Terms & Conditions

1. Definitions and Interpretation
   • “Application” means the Trade Account Application for the provision of Goods (including, if applicable, provision of any Services) between You and Us and these standard terms and conditions and any other agreement (whether oral or in writing) between Us and You.
   • “Business Day/s” means a day on which banks are open for general banking business in the state of New South Wales, Australia. If the day on which anything to be done is not a Business Day, then:

(a) if it involves a payment other than a payment which is due on demand, it shall be done on the preceding Business Day; and

(b) in all other cases, it shall be done no later than the next Business Day.

• “Business Hours” means between 8.00am and 4.30pm Monday to Friday (inclusive) excluding Public Holidays in NSW and/or in the state where delivery of any Goods is to be made.
• “Commencement Date” means the Commencement Date of your Trade Account with Us.
• “Consumer” means a person who acquires Goods from Us where:

(a) the amount paid or payable for the Goods did not exceed $100,000; or

(b) the Goods were of a kind ordinarily acquired for personal, domestic or household use or consumption, unless the Goods were acquired for the purpose of re-supply or the purpose of using them up or transforming them in trade or commerce.

• “Force Majeure” shall mean an act of God, war, fire, strike, lockout, trade or industrial disputes, government interference, lack of production capacity or raw materials, transport delays, accidents, breakdown of plant or machinery, non-delivery or shortage of supplies or any other cause beyond Our control.
• “Goods” means the Goods provided to You by Us in accordance with any Order You place with Us for the supply of Goods.
• “GST” means the tax payable on Taxable Supplies within the meaning of the GST Act; GST Act means the A New Tax System (Goods and Services Tax) Act 1999 and any related legislation imposing such tax or legislation that is enacted to validate, recapture or recoup such tax.
• “Insolvent” means unable to pay debts when they fall due, in receivership and/or management, in liquidation, in provisional liquidation, under administration, wound up, receivers and/or controllers appointed, subject to any arrangement, assignment or composition with creditors or protected from any creditors under any legislation.
• “PPSA” means Personal Property Securities Act 2009 (Cth).
• “Services” means the services, if any, which are to be provided by Us.
• “We/Us/Our/Owner” means BluSky Products Pty Ltd of 9 Venture Close Morisset NSW 2264 ABN 71 616 950 371.
• “You/Your” means the person/company/business entering into the Trade Account Application with Us, Your agent or assigns.

2. Quotation, Price and Orders

2.1    If requested, We will provide you with a written quotation for the supply of Goods.

2.2    The price of the Goods specified by Us in any quotation will be valid for a period of thirty (30) days from the date of the quotation.

2.3    We may withdraw, revoke, or vary a written quotation at any time prior to You submitting an order to Us.

2.4    We reserve the right to accept or decline either in whole or in part any order for Goods placed by You.

2.5    If in the time period between acceptance of our quote by You and the placement of an order by Us to our manufacturer and the subsequent delivery of the Goods, We incur an increase in the cost of producing and/or delivery of the Goods, We reserve the right to increase the price of those Goods at any time prior to delivery. You shall accept any such price increase.

2.6    Unless otherwise stated and agreed, prices do not include the cost of delivery of the Goods including but not limited to the costs incurred arising out of late notification by You of a change to an agreed delivery schedule, storage charges where Goods are not collected immediately upon being made available and demurrage costs incurred by Us. Any additional delivery charges for loading lengths etc. will be paid by You.

2.7    These Terms and Conditions prevail over any terms and conditions of trade You provide whether or not any inconsistency arises.

2.8    We acknowledge that the supply of Goods under these Terms and Conditions to any individual whose acquisition of the Goods is wholly or predominantly for personal, domestic or household use or consumption will be a consumer contract for the purposes of the Australian Consumer Law.

3. 3. Payment

3.1    Unless We provide credit to You and subject to our right to withdraw credit, payment for goods purchased from Us must be made by You in immediately available funds on or prior to delivery of the Goods.

3.2    Where you have an approved credit account with Us, You shall ensure that payment for the Goods is made in accordance with the term agreed with Us.

