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General

The whole of the Agreement between Jomon Architectural Hardware (ABN 92 084 941 266) and the Applicant referred to in the Credit Application or (“Customer”) are those set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (“Terms”). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By receiving delivery and/or supply of all or a portion of the goods, materials and/or parts and/or labour and/or services supplied by Jomon Architectural Hardware under these Terms (“Goods”), the Customer shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all others. All Goods are charged at the price ruling at the date of invoice and any GST within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 or other government imposts shall be payable by the Customer in addition.

 

Credit Terms

  1. 2.1 Payment is due on or prior to thirty (30) days from the date of invoice rendered in respect of the supply of the Goods unless otherwise stated in writing by Jomon Architectural Hardware. Jomon Architectural Hardware may charge interest at a rate of 2% per month if payment is not received by the due date.
  2. 2.2 The granting of credit does not oblige Jomon Architectural Hardware to extend any particular amount of credit to the customer and may be revoked or withdrawn by Jomon Architectural Hardware at any time.
  3. 2.3 Jomon Architectural Hardware is entitled to set-off against any money owing to the Customer amounts owed to Jomon Architectural Hardware by the Customer on any account whatsoever.
  4. 2.4 Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 2.5, and then to principal.
  5. 2.5 The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Jomon Architectural Hardware for enforcement of obligations and recovery of monies due from the Customer to Jomon Architectural Hardware.

 

Quotations and Pricing

  1. 3.1 Prices charged for Goods will be determined by Jomon Architectural Hardware by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). Jomon Architectural Hardware will use its best endeavours to notify the Customer of price changes but bears no liability in respect of this.
  2. 3.2 Jomon Architectural Hardware will use its best endeavours to provide Customers with feed back on all faxed and telephoned order on the following:
    • Price discrepancies
    • Deleted line and their alternatives if applicable
    • Incorrect pack quantities
    • Out of stock with an ETA
    • MFO (Manufactured to Order) lines with estimated ETA
    • Minimum order value will be highlighted to customer and advised of the service fee.
  3. 3.3 Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature.
  4. 3.4 Unless otherwise specified by Jomon Architectural Hardware, the prices exclude any statutory tax, including any GST, duty or impost levied in respect of the Goods and which has not been allowed for by Jomon Architectural Hardware in calculating the price.

 

Delivery and Supply

  1. 4.1 Any times quoted for delivery and/or supply are estimates only and Jomon Architectural Hardware shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Goods, by reason of any delay in delivery/supply or dispatch. Jomon Architectural Hardware reserves the right to stop supply at any time if the Customer fails to comply with the Terms.
  2. 4.2 Jomon Architectural Hardware may refuse to supply any order by the Customer for Goods in its absolute discretion and may make acceptance of an order conditional upon it receiving a satisfactory credit assessment of the Customer.
  3. 4.3 If the Customer directs that delivery of the Goods be staggered over different times or to different addresses from those specified in the Credit Application, then the Customer:-
    1. 4.3.1 shall be liable for any additional cost, charge and expense incurred by Jomon Architectural Hardware in complying with the Customer’s direction; and
    2. 4.3.2 shall pay for the whole of the invoiced value of the Goods notwithstanding the staggered deliveries; and
    3. 4.3.3 such action shall be deemed to be delivery to the Customer.
  4. 4.4 The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer’s premises or when Jomon Architectural Hardware notifies the Customer that the Goods are available for collection.

 

