creditworthiness of the Customer.

      The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
  • 16.4 The Customer consents to Safe Surface Australia being given a consumer credit report to collect overdue payment on commercial credit (section 18K(1)(h) privacy act 1988).The Customer agrees that personal credit information may be used and retained by Safe Surface Australia for the following purposes (and for other purposes as shall be agreed between the Customer and Safe Surface Australia or required by law from time to time);
    • a) the provision of Goods, and/or
    • b) the marketing of Goods by Safe Surface Australia, its agents or distributors; and/or
    • c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
    • d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
    • e) enabling the daily operation of Customers account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
  • 16.5 Safe Surface Australia may give information about the Customer to a credit reporting agency for the following purposes;
    • a) to obtain a consumer credit report about the Customer;
    • b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
  • 16.6 Information given to the Credit reporting agencies may include;
    • a) personal particulars (the Customer’s name, gender, address, previous addresses, date of birth, name of the employer and drivers license number);
    • b) details concerning the Customer’s application for credit for commercial credit and the amount requested;
    • c) advice that Safe Surface Australia is the current credit provided to the Customer;
    • d) advice of any overdue accounts, loan repayments, and/or outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
    • e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies and longer overdue in respect of any default that has been listed;
    • f) information that, in the opinion of Safe Surface Australia, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers credit obligations);
    • g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
    • h) that credit provided to the Customer by Safe Surface Australia has been paid or otherwise discharged.

17. Confidentiality;

  • 17.1 Safe Surface Australia and the Customer agree to keep confidential any information in relation to the other party which is not in the public domain (including, but not limited to, trade secrets, processes, formulae, accounts, marketing, designs, databases and all other information held in any form).

18. General;

  • 18.1 The failure by Safe Surface Australia to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Safe Surface Australia right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
  • 18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state of New South Wales, and are subject to the jurisdiction of the courts in that state.
  • 18.3 Subject to clause 11 Safe Surface Australia shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/ or expense (including loss of profit) suffered by the Customer arising out of the breach by Safe Surface Australia of these terms and conditions provided that in no case shall the damages exceed the price of the Goods.
  • 18.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed all claim to be owed to the Customer by Safe Surface Australia nor to withhold payment of any invoice because part of the invoice is in dispute.
  • 18.5 Safe Surface Australia may license or subcontract all or any part of its rights and obligations without Customers’ consent.
  • 18.6 The Customer agrees that Safe Surface Australia may amend these terms and conditions at any time. If Safe Surface Australia makes a change to these terms and conditions, then the change will take effect from the date on which Safe Surface Australia notifies the Customer in writing of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Safe Surface Australia to provide Goods to the Customer.
  • 18.7 Neither party shall be liable for any defects due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
  • 18.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.

19. Client’s Responsibility

  • 19.1 The Client agrees to remove any equipment, furniture, furnishings or personal goods from the vicinity of the works and agrees that Safe Surface Australia shall not be liable for any damage caused to those items through the Clients failure to comply with this clause.
  • 19.2 The Client understands and agrees that visible changes may occur to the flooring surface, furnishings and/or trimmings after installation of the Anti-Slip Treatment and Safe Surface Australia shall not be liable for any damages caused.
  • 19.3 The client agrees the guaranteed 2 year warranty for Anti-Slip Treatment will be void if the Domestic/Commercial Maintenance Cleaner is not used following Safe Surface Australia’s installation.

 

Safe Surface Australia, ABN 36 928 300 174

7 Muir Place Wetherill Park NSW 2164

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