3.3    All payments are required to be made by you no later than thirty (30) calendar days from the date of the Invoice or such other date as agreed between Us and You in writing.

3.4    We reserve our right to charge interest on overdue unpaid (whether in full or in part) accounts at the rate of 10% per annum calculated daily. All payments made by you will first be applied to the accrued interest.

3.5    All payments made by credit card may be subject to a surcharge.

3.6    You must not withhold, or make deduction from any payment due to Us due to any belief that You have received defective Goods, or there has been any alleged negligence on Our behalf, and/or an alleged set off or counter claim by You; and/or  any tax; and/or any other reason.

 

4. Default

4.1    Where You are in default in the performance of any of Your obligations under these terms and conditions and the Goods have not been supplied under a consumer contract, We may refuse, without prejudice to any other rights We may have, to supply or deliver further Goods to You until such time as You have remedied that default and or may chose to terminate the contract.

4.2   If the Goods have been supplied by Us under a consumer contract and You are in default in the performance of any of Your material obligations under these Conditions, We may refuse to deliver further Goods until such time as the You have remedied that default and where:

(a) You have not notified Us of any damage, inaccuracies or defects in accordance with these Terms and Conditions; and

(b) You do not remedy that default within fourteen (14) days of You receiving written notification, or such other time as may be agreed by the parties, We may terminate the contract in relation to Goods that have not been delivered.

4.3    If You (including a Purchaser under a Consumer Contract) commences to be wound up or is placed under official management or into liquidation or has a receiver and/or manager appointed in respect of any of its assets or becomes Insolvent, commits any act of bankruptcy or becomes subject to any other analogous event, We may exercise any or all of the following rights in addition to any other rights it may have under these Conditions or at law:

(a) Suspend deliveries of further Goods to You whether under this contract or otherwise;

(b) Terminate the contract in relation to Goods that have not been delivered;

(c) Withdraw any credit facilities which may have been extended to You and require immediate payment of all moneys owed to Us by You;

(d) Issue an invoice for, and demand immediate payment of, Goods ordered by You but not delivered.

4.4    All costs incurred by You relating to any action taken by Us recover monies due by You (including, without limitation, legal or other debt collection costs) shall be payable by You on demand.

4.5    You acknowledge it is a policy of BluSky Products Pty Ltd in the event of a default to list any defaulting accounts with Equifax Pty Ltd and this listing will remain on Your credit file for a period of five (5) years.

5. Delivery of Goods

5.1    If You attend Our premises to collect the Goods, We may, in our absolute discretion:

(a) deliver the Goods into or onto Your vehicle in which case risk in the Goods passes to You and delivery is effected when the Goods are set down in or on Your vehicle; or

(b) deliver the Goods by setting them down alongside Your vehicle in which case risk in the Goods passes to You and delivery is effected when the Goods are set down alongside Your vehicle notwithstanding that Our staff may, on request, assist You to load the Goods into or onto Your vehicle.

5.2    Goods ordered for collection will be held for a maximum period of ten (10) Business Days after the specific collection date as agreed in writing between the parties. If the Goods which You have already either paid for or are ordered in accordance with any trade account you have with Us are not collected by that time, they may be delivered (at Our option) to Your address as noted on your trade account application and all costs incurred by Us in relation to the holding and delivery of the Goods shall be charged to and be paid for by You.

5.3    Unless otherwise agreed, We shall deliver Goods to You as follows:

(a) We reserve the right to arrange transport by any means in Our absolute discretion;

(b) Delivery will be made during Business Hours to the location agreed by the parties (“Delivery Point”);

(c) We or our transport contractor will deliver the Goods as close (“Drop Spot”) to the Delivery Point as, in the opinion of Us or  Our transport contractor, it is safe or prudent to do so and delivery occurs and risk in the Goods passes to You when We or Our transport contractor’s delivery vehicle arrives at the Drop Spot;

(d) We reserve the right to charge you any costs which We incur as a result of any delay by you in unloading the Goods or where unloading of the Goods cannot be effected, including, if applicable, a return delivery fee at the prevailing freight rates;

(e) the unloading of Goods at a Drop Spot is Your responsibility at Your own cost and risk but We or Our transport contractor may, without liability to You, unload the Goods at the Drop Spot if You request Us or Our Transport contractor to do so or You are absent from the Drop Spot at the time We or Our transport contractor wishes to unload and, subject to the rights of Consumers set out in these terms and conditions, You release and forever discharge Us and Our transport contractor from and against any claim, cause of action or liability arising out of the unloading of Goods at the Drop Spot.

