Terms & Conditions

1. Definitions

In these terms and conditions:

“Atech” means Atech Products Pty Ltd (ACN 112 616 770) of PO Box 3119, Burnley North Victoria 3121;

“Conditions” means the terms of these terms and conditions;

“Credit Application” means any agreement signed by the Customer to receive Goods or Services on credit;

“Customer” means an individual, partnership or corporation seeking to acquire Goods or Services from Atech and where applicable includes the applicant in the Credit Application and, if the Customer consists of more than one person, each of them jointly and severally;

“Guarantor” means an individual that guarantees any payments owed by the Customer to Atech;

“Goods” means all building products and materials and/or related components supplied by Atech to the Customer;

“GST” means GST within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (Cth)as amended;

“Insolvency Event” means any matter referred to in clause 5.6(a) or (b) of these Conditions;

“Invoice” means invoice for Goods supplied or Services provided, or both;

“Order” means any request for the provision of Goods and/or Services by the Customer with Atech which has been accepted by Atech;

“Other Property” means all present and after-acquired property of the Customer (except the Goods) whether acquired alone or jointly as a tenant in common or as a joint tenant;

“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended;

“Premises” means the Customer’s land or building where the Goods are to be delivered;

“Price” means the amount invoiced for Goods supplied or Services provided;

“Real Property” means all real property interest held by the Customer now and in the future;

“Security Agreement” and “Security Interest” have the meaning ascribed to them in the PPSA; and

“Services” means the delivery and/or supply of Goods, including any advice or recommendations.

2. Application of the Condition

2.1. Subject to clause 2 .4 , or unless otherwise agreed in writing, these Conditions will apply exclusively to every Order or contract for the supply of Goods and or the provision of Services by Atech to the Customer and cannot be varied or replaced by any other conditions without the prior written consent of Atech.

2.2. Any written quotation provided by Atech to the Customer concerning the supply of Goods and or Services is valid for 30 days, unless otherwise stated in the quotation, and is an invitation only to the Customer to place an Order based upon that quotation.

2.3. Atech will not be deemed to have accepted an Order or an offer by the Customer unless it has communicated acceptance to the Customer in writing or has delivered the Goods or Services stated in the Order.

2.4. Atech may vary these Conditions provided it first gives 7 days written notice to the Customer. Any order placed, or Goods or Services supplied at the request of the Customer, after such 7 day period, will be deemed to be the Customer’s acceptance of
the varied Conditions.

2.5. Atech may terminate this agreement on 7 days written notice. Any termination is without prejudice to the rights of Atech accrued prior to such termination including the right to be paid or to recover the Goods.

2.6. Atech may terminate this agreement without notice if an Insolvency Event occurs in relation to the Customer.

2.7. The Customer and Atech agree to keep confidential the Price of the Goods and Services,except as required by law.

3. Payment

3.1. GST will be charged on the Goods and/or Services provided by Atech that attract GST at the applicable rate.

3.2. Atech reserves the right to change the Price in Atech’s Order in the event of a variation which was previously unknown or unforeseen by Atech at the time the Order was placed,and notice will be provided in writing by Atech within a reasonable time.

3.3. At Atech’s sole discretion, the Price shall be either:

(a) as detailed on Invoices provided by Atech to the Customer in respect of Goods and/or Services supplied; or

(b) Atech’s quoted Price for the Order (subject to clause 3.2).

3.4. Payment for Goods and/or Services must be made, without deduction or setoff, within 14 or 30 days (as stated on the Credit Application or Invoice) following the date of the Invoice.

3.5. In the event that there are insufficient funds to meet any cheque drawn by the Customer in favour of Atech in payment of the Price, an administration fee of $100.00 will be charged on each and every representation and or dishonour.

3.6. Atech may withdraw any credit terms or require the provision of security at any time in its absolute discretion and without notice to the Customer and may apply any payment by the Customer in any manner as Atech sees fit.

4. Supply and delivery of Goods and/or provision of Services

4.1. Subject to otherwise complying with its obligations under this agreement, Atech shall exercise its independent discretion as to its most appropriate and effective manner of providing the Goods and/or Services and of satisfying the Customer’s expectations of those Goods.

4.2. The Customer is responsible for ensuring the Premises is suitable and accessible for delivery of the Goods by Atech.

4.3. The Customer is responsible for ensuring that the Goods are secured at the Premises and warrants to be responsible for any loss, damage or theft of the Goods delivered by Atech to the Premises.

4.4. Any period or date for delivery of Goods stated by Atech is intended as an estimate only and is not a contractual commitment. Atech may deliver the Customer’s Orders in part or in whole.

4.5. All costs of freight, insurance and other charges associated with the delivery of the Goods to the Premises shall be borne by the Customer.

4.6. If the Customer is unable or fails to accept delivery of the Goods, the Customer will be liable for all costs incurred by Atech due to storage, detention, double cartage, travel expenses or similar causes.

5. Payment Default and Security

5.1. If the Customer defaults in payment by the due date of any amount payable to Atech, then all money which would become payable by the Customer to Atech at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Atech may, without prejudice to any accrued rights or other remedy available to it:

(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 2 per cent for the period from the due date until the date of payment in full;

(b) charge the Customer for all expenses and costs (including legal costs on an indemnity basis) incurred by it resulting from the default and in taking whatever action it deems appropriate to recover any sum due including enforcing the charge in clause 5.2;

(c) cease or suspend for such period as Atech thinks fit, supply of any further Goods,Services or credit to the Customer; and

(d) by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by Atech.

5.2. As security for any amounts due to Atech from time to time, the Customer and any Guarantor charges all of its legal and equitable interest (both present and future) of whatsoever nature held in any and all Real Property to Atech.

5.3. Without limiting the generality of the charge in clause 5.2, the Customer and/or Guarantor agrees on request by Atech, to execute any documents and do all things reasonably required by Atech to perfect the charge given in clause 5.2, including registering a caveat or mortgage security over any Real Property. The Customer and/or Guarantor appoints Atech to be the Customer’s and/or Guarantor’s lawful attorney for the purposes of executing and registering such documents and taking all such steps in that regard. The Customer and Guarantor indemnifies Atech against all costs and expenses (including legal costs on an indemnity basis) incurred by Atech in connection with the preparation and registration of
any such steps needed to perfect the security or prepare to register the caveat or mortgage documents.

5.4. The Customer and Guarantor consents unconditionally to Atech lodging a mortgage or caveat noting its interest in any Real Property.

5.5. A statement in writing by an authorised officer of Atech setting out the moneys due or owing to Atech at the date of the statement shall be sufficient evidence of the amount so due or owing.

5.6. Clause 5.1 may also be relied upon, at the option of Atech:

(a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of any creditors; or

(b) where the Customer is a corporation and it enters into any scheme of arrangement or any assignment or composition with or for the benefit of any creditors or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.

5.7. In the event of a dispute, the Customer will not be entitled to withhold payment of any undisputed amount due to Atech.

6. Retention of title

6.1. The Customer agrees:

(a) title and property in all Goods remain vested in Atech and do not pass to the Customer;

(b) the Customer must hold the Goods as fiduciary bailee and agent for Atech

(d) the Customer is required to hold the proceeds of any sale of the Goods on trust for Atech in a separate account;

(e) the Customer must deliver up all Goods to Atech immediately upon service of a written demand; and

(f) Atech may without notice, enter any premises where it suspects the Goods may be and remove them, notwithstanding that they may have been attached to other Goods not the property of Atech, and for this purpose the Customer irrevocably licences Atech to enter such premises and also indemnifies Atech from and against all costs, claims, demands or actions by any party arising from such action,

until full payment in cleared funds is received by Atech for all Goods supplied by it to the Customer, as well as all other amounts owing to Atech by the Customer.

6.2. The Customer may resell the Goods in the ordinary course of its business (but may not otherwise sell or encumber the Goods) and if it does so shall receive the proceeds of resale as trustee of Atech, to be held on trust for Atech. Atech shall be entitled to trace the proceeds of resale.

6.3. The reservation of title and ownership is effective whether or not the Goods have been altered from their supplied form or commingled with other goods

6.4. To assure performance of its obligations under these Conditions, the Customer hereby grants Atech an irrevocable power of attorney to do anything Atech considers should be done by the Customer pursuant to these Conditions. Atech may recover from the Customer the cost of doing anything under this clause 6, including registration fees and legal costs (on an indemnity basis).

7. Security Interest

7.1. The Customer agrees:

(a) that these Conditions constitute a Security Agreement for the purposes of the PPSA;

(b) that these Conditions create a Security Interest in all Goods (and the proceeds of the Goods) in favour of Atech to secure the Price for the Goods;

(c) that the following sections of the PPSA do not apply: 95, 118, 121(4), 125, 129(2),129(3), 130, 132(3)(d), 132(4), 135, and, to the extent section 115(7) applies, each section of Part 4.3 of the PPSA is excluded unless Atech elects in writing to retain Part 4.3 (which Atech may elect to do either in whole or in part); and

(d) to waive its right to receive notice of a verification statement in relation to registration of a Security Interest.

7.2. The Customer: (a) further agrees that these Conditions also create a Security Interest in all of the Customer’s Other Property, although such Security Interest is not intended to prevent the Customer from transferring such Other Property in the ordinary course of the Customer’s business; and

(b) separately charges all Real Property owned now and in the future by the Customer whether owned alone or jointly as a tenant in common or as a joint tenant,in favour of Atech to secure payment and performance of all the Customer’s obligations under these Conditions.

7.3. The Customer must immediately, if requested by Atech, sign any documents, provide all necessary information and do anything else required by Atech to ensure that Atech’s Security Interest is a perfected security interest.

7.4. The Customer will not enter into any other Security Agreement that permits any other person to have or to register any Security Interest in respect of the Goods or any proceeds from the sale of the Goods until Atech has perfected its Security Interest

8. Risk and Insurance

8.1. The Customer will ensure when placing Orders that there is sufficient information to enable Atech to fulfill the Order.

8.2. Atech takes no responsibility if the specifications provided by the Customer are wrong or inaccurate and the Customer will be liable in that event for the expenses incurred by Atech for any work required to rectify the Order.

8.3. The Customer is responsible for ensuring that Atech is made aware of any special requirements pertaining to the Order and Atech relies upon the accuracy of the information supplied to it.

8.4. Atech takes no responsibility and will not be liable for any damages or costs resulting in the Goods being faulty as a consequence of insufficient information provided by the Customer.

8.5. Atech takes no responsibility for representations made in relation to the Goods or any delay in the delivery of the Goods made by a third party or third party manufacturer which was organised by the Customer.

8.6. The Customer acknowledges that Atech shall not be liable for and the Customer releases Atech from any loss incurred as a result of delay, or failure to provide the Goods or to observe any of these Conditions due to an event of force majeure, being any cause or circumstance beyond Atech’s reasonable control.

8.7. Atech does not represent that it will provide and/or deliver any Goods unless it is included in the quote provided to the Customer.

8.8. Subject to clauses 8.1 and 8.2, all risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the Goods will pass to the Customer immediately upon:

(a) collection of the Goods by the Customer; or

(b) delivery of the Goods to the Customer or to the carrier nominated by Atech or Customer

9. Liability

9.1. Except as specifically set out herein, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.

9.2. Atech is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused arising from the supply of the Goods or Services, including but not limited to loss of turnover, profits, business or goodwill.

9.3. Atech will not be liable for any loss, damage or claim suffered by the Customer where Atech has failed to meet any delivery date or cancels or suspends the supply of Goods or Services.

9.4. Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of Goods and/or Services which cannot be excluded, restricted or modified. If any of these Conditions is inconsistent with State or Federal legislation, such Conditions must be read down only to the extent necessary to comply with such legislation and will otherwise apply to the fullest extent legally possible.

9.5. Atech’s total aggregate liability for any loss, damage or claim suffered by the Customer,however arising, shall not exceed the GST exclusive aggregate Price paid by the Customer to Atech for the specific Goods or Services that gave rise to the loss, damage or claim in question.

9.6. The Customer must take reasonable steps to mitigate any loss, damage or claim it suffers or incurs.

10. Warranties

10.1. Warranty for Services

(a) Atech warrants that its Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service, you are entitled:

(i) to cancel your Service contract with us; and

(ii) to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to be compensated for any other reasonably foreseeable loss and damage.

(b) If the failure does not amount to a major failure, you are entitled to have problems with the Service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract

(c) In respect of all claims Atech shall not be liable to compensate the Customer for any delay remedying the defective Services or in properly assessing the Customer’s claim. Atech will use its best endeavors to assist the Customer with its claim.

10.2. Warranty for Goods

(a) The warranty for Goods supplied shall be the current warranty provided by the manufacturer of the Goods. Atech shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods. Atech will use its best endeavours to assist the Customer with any claim with respect of the Goods.

(b) The Customer continues to be responsible for all amounts owing to Atech in the event that any Goods are supplied on the basis that a manufacturer’s warranty is in place and it subsequently becomes known to the parties that the warranty is void or inapplicable.

(c) Atech warrants that its Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.

10.3. Claims made under Warranty

Subject to clause 9.4, claims for warranty should be made in one of the following ways:

(a) The Customer must send the claim in writing together with proof of purchase to Atech’s business address stated in clause 1 of these Conditions.

(b) The Customer must email the claim together with the proof of purchase to Atech at info@atechproducts.com.au.

(d) Goods where a claim is made are to be returned to Atech or are to be left in the state and condition in which they were delivered until such time as Atech or its agent has inspected the Goods. Such inspection is to be carried out within a reasonable time after notification.

11. Cancellation

11.1. No purported cancellation or suspension of an Order by the Customer will be binding on Atech after that Order has been accepted by Atech.

11.2. In the event that the Customer cancels delivery of Goods, the Customer shall be liable for any loss incurred by Atech (including, but not limited to, any loss of profits and transport charges) up to the time of cancellation.

11.3. If the Customer places an Order with Atech and Atech places an Order with a third party supplier to meet the Customer’s request, the Customer shall be liable for the Price of the Goods ordered if the Customer cancels the Order and the Goods have already been dispatched.

12. Goods Returned and Refunds

12.1. Subject to clause 10, all Goods are sold on a non-returnable, non-refundable basis and may only be returned if the Goods are damaged by Atech upon delivery or are incorrectly supplied by Atech.

12.2. Atech does not offer any refund if you change your mind or find the Goods cheaper elsewhere.

12.3. Any claim by the Customer that the Goods are damaged or incorrectly supplied must be made in writing to Atech within 5 business days of receipt of the Goods by the Customer.

12.4. Any damaged Goods must be returned in the condition in which they were received,together with any packaging the Customer received with the damaged Goods.

12.5. Notwithstanding the other provisions of these Conditions, Atech may refuse to provide a repair, replacement or refund for Goods or Services purchased by a Customer if:

(a) the Customer misused the Goods in a way which caused the problem;

(b) the Customer knew or were made aware of the problem(s) with the Goods or Services before the Customer purchased them

(c) the Customer asked for a Service to be supplied in a certain manner, or asked for alteration to the Goods, against Atech’s advice; and

(d) any other exceptions that apply under the Australian Consumer Law.

12.6. In the event that Goods purchased by a Customer fail to meet one or more Consumer Guarantees under the Australian Consumer Law, Atech shall bear any cost of shipping the said Goods (the “Returned Product”) back to us, as well as any cost of shipping any replacement Goods to the Customer.

12.7. If the Returned Product can easily be shipped or returned, then the Customer is responsible for organising for the Returned Product to be returned to Atech. If the Returned Product is eligible for a repair, replacement or refund under the terms of these Conditions (including under the Australian Consumer Law) then Atech will reimburse the Customer for the reasonable postage, shipping or transportation costs for the Returned Product.

12.8. If the Returned Product is too large, too heavy, or otherwise too difficult to be removed and returned by the Customer, and is believed to be eligible for a repair, replacement or refund under the terms of this Policy (including under the Australian Consumer Law), then Atech will organise for the postage, shipping, transportation or collection of the Returned Product, at our cost.

12.9. In the event that Atech organises and pays for the inspection, postage, shipping,transportation or collection of a Returned Product, and it turns out not to be eligible for a repair, replacement or refund under the terms of these Conditions (including under the Australian Consumer Law), then the Customer will be required to pay the costs of any inspection, postage, shipping, transportation or collection of the Returned Product.

12.10. Atech may, in its sole and absolute discretion, agree to accept a return of some or all of the Goods but all such Goods returned will be subject to a minimum 25% handling fee.

13. Set-off

13.1. The Customer shall have no right of set-off in any suit, claim or proceeding brought by Atech against the Customer for default in payment.

13.2. The Customer acknowledges that Atech can produce this clause in bar of any proceeding for set-off.

14. Acces

14.1. The Customer shall, where relevant, ensure Atech has full and safe access to the Premises to enable delivery of the Goods.

14.2. The Customer will be charged an additional fee if Atech is unable to access the Premises to deliver the Goods.

14.3. Atech will not be held responsible for any delay due to inclement weather, failure of the Customer to provide required items or changes requested to be made by the Customer and/or in any circumstances beyond Atech’s reasonable control.

15. Entire Agreement

This agreement is the entire agreement between the parties and supersedes all and any communications, negotiations, arrangements and agreements, whether oral or written,between the parties in respect of the matters that are the subject of this agreement.

16. Governing Law

These Conditions are governed by and are to be interpreted according to the laws in force in Victoria and the parties submit to the non-exclusive jurisdiction of the courts operating in Victoria.

Who must sign this agreement on behalf of the Customer:

For companies: Where there is only one director for the company then that person must sign. Where there are two or more directors for the company then 2 directors or a director and a company secretary must sign.
Sole traders: The individual
Partnerships: All partners of the partnership.

Signatory

Name:
Address
Signature

Witness* (if executed by sole trader or partnership)

Name:
Address
Signature

Signatory

Name:
Address
Signature

Witness* (if executed by sole trader or partnership)

Name:
Address
Signature