Property

  1. 5.1 Until full payment has been made for all Goods and any other sums in any way outstanding from the Customer to Jomon Architectural Hardware from time to time:-
    1. 5.1.1 All sums outstanding become immediately due and payable by the Customer to Jomon Architectural Hardware if the Customer makes default in paying any other sums due to Jomon Architectural Hardware, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed,
    2. 5.1.2 Notwithstanding the provisions of any other clause in these Terms.
    3. 5.1.3 The property in the Goods shall not pass to the Customer and the Customer shall hold the Goods as bailee for Jomon Architectural Hardware (returning the same to Jomon Architectural Hardware on request). The Goods shall nevertheless be at the risk of the Customer from the time of delivery/supply and the Customer must insure the Goods from the time of delivery/supply.
    4. 5.1.4 The Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of Jomon Architectural Hardware provided that there shall be no right to bind Jomon Architectural Hardware to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by the Customer for the Goods (or any portion of them) shall be held on trust for Jomon Architectural Hardware pursuant to the fiduciary relationship.
    5. 5.1.5 In the event that the Customer incorporates or transforms the Goods (or any portion of them) into any other goods or products produced by the Customer (or a third party), then the Customer must hold a proportion of any payment (“relevant proportion”) received by the Customer for such goods or products on trust for Jomon Architectural Hardware. The Customer expressly acknowledges that the relevant proportion shall be equal to the dollar value of the Goods incorporated or transformed and the Customer further acknowledges that any part payment (not exceeding the relevant proportion) received by the Customer for such goods or products is received as payment first of the relevant proportion.
    6. 5.1.6 Jomon Architectural Hardware is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods without liability for trespass or any resulting damage.
  2. 5.2 In addition to any lien to which Jomon Architectural Hardware may, by statute or otherwise, be entitled, Jomon Architectural Hardware shall in the event of the Customer’s insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in Jomon Architectural Hardware’ possession (although all or some of such property or goods may have been paid) for the unpaid price of any Goods sold or delivered to the Customer under this or any other contract.

 

Availability of Stock

  1. 6.1 Any order that cannot be fulfilled on its receipt will automatically be back ordered and processed when stock becomes available unless it is the Customer’s stated standard policy not to accept back orders or the Customer specifically marks its order, “Do Not Back Order”. Deliveries at any time are subject to availability of stock and Jomon Architectural Hardware will not be liable for any charges due to product unavailability.

 

Freight

Unless otherwise agreed, Jomon Architectural Hardware will ship by the least expensive route and carrier to all points. If the purchaser chooses a route with a higher charge than the route of Jomon Architectural Hardware choice for shipment, Jomon Architectural Hardware will charge the difference to the Customer.

 

Returns, Cancellations and Claims

  1. 8.1 The Customer shall not return any Goods to Jomon Architectural Hardware without obtaining prior authorisation from Jomon Architectural Hardware. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including product descriptions, quantity, date of return and the Customer’s name and address must also be enclosed. Freight charges must be paid by the Customer. All Goods must be returned in the original packaging where possible and the Customer shall be responsible for all damage incurred during return shipment. A credit note will be issued by Jomon Architectural Hardware only after Goods returned are either collected by Jomon Architectural Hardware authorised representative or agent or returned to it by the Customer as set out above. The Customer shall not deduct the amount of any anticipated credit from any payment due to Jomon Architectural Hardware but must await receipt of a credit note.
  2. 8.2 All goods returned must be of merchantable and reasonable quality such that the goods are complete in their original packaging, not shop-soiled, are not price ticketed and are still listed in the current price list.
  3. 8.3 If Jomon Architectural Hardware accepts the return of any Goods that have been ordered, Jomon Architectural Hardware may charge the Customer fifteen per cent (15%) of the invoice price as a handling fee with freight costs and risk remaining the responsibility of the Customer.
  4. 8.4 Cancellation will not be accepted on goods that are specially ordered for.
  5. 8.5 All complaints, claims, or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with the Customer’s purchase order must be submitted by the Customer to Jomon Architectural Hardware in writing within seven (7) business days of the date of the invoice rendered for the supply of the Goods. Otherwise, the Customer shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Customer’s purchase order.
  6. 8.6 The claim form must quote the invoice number against which the Goods were initially supplied. Jomon Architectural Hardware reserves the right to issue credit on returned Goods at purchase price or current price, whichever is lower.
  7. 8.7 Electroplated Finishes – Although Jomon Architectural Hardware applied the finest protective coatings available in the plated surface of its Goods, brass, bronze and other antique finishes have their limitations and in time the protective lacquer may deteriorate either from exposure to weather, perspiration, extremes of climate, frequency of use or other factors. Tarnishing or excessive wear of these finishes is therefore not a defect but a normal process which is unavoidable. Under the circumstances these finishes cannot be guaranteed and Goods will not be repaired or replace under Jomon Architectural Hardware warranty on account of tarnishing or wear of finishes. Jomon Architectural Hardware will not be responsible for the damage caused to metal finishes by acid or other solvents or chemicals.
  8. 8.8 Certain other specific conditions may apply to the return of mortice, rim, tie bolt and cylindrical locksets. Please refer to Lockset Section of price list.