(f) Dates and times quoted for delivery are estimates only. Maximum lengths and load weights for Goods vary by State and Territory and delivery of such will be determined by Us on a case-by-case basis.

5.4    The Goods are at Your risk from the time at which they are delivered to You or Your nominee.

5.5    Handling Safety – Our product may be heavy. It is recommended that appropriate manual handling techniques or a lifting plan be used when handling Goods.

5.6    We shall not be obliged to complete any order in one delivery and expressly reserves the right to deliver by instalments. Where We deliver by instalments each instalment shall be deemed to be sold to You under a separate contract. Failure to deliver any one instalment by the time quoted for delivery of that instalment (if any) shall not entitle You to repudiate the order.

5.7    Where We or Our transport contractor enter Your premises or the premises of a third party nominated by You as a Delivery Point, You:

(a) release Us from any claim You may at any time have or have had against Us but for this release in respect of damage occasioned to Your premises or injury to persons arising out of the delivery by Us or Our transport contractor of Goods to such premises; and

(b) indemnifies and holds Us harmless from and against any loss, damage or liability suffered or incurred by Us in respect of damage occasioned to the third party’s premises or injury to persons arising out of the delivery by Us or Our transport contractor of Goods to the premises of the third party except for and to the extent that such loss, damage or liability suffered or incurred by Us arises out of the negligence or wilful misconduct of Us or Our transport contractor.

5.8    If You do not attend or participate in an inspection of the Goods either at delivery or collection of the Goods then You are deemed to accept the Goods as is and where is.

5.9    Save for any representations in these terms and conditions, whether express or implied, We have not made and make no representations as to the suitability of the Goods for the purpose intended by You and You have ordered the Goods in reliance upon Your own judgment and investigations.

5.10 No defect or claim in respect of Goods delivered shall entitle You to reject delivery of other Goods, which are not subject to any defect or claim, delivered as part of the order.

5.11  If We are prevented either directly or indirectly from performing any of Our obligations under these terms and conditions, including without limitation, making a delivery of the Goods or any part of the Goods by reason of Force Majeure We shall be entitled, at Our option, by notice to You, either to:

(a) extend the time for delivery of the Goods for a reasonable period; or

(b) subject to refunding You for any payment already made to Us in respect of those particular Goods (if any), terminate this contract, and You shall not have any claim against Us for damages or any other remedy for breach of contract.

6. Retention of Title

6.1    You agree that legal and equitable title to the Goods is retained by Us until We receive payment in full from You for the Goods and all other monies owing by You to Us at any time. Prior to title in the Goods passing to You, You:

(a) must hold the Goods as bailee and fiduciary agent of Us;

(b) You may only install or affix the Goods to other goods (so that they become an Accession to those other goods) or use or permit the Goods to be manufactured,

processed, assembled, commingled or otherwise dealt with (so that they become Processed Goods) in the ordinary course of its normal business. You must hold such part of the new goods (“Processed Goods”) on trust for Us as bailee and fiduciary agent of Us;

(c) must store the Goods and such part of the Processed Goods separate from Your own goods and those of any other third party so that they are readily identifiable as the property of Us;

(d) must keep the Goods in good and merchantable condition and fully insure the Goods against loss or damage however caused;

(e) must not sell the Goods except with the prior written consent of Us or in the ordinary course of Your business, provided that any such sale is at arms’ length and on market terms;

(f) any proceeds of re-sale, insofar as they relate to the Goods shall be held on trust for Us in a separate account; and

(g) must not create any encumbrance over the Goods which is inconsistent with Our title and ownership of the Goods.

