Terms & Conditions
Elite Home Improvements of Australia Pty Ltd – Terms & Conditions of Trade
© Copyright – EC Credit Control 1999 – 2021
1. Definitions
1.1 “Company” means Elite Home Improvements of Australia Pty Ltd, its successors and assigns or any person acting
on behalf of and with the authority of Elite Home Improvements of Australia Pty Ltd.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more
than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by the Company to the Client at the Client’s request from time to
time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between the Company and the Client in accordance with
clause 4 below.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms
and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the Company’s consent in writing and shall prevail to the
extent of any inconsistency with any other document or agreement between the Client and the Company.
3. Change in Control
3.1 The Client shall give the Company not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the
Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss
incurred by the Company as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At the Company’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Company to the Client; or
(b) the Company’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or
otherwise for a period of thirty (30) days.
4.2 The Company reserves the right to change the Price if a variation to the Company’s quotation is requested. Any
variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to
unforeseen circumstances, or as a result of increases to the Company in the cost of materials and labour) will be
charged for on the basis of the Company’s quotation and will be shown as variations on the invoice. Payment for
all variations must be made in full at their time of completion.
4.3 At the Company’s sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s
determined by the Company, which may be:
(a) on delivery of the Goods;
(b) by way of instalments/progress payments in accordance with the Company’s payment schedule;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the
Client by the Company.
4.5 Payment may be made by cash, bank cheque, credit card (plus a surcharge of up to two and a half percent (2.5%)
of the Price), or by any other method as agreed to between the Client and the Company.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the
Company an amount equal to any GST the Company must pay for any supply by the Company under this or any
other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other
amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any
other taxes and duties that may be applicable in addition to the Price except where they are expressly included in
the Price.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that the Company (or the Company’s nominated
carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.2 At the Company’s sole discretion the cost of delivery is included in the Price.
5.3 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the
event that the Client is unable to take delivery of the Goods as arranged then the Company shall be entitled to
charge a reasonable fee for redelivery and/or storage.
5.4 The Company may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid
in accordance with the provisions in these terms and conditions.
5.5 Any time or date given by the Company to the Client is an estimate only. The Client must still accept delivery of the
Goods even if late and the Company will not be liable for any loss or damage incurred by the Client as a result of
the delivery being late.
6. Risk
6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or
before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the
Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds
without the need for any person dealing with the Company to make further enquiries.
6.3 If the Client requests the Company to leave Goods outside the Company’s premises for collection or to deliver the
Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
7. Title
7.1 The Company and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Company all amounts owing to the Company; and
(b) the Client has met all of its other obligations to the Company.
7.2 Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form
of payment has been honoured, cleared or recognised.
7.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 7.1 that the Client is only a bailee of
the Goods and must return the Goods to the Company on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Company and must pay to the
Company the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary
course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then
the Client must hold the proceeds of any such act on trust for the Company and must pay or deliver the
proceeds to the Company on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so
then the Client holds the resulting product on trust for the benefit of the Company and must sell, dispose of or
return the resulting product to the Company as it so directs.
(e) the Client irrevocably authorises the Company to enter any premises where the Company believes the Goods
are kept and recover possession of the Goods.
(f) the Company may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any
interest in the Goods while they remain the property of the Company.
(h) the Company may commence proceedings to recover the Price of the Goods sold notwithstanding that
ownership of the Goods has not passed to the Client.
8. Personal Property Securities Act 2009 (“PPSA”)
8.1 In this clause financing statement, financing change statement, security agreement, and security interest has the
meaning given to it by the PPSA.
8.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and
conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all
Goods that have previously been supplied and that will be supplied in the future by the Company to the Client.
8.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete,
accurate and up-to-date in all respects) which the Company may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal
Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 8.3(a)(i) or 8.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Company for all expenses incurred in registering a financing
statement or financing change statement on the Personal Property Securities Register established by the PPSA
or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the
Company;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the
Goods in favour of a third party without the prior written consent of the Company;
(e) immediately advise the Company of any material change in its business practices of selling the Goods which
would result in a change in the nature of proceeds derived from such sales.
8.4 The Company and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security
agreement created by these terms and conditions.
8.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the
PPSA.
8.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by the Company, the Client waives their right to receive a verification
statement in accordance with section 157 of the PPSA.
8.8 The Client must unconditionally ratify any actions taken by the Company under clauses 8.3 to 8.5.
8.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the
effect of contracting out of any of the provisions the PPSA.
9. Security and Charge
9.1 In consideration of the Company agreeing to supply the Goods, the Client charges all of its rights, title and interest
(whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either
now or in the future, to secure the performance by the Client of its obligations under these terms and conditions
(including, but not limited to, the payment of any money).
9.2 The Client indemnifies the Company from and against all the Company’s costs and disbursements including legal
costs on a solicitor and own client basis incurred in exercising the Company’s rights under this clause.
9.3 The Client irrevocably appoints the Company and each director of the Company as the Client’s true and lawful
attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to,
signing any document on the Client’s behalf.
10. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
10.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify the Company in
writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The
Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect
becomes evident. Upon such notification the Client must allow the Company to inspect the Goods.
10.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory
implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be
implied into these terms and conditions (Non-Excluded Guarantees).
10.3 The Company acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-
Excluded Guarantees.
10.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the
Company makes no warranties or other representations under these terms and conditions including but not limited
to the quality or suitability of the Goods. The Company’s liability in respect of these warranties is limited to the
fullest extent permitted by law.
10.5 If the Client is a consumer within the meaning of the CCA, the Company’s liability is limited to the extent permitted
by section 64A of Schedule 2.
10.6 If the Company is required to replace the Goods under this clause or the CCA, but is unable to do so, the Company may refund any money the Client has paid for the Goods.
10.7 If the Client is not a consumer within the meaning of the CCA, the Company’s liability for any defect or damage in
the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Company at the
Company’s sole discretion;
(b) limited to any warranty to which the Company is entitled, if the Company did not manufacture the Goods;
(c) otherwise negated absolutely.
10.8 Subject to this clause 10, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 10.1; and
(b) the Company has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
10.9 Notwithstanding clauses 10.1 to 10.8 but subject to the CCA, the Company shall not be liable for any defect or
damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent
to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by the Company;
(e) fair wear and tear, any accident, or act of God.
10.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it
has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that
to the extent permitted by law no warranty is given by the Company as to the quality or suitability for any purpose
and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that
the Company has agreed to provide the Client with the second hand Goods and calculated the Price of the second
hand Goods in reliance of this clause 10.10.
10.11 Notwithstanding anything contained in this clause if the Company is required by a law to accept a return then the
Company will only accept a return on the conditions imposed by that law.
11. Intellectual Property
11.1 Where the Company has designed, drawn or developed Goods for the Client, then the copyright in any designs
and drawings and documents shall remain the property of the Company.
11.2 The Client warrants that all designs, specifications or instructions given to the Company will not cause the
Company to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client
agrees to indemnify the Company against any action taken by a third party against the Company in respect of any
such infringement.
11.3 The Client agrees that the Company may (at no cost) use for the purposes of marketing or entry into any
competition, any documents, designs, drawings or Goods which the Company has created for the Client.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of
payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Company’s sole discretion such
interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 If the Client owes the Company any money the Client shall indemnify the Company from and against all costs and
disbursements incurred by the Company in recovering the debt (including but not limited to internal administration
fees, legal costs on a solicitor and own client basis, the Company’s collection agency costs, and bank dishonour
fees).
12.3 Without prejudice to any other remedies the Company may have, if at any time the Client is in breach of any
obligation (including those relating to payment) under these terms and conditions the Company may suspend or
terminate the supply of Goods to the Client. The Company will not be liable to the Client for any loss or damage the
Client suffers because the Company has exercised its rights under this clause.
12.4 Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Company shall, whether or not due
for payment, become immediately payable if:
(a) any money payable to the Company becomes overdue, or in the Company’s opinion the Client will be unable to
make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement
with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Cancellation
13.1 The Company may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Company
shall repay to the Client any money paid by the Client for the Goods. The Company shall not be liable for any loss
or damage whatsoever arising from such cancellation.
13.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether
direct or indirect) by the Company as a direct result of the cancellation (including, but not limited to, any loss of
profits).
13.3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
14. Privacy Act 1988
14.1 The Client agrees for the Company to obtain from a credit reporting agency a credit report containing personal
credit information about the Client in relation to credit provided by the Company.
14.2 The Client agrees that the Company may exchange information about the Client with those credit providers either
named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for
the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in
default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act
1988.
14.3 The Client consents to the Company being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4 The Client agrees that personal credit information provided may be used and retained by the Company for the
following purposes (and for other purposes as shall be agreed between the Client and Company or required by law
from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by the Company, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;
and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
14.5 The Company may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
14.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and
driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that the Company is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by
more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f) information that, in the opinion of the Company, the Client has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more
than once;
(h) that credit provided to the Client by the Company has been paid or otherwise discharged.
15. Unpaid Company’s Rights
15.1 Where the Client has left any item with the Company for repair, modification, exchange or for the Company to
perform any other service in relation to the item and the Company has not received or been tendered the whole of
any moneys owing to it by the Client, the Company shall have, until all moneys owing to the Company are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the
sale or disposal of uncollected goods.
15.2 The lien of the Company shall continue despite the commencement of proceedings, or judgment for any moneys
owing to the Company having been obtained against the Client.
16. Building and Construction Industry Security of Payments Act 1999
16.1 At the Company’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the
provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
17. General
17.1 The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision, nor shall it affect the Company’s right to subsequently enforce that provision. If any provision of
these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and
enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in
which the Company has its principal place of business, and are subject to the jurisdiction of the courts in that state.
17.3 Subject to clause 10 the Company shall be under no liability whatsoever to the Client for any indirect and/or
consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the
Company of these terms and conditions (alternatively the Company’s liability shall be limited to damages which
under no circumstances shