TERMS

All products and services sold by PJ Bowers Pty Ltd (the Company) to the Customer are sold subject to the following terms and conditions. No variation, modification or substitution for these terms and conditions shall be binding on the Company unless specifically accepted by the Company in writing.
The Company is committed to protecting the privacy and confidentiality of those using our products and services. The Privacy Policy of the Company can be viewed at any time by clicking here.

ORDERS

Placement
The Customer must place orders for products and services based upon the prices provided by the Company for the products and services listed on its quotation. An order may be placed via email and in accordance with the electronic procedures specified in any valid quotation, scope of works, scope of service or contract.

Contract
A contract comes into existence once written acceptance of a written or verbal order (the Order) from the Customer has been made by an authorised employee of the Company. The place of the contract is the place where the Order is accepted by the Company. Any Order not accepted by the Company will be regarded as having been refused by the Company. The Customer may not alter or modify the Order once the Order is accepted by the Company without the written consent of an authorised employee of the Company. The placement of an Order by the Customer and the Company constitutes acceptance of these Terms of Trade.

Terms
The Customer must makepayment for the products and services required before any agreed design, manufacture or supply of, or dispatch or release of products and services in accordance with the payment terms listed on its quotation.

Quotations
All quoted prices by the Company are subject to change or withdrawal at any time prior to acceptance of an Order by the Company. The Company reserves the right to amend the price of the undelivered portion of the products or services at any time prior to its acceptance of an Order by changing the price for a product or service. All quotations given by the Company in writing to a Customer are valid for a maximum period of fourteen (14) days from the date of the quotation unless express notice is otherwise given by the Company.

Invoicing and Payment
The Company may issue an invoice to the Customer. The Customer must pay the purchase price on the invoice for the products and services without any delay, counter-claim, abatement, deduction or set-off prior to delivery of the products and services by the Company to the Customer. The Company shall be entitled to retain the products or services until full payment for the products or services has been received.

Prices
The price payable for the products and services ordered will be the price specified in the Company quotation at the time the Order is placed. All prices for the products and services shall be in Australian Dollars (A$). The Company reserves the right to vary its prices in its quotation without notice. Special prices on bulk items are available on request and will be at the sole discretion of the Company. Prices are exclusive of Goods and Services Tax (GST). Customers are liable to pay GST on all items and will be charged at the applicable rate. The Company reserves the right to refuse large quantity Orders.

Cancellation
An accepted Order cannot be cancelled without the prior written consent of the Company. Where an Order is cancelled, the Customer indemnifies the Company against any losses incurred by the Company as a result of the cancellation, including, but not limited to, loss of profit from other Orders foregone as a result of the scheduling of the Order which has been cancelled.

Additional Charges
The Company may require the Customer to pay additional charges for costs incurred by the Company as a result of reliance on inadequate or incorrect information provided by the Customer. The imposition of additional charges may also occur as a result of cancellation by the Customer of an Order where cancellation results in loss by the Company.

DELIVERY

The Company will use its best endeavours to deliver the products and services in Australia within the defined timeframe once acceptance of an Order and full payment for the products and services.

At the sole discretion of the Company, delivery of the products and services will take place when:

The Customer or the Customers nominated carrier (as agent for the Customer) takes possession of the product at the Company address; or

The Company or the Company nominated carrier delivers the products to the Customers address.

The Customer receives electronic files of the product or service in their typical Customer inbox or file sharing platform.

The Customer is responsible for the cost of delivery which is in addition to payment for the products or services.

The Customer must make all arrangements necessary to take delivery of the products or services otherwise the Company will be entitled to charge a reasonable fee in the event that redelivery or storage is required.

Delivery to a third party nominated by the Customer is deemed to be delivery to the Customer.

Any date for delivery given by the Company is an estimate only and the Company will not be held liable financially or otherwise for failure to deliver on or before the quoted date unless a written guarantee of delivery has been issued by the Company.

The Company may in its absolute discretion refuse to provide or delivery Products where:

Payment for products or services ordered by the Customer have not been paid on the due date for payment.

Products or services are unavailable due to force majeure.

Credit limits cannot be agreed upon or have been exceeded; or

Payment for products previously supplied to the Customer has not been received by The Company in accordance with its payment terms.

INSPECTION

The Customer shall inspect the products and services upon receipt at its site location and shall within three (3) working days after receipt notify the Company of any discrepancies or other abnormalities it wishes to make a claim for in the absence of which the Customer shall be deemed to have accepted the products and services.

RETURNS AND CLAIMS

The Customer is entitled to return a faulty product. The Customer can choose a refund or exchange if a product has a major fault. If the fault is minor, the Company may elect to give the Customer a free repair instead of a replacement or refund.

In the event of incorrectly supplied products or services, the Company will replace the product or service supplied with the product or service ordered. Where the correct product or service is unable to be supplied the Company will reimburse the Customer for the cost of the incorrectly supplied product or service.

The Customer is responsible for returning any product to The Company. Product will only be accepted for credit if returned within thirty (30) days of date of delivery and must be accompanied by a request for credit quoting the original invoice and/or delivery docket number, the purchase order number, date and reason for return.

Prior notification of the return of product is required, at which point a return and claims number will be allocated which must be quoted at the time of the return. The acceptance of such product does not imply an agreement to issue a credit. Product is subject to inspection and approval and will attract a 10% or $200.00 (whichever is greater) handling and restocking charge. Freight will be at the expense of the Customer unless the product were supplied incorrectly.

No credit will be allowed for:
Product outside of the Company standard product range which have been specially sourced at the Customer’s request.
Product which has been specially manufactured or provided to the specifications of the Customer.
Product which has been used, modified, or damaged by anyone other than the Company or the Company agent.
Product with an alleged deficiency or discrepancy where the Customer has failed to open and check all items supplied within fourteen (14) days of delivery and report such a claim to the Company within fourteen (14).

RISK AND INSURANCE

Risk for products and services shall pass to the Customer on delivery of the products or service to the Customer or into the custody of anyone apparently acting on behalf of the Customer, whichever is sooner.
The Company is responsible for insurance of all products and services up to the time of delivery. The Customer is responsible for insurance of all products and services from the time of delivery.

TITLE

Ownership and title for products and services shall not pass to the Customer until the Customer has paid for the products and services in full in accordance with these Terms of Trade.

Notwithstanding that risk in the products and services shall pass to the Customer as provided in Clause 6, title to the products and services shall remain with the Company until all monies owing by the Customer to the Company have been paid in full.

Where products or services are supplied by the Company to the Customer without payment in full of all moneys payable in respect of the products and services provided by the Company, the Customer:
Is a Bailee of the products or services until property in them passes to the Customer.

Irrevocably appoints the Company its attorney to do all acts and things necessary to ensure the retention of title of products and services including the registration of any security interest in favour of the Company with respect to the products and services under applicable law.

Must be able upon demand by the Company to separate and identify as belonging to the Company the products and services supplied by the Company from other products or services which are held by the Customer.
Must not allow any person to have or acquire any security interest in the product or service.

Agrees that the Company may repossess the products or services if payment is not made within fourteen (14) days, or such longer time as the Company may, in its complete discretion, approve in writing, of the supply of the products or services; and
Grants an irrevocable licence to the Company or its agent to enter the Customers premises or premises under its control in Order to recover possession of products or services pursuant to this paragraph.
Notwithstanding Clause 7(3) the Customer may transfer, sell or dispose of Products to a third party in the ordinary course of business.

PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)

This Agreement is a security agreement.
The interest of the Company in the products and services and all proceeds from the sale of the products or services by the Company to a third party is a security interest.

The Customer consents to the Company registering its security interest on the Personal Property Securities Register (PPSA) and agrees to provide all assistance reasonably required by the Company to facilitate registration.

Until such time as title in the products or services has passed to the Customer as contemplated by Clause 7 above, the Customer agrees not to in any way assign, charge, lease or otherwise deal with the products or services in such a manner as to create a security interest over the products or services in favour of the Customer or any third party. The parties agree that this clause will not prohibit the Customer from selling the products or services in the ordinary course of business.

The Customer waives its rights to receive any notice under the PPSA, including notice of verification statement, unless the notice is required by that Act and cannot be excluded.

The Company and the Customer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of the Company security interest in the products or services or of this Agreement:
Any requirement for the Company to give the Customer a notice of removal or accession.

Any requirement for the Company to give the Customer a notice of the Company proposed disposal of the products or services.

Any requirement for the Company to include in a statement of account, after disposal of the products or services, the details of any amounts paid to other secured parties.

Any requirement for the Company to give the Customer a statement of account if the Company does not dispose of the products or services.
Any right the Customer has to redeem the products or services before the Company exercises a right of disposal.

Any right the Customer has to reinstate this Agreement before the Company exercise a right of disposal of the products or services.
Expressions defined in the PPSA have the same meaning when used in this Agreement.

INTELLECTUAL PROPERTY RIGHTS

The Customer agrees that all rights, title and interest in copyright, trademarks, database rights, patent rights, design rights and domain names relating to the Company or its products or services are the property of, or vest on creation in, the Company or their respective owners.

The Customer must not use or infringe any intellectual property rights including any confidential information or trade secrets without the written consent of the Company or the respective owner of the intellectual property.
All intellectual property rights in respect of the products or services remain the Company property and the Customer may not use, reverse engineer, interfere with or alter them in any way.