 

Privacy Act 1988 (“Privacy Act”)

To enable Jomon Architectural Hardware to assess the Customer’s application for credit, the Customer authorises Jomon Architectural Hardware:-

  1. 9.1 To obtain from a credit reporting agency a consumer or commercial credit report containing personal information about the Customer and its guarantors pursuant to Section 18K(1) of the Privacy Act; and
  2. 9.2 To obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities, and on a periodic basis.
  3. 9.3 To give to a credit reporting agency information including identity particulars and application details

AND in accordance with Section 18N(1) of the Privacy Act the Customer authorises Jomon Architectural Hardware to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.

The Customer understands that information can be used for the purposes of assessing its application for credit (Section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.

 

Notification

The Customer must notify Jomon Architectural Hardware in writing within seven (7) days of:-

  1. 10.1 Any alteration of the name or ownership of the Customer.
  2. 10.2 The issue of any legal proceedings against the Customer.
  3. 10.3 The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
  4. 10.4 Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to Jomon Architectural Hardware for all Goods supplied to the new owner by Jomon Architectural Hardware until notice of any such change is received.

 

Warranties

  1. 11.1 No warranties except those implied and that by law cannot be excluded are given by Jomon Architectural Hardware in respect of Goods supplied. Where it is lawful to do so, the liability of Jomon Architectural Hardware for a breach of a condition or warranty is limited to the repair or replacement of the Goods, the supply of equivalent Goods, the payment of the cost of repairing or replacing the Goods or acquiring equivalent Goods, as determined by Jomon Architectural Hardware.
  2. 11.2 The Customer acknowledges and warrants that it has relied on its own skill and judgment or, alternatively, on the skill and judgment of tradesmen and professional advisers retained by it to provide advice and assistance on the suitability of the Goods for specific purposes and procedures and, in this respect, shall indemnify Jomon Architectural Hardware from and against any suit, claim, demand or compensation which, but for these Terms, the Customer may have had against Jomon Architectural Hardware.

 

Force Majeure

Jomon Architectural Hardware shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Goods impossible, not limited to but including:

  1. a) Circumstances outside Jomon Architectural Hardware control
  2. b) Failure of Jomon Architectural Hardware Machinery
  3. c) Failure of a supplier to Jomon Architectural Hardware

 

Equitable Charge

The Customer and Guarantor as beneficial owner and/or registered proprietor now charges in favour of Jomon Architectural Hardware all of the Customer and Guarantor’s estate and interest in any real property (including but not limited to any applicable land owned by the Customer and Guartantor named or described as the Customer and Guarantor’s Street Address in the Credit Application if applicable) (“Land”) to secure payment of accounts rendered by Jomon Architectural Hardware to the Customer for the delivery and/or supply of the Goods including interest payable on these accounts and costs (including legal costs on a full indemnity basis) incurred by Jomon Architectural Hardware and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat. For the avoidance of doubt, both the Customer and Guarantor charge their interest in both their own/individual capacities and capacities as Trustee over any Land or property.

 

Failure to Act

Jomon Architectural Hardware failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or Jomon Architectural Hardware failure to exercise any right or remedy available under these Terms or at law, or Jomon Architectural Hardware failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of Jomon Architectural Hardware right to demand timely payment of future obligations or strict compliance with the Terms.

 

Legal Construction

  1. 15.1 These Terms shall be governed by and interpreted according to the laws of New South Wales and Jomon Architectural Hardware and the Customer consent and submit to the jurisdiction of the Courts of New South Wales.
  2. 15.2 Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.