6.2    For purpose of this clause 6, “such part” means an amount equal in dollar terms to the amount owing by You to Us at the time the Goods are used in the manufacture of, or incorporated into, the Processed Goods.

6.3    If You are in breach of these terms and conditions including, in addition to Our other rights under the Terms and Conditions, the PPSA or any other applicable law without limitation, failure by You to make payment for the Goods by the date specified by Us to You or in Our reasonable opinion the payment of any amount in respect of the Goods supplied by Us is in jeopardy, You must return the Goods to Us immediately on demand.

6.4    If You do not return the Goods to Us on demand under clause 6.3, You irrevocably authorises representatives of Us to enter upon any site where the Goods are located to take possession of the Goods or any Processed Goods wherever they are located and to remove any goods which have become an Accession without prior notice, and You indemnify Us and any person appointed by Us to be a receiver of all or any of the Goods, Accessions, Processed Goods or other assets the subject of the security interests created by this document for all fees (including legal fees on a full indemnity basis), costs and expenses incurred or suffered as a result of any and all prosecution, actions, demands, claims or proceedings brought by or against Us in connection with the retaking possession of the Goods or the exercise by Us of its rights under this clause, and You shall repay all such fees, costs, losses, damages, expenses or any other sums of money on demand.

6.5    Despite clause 6.1 the Consumer may sell the Goods, any Accession or any Processed Goods to a third party in the normal course of the Consumer’s business provided that the Consumer holds the proceeds of sale on trust for the Us to the extent of the Amount Payable. The Consumer must keep those proceeds separate on trust for Us and not mix those proceeds with any other monies. Unless otherwise expressly agreed in writing, We will allocate and apply amounts received from the Consumer in the following order:

(i) In or towards payment of any part of the Amount Payable which is not part of the purchase price of any Goods, in the order in which those amounts were incurred; and

(ii) Secondly, in or towards payment of the purchase price of Goods in the order in which those Goods were invoiced. This order of allocation and application will apply notwithstanding any instruction, request or appropriation of the Consumer as to the way in which a payment made by it should be applied by Us, or any condition attached by the Consumer to any payment made by it.

7. Application of the PPSA

7.1    In this clause 7, PPSA means the Personal Property Securities Act 2009. If a term used in this clause has a particular meaning in the PPSA, it has the same meaning in this clause.

7.2    This clause 7 applies to the extent that Our interest in any Goods is a security interest.

7.3    The Goods are flooring, wall and upholstery products and accessories supplied to including but not limited to the marine, automotive and construction industries.

7.4    The Consumer grants to Us a security interest in the Goods to secure payment of the Amount Payable. The security interest:

(i) extends to and continues in all proceeds, Accessions and Processed Goods; and

(ii) is a purchase money security interest to the extent which it secures payment of that part of the Amount Payable which comprises the aggregate unpaid purchase price of the Goods

The Consumer must not do or permit anything to be done that may result in the purchase money security interest granted to Us ranking in priority behind any other security interest.

The Consumer charges in favour of Us, all of the Consumer’s interest and rights in all present and future real property of the Consumer to secure the performance of the Consumer’s obligations under each Contract, including payment of the Amount Payable. The Consumer acknowledges that We have a caveatable interest in any real property of the Consumer under this clause and may lodge a caveat over that property. For the purposes of this clause (7.4) We will be the relevant company in the that issues the Order Acknowledgment or appropriates or supplies the Goods in connection with an Order Acknowledgement.

You acknowledge and agree that We may apply to register a security interest in the Goods at any time before or after delivery of the Goods. You waive Your rights under 157 of the PPSA to receive notice of any verification of the registration.

7.5    We can apply amounts We receive from You towards amounts owing to it in such order as We choose.

7.6    If You default in the performance of any obligation owed to Us under these terms and conditions or any other agreement for Us to supply Goods to You, We may enforce Our security interest in any Goods by exercising all or any of Our rights under these terms and conditions or the PPSA. To the maximum extent permitted by law, You and We agree that the following provisions of the PPSA do not apply to the enforcement by Us of Our security interest in the Goods: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143.

7.7    You and We agree not to disclose information of the kind mentioned in s 275(1) of the PPSA, except in circumstances required by sections 275(7)(b)-(e) of the PPSA.

7.8    You must promptly do anything required by Us to ensure that Our security interest is a perfected security interest and has priority over all other security interests in the Goods

7.9    Nothing in this clause 7 is limited by any other provision of these Conditions or any other agreement between the parties.

8. Damage, Inaccuracies and Defects

8.1    You shall check all Goods received immediately upon unloading and shall notify Us in writing of any inaccuracies or short supply of Goods or any fault, damage or defect in Goods or failure of Goods to comply with the terms of a contract made pursuant to these Conditions within five (5) Business Days of the date of delivery of the Goods.

8.2    Subject to the rights of Consumers set out in these terms and conditions, if You do not notify Us in writing within five (5) Business Days of the date of delivery, We will not be responsible for any loss or damage whatsoever and howsoever caused arising out of or resulting from such inaccuracies or short supply of Goods, or fault, damage or defect in Goods or failure of Goods to comply with the terms of a contract, except if You are a purchaser under a Consumer Contract and such loss or damage arises from the negligence or wilful misconduct of Us, or any of its officers, employees or agents.

8.3    Subject to the rights of Consumers set out in these terms and conditions, if You notify Us in writing of a fault, damage or defect in Goods or failure of Goods to comply with the terms of a contract made pursuant to these terms and conditions within five (5) Business Days of delivery then We will, if in Our opinion, Your notice is reasonable and You have not used the Goods, at Our option, repair or replace the Goods that appear to be faulty, damaged or defective or not in compliance with the terms of a contract made pursuant to these terms and conditions and We shall have no additional liability to You.

8.4    Any queries regarding items shown on invoices issued by Us shall be lodged by You with Us within seven (7) days of the issue date of the relevant invoice.

9. Quality and Complaints

9.1    Immediately on delivery, You shall count and inspect the Goods for visible defects prior to storage or use. Following receipt of the goods, these will be deemed to be in line with the Agreement, unless Goods later turn out to have defects that are not easy to detect.

9.2    You must accept the usual tolerances regarding colour variation and dimensions as determined by the Manufacturer.

9.3    Complaints concerning quality, colour variation, visual defects and dimensions must be submitted to Us in writing and supported by photographic evidence within five (5) Business Days of the date of delivery of the Goods.

9.4    If Goods delivered by Us turn out to have a defect that is not easy to detect, You must lodge a written complaint with Us within fourteen (14) Business Days after the defect is detected.

9.5    You can no longer claim the Goods delivered by Us are not consistent with the Agreement if You have failed to lodge the complaint on time as specified in Clauses 9.3 and 9.4.

9.6    If the Goods are not consistent with the Agreement, We will only be required to either deliver the missing part, repair the Goods, Replace the Goods or refund the invoice amount to You upon return of the Goods, wholly at Our discretion and on the condition You have performed a timely and thorough inspection and lodged a complaint as specified in Clauses 9.3 and 9.4

9.7    Legal claims and statements of defense by You based on facts justifying the claim that the Goods delivered by Us are not consistent with the Agreement will expire 1 year after the delivery of the Goods to You.

9.8    You are required to adhere to Our instructions regarding the storage or return of Goods that are to be replaced or repaired. You continue to bear the risk of the Goods.

9.9    Complaints shall in no event entitle You to suspend Your (payment) obligations.

10. Warranties, Liabilities and Indemnities

10.1 Where applicable, Goods shall be installed in accordance with Our recommended fixing procedures as published from time to time and available on request from Us.

10.2 We acknowledge that consumer legislation contains certain guarantees for the supply of goods or services that cannot be excluded, restricted or modified by these Conditions. For example, for Consumers, goods come with non-excludable guarantees that they are of acceptable quality and fit for the purpose for which they are commonly acquired or for a purpose made known to Us and based on which the goods are supplied. Nothing in these terms and conditions are intended to exclude or restrict the application of such laws.