INDEMNITY

The Customer will indemnify the Company against and agrees to reimburse if for any expenses it may incur in recovering or attempting to recover payment from the Customer for any amount which may from time to time be overdue. These costs include legal court, solicitors, debt collections agency commissions and fees.

WARRANTY AND LIABILITY

If the purchaser is defined as a consumer under the Australian Consumer Law, the Company provides the consumer guarantees to the purchaser as set out in the Australian Consumer Law. Consumer Guarantees under the Australian Consumer Law cannot be excluded but all other warranties, express or implied, are hereby excluded.

For a product supplied by the Company, a consumer is entitled to a replacement or refund for a major failure and to compensation for any other reasonably foreseeable loss or damage. A consumer is also entitled to have the product repaired or replaced if it is not of acceptable quality and the failure is not a major failure.

To the extent permitted by law, the Company is not liable for:
Damage to a product it has supplied arising from external causes outside its control.

NORMAL WEAR AND TEAR

Deterioration or faults caused by or contributed to by the consumer, a third party or otherwise if a product has been used in a manner not in accordance with its function or design or otherwise misused, not installed in a proper manner, not maintained in accordance with the requirement of the product or due to, mechanical damage, incorrect maintenance, accidents or other adverse events not caused by the negligence or omission of the Company and its employees or agents.

Subject to the rights of consumers under a law which cannot be limited, the liability of the Company will be limited, at its option, to:
The replacement of a defective product or the supply of an equivalent product.

The repair of a defective product; or
Payment for the replacement or repair of a defective product.
Subject to the rights of consumers under a law which cannot be limited:
The total liability of the Company to a purchaser for a product will not exceed the invoice price of the product to the purchaser.

The Company will not be responsible for the consequence of any representation made or advice given by its employees, agents or subcontractors in connection with the design, installation or use of a product and the purchaser agrees that all such advice is accepted by the purchaser entirely at its risk.

The Company is not liable to the purchaser or anyone else in connection with a product or the supply of a product including without limitation for:
Any losses, costs, damages, expenses, claims, demands, actions, proceedings, including without limitation for damage to the product or injury to any person, arising from:

Delivery, loading or unloading of a product.
A failure to deliver or delay in delivering a product.
A failure to install a product in accordance with recommended fixing procedures by any person.

The removal of a defective product or the supply of a replacement product.
Any direct, indirect or consequential loss or damage, any loss of actual or anticipated profit or goodwill or other economic loss.

Any claim, action or proceeding by a third party against the purchaser or any loss suffered by the purchaser as a result.

The terms of the preceding clause apply unless the purchaser is a consumer and such loss or damage arises from the negligence or wilful misconduct of the Company or any of its officers, employees or agents.

Purchasers are responsible for:
Deciding if a product is suitable for a particular purpose;
Supply of correct product description or specifications to the Company;
Compliance with all building, engineering and safety standards relating to the use of a product.

Subject always to the provisions of the Australian Consumer Law to the extent to which it applies.

AGENCY AND ASSIGNMENT

The Customer agrees that the Supplier may at any time appoint or engage an agent to perform an obligation of the Supplier arising out of or pursuant to these Terms of Trade.

The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these Terms of Trade provided that the assignee agrees to assume all duties and obligations of the Supplier owed to the Customer under these Terms of Trade.

DISPUTE RESOLUTION

If a dispute arises between the Customer and the Company, the following procedure applies:

A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this paragraph.

A party must not commence legal proceedings, except proceedings seeking interlocutory relief, in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.

A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.

If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within five (5) business days, or other period as agreed in writing by both parties.

Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. 

The mediation must be conducted in accordance with the ACDC Guidelines (the Guidelines) for Commercial Mediation which are operating at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these Terms of Trade. This paragraph survives termination of these Terms of Trade.

Notwithstanding the existence of a dispute, including the referral of the dispute to mediation, each party must continue to perform its obligations under these Terms of Trade.

The parties must hold confidential, unless otherwise required by law or at the direction of a Court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.

GENERAL

These Terms of Trade are governed by the laws of the State of Queensland and each party irrevocably submits to the nonexclusive jurisdiction of the Courts of such State.

These Terms of Trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
In entering into these Terms of Trade, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these Terms of Trade.

If any provision of these Terms of Trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.

A parties’ failure or delay exercising a power or right does not operate as a waiver of that power or right.

A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown in the Order or on a quote, or as varied pursuant to this paragraph, and delivered personally, sent by prepaid mail to the address of the addressee or sent by electronic mail to the email address of the addressee with acknowledgment of delivery.

A notice or other communication is taken to have been given, unless otherwise proved, if mailed, on the second Business Day after posting; or if sent email before 4.00 pm one business day at the place of receipt, on the day it is sent and otherwise on the next business day at the place of receipt.

A party may only change its postal or email address for service by giving notice of that change in writing to the other party.

V3 Updated March 2023.