10.3 Subject to the rights of Consumers set out in clause 9.2:

(a) We shall not be responsible for the consequence of any representation made or technical advice given by Our employees, agents or sub-contractors in connection with the design, installation and use of the Goods, and You agree that all such advice is accepted by You entirely at Your risk;

(b) or as otherwise expressly specified in the terms of any applicable written warranty provided by Us, Our liability to You (whether arising under statute, contract, tort (including negligence), equity or otherwise) for any defect in the Goods, or the supply of the Goods, is limited, at Our option, to the repair of the Goods, the replacement of the Goods or paying for the cost of repair or replacement of the Goods.

(c) We are not liable to You or anyone else in connection with the Goods or the supply of the Goods or with these terms and conditions (including any changes to them), including without limitation for:

1. any losses, costs, damages, expenses, claims, demands, actions, suits or proceedings (including without limitation for damage to the Goods or injury to any person) arising from
2. the loading, unloading or delivery of the Goods;
3. a failure to deliver, or delay in delivering, the Goods;
4. a failure to install the Goods in accordance with Our recommended fixing procedures as published from time to time;
5. the removal of defective Goods or the installation of replacement Goods; or
6. the use of any tool or equipment loaned or hired out by Us;
7. Any direct, indirect or consequential loss or damage, any loss of actual or anticipated savings, opportunity, revenue, profit or goodwill, or other economic loss; and

iii. any claim, action or proceeding by a third party against You (or any loss, damages or liability incurred or suffered by You as a result of any such claim, action or proceeding); and

(d) You indemnify Us from and against all losses, damages, costs and expenses suffered or incurred by Us, and all claims, demands, suits, actions or proceedings made or brought against Us, arising out of:

1. Your use of or reliance on any materials, design, drawing or specification provided to Us by You (including any allegation or claim that any such use or reliance by Us infringes the intellectual property rights of any person);
2. Any loss or damage caused by or during the processing of materials supplied to Us by You; or

iii. Except if you are a Purchaser under a Consumer Contract and such loss or damage arises from the negligence or wilful misconduct of Us, or any of Our officers, employees or agents.

11. Miscellaneous

11.1 This Agreement is governed by the laws of New South Wales. Both parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.

11.2  Nothing in these terms and conditions shall constitute Us as a subcontractor of You. Our obligations are limited to those of a material supplier.

11.3 No waiver by Us of any default, breach or repudiation by You will affect our rights in respect of any further or continuing default, breach or repudiation.

11.4 In no event shall any delay, neglect or forbearance on Our part in enforcing (in whole or in part) any provision of these terms and conditions constitute an election not to enforce a contractual right (whether a right to terminate for breach or any other contractual right).

11.5 If any provision of this Agreement is or becomes illegal, invalid or unenforceable, such provision shall be severed and the remaining provision shall continue unaffected.

11.6 We may sell or assign either absolutely or by way of security Our rights under these terms and conditions or otherwise deal with the benefit of any contract made without Your consent.

11.7  You may not assign or sub-licence Your rights in whole or in part under these terms and conditions to a third party without Our prior written consent (such consent not to be unreasonably withheld or delayed).

11.8   We may in Our absolute discretion agree to a request by You to vary any terms of these terms and conditions. No variation will be effective unless it is in writing and is signed by or on behalf of each party.

11.9  These terms and conditions constitute the entire agreement of the parties and any prior agreements, understanding and negotiations in respect hereof are of no effect. If You do not sign these terms and conditions but take delivery of the Goods then are deemed to have accepted these terms and conditions and You irrevocably appoint any Director or officer of Us to execute this as attorney for You.

• Any notice or demand under or in relation to these terms and conditions will be deemed to be duly given or made if it is in writing and sent to the other party by facsimile, post or email at the address specified herein.
• Any process for the institution of proceedings by Us against You in respect of a cause of action arising under these terms and conditions or otherwise shall be deemed sufficiently served if sent to You in the manner prescribed in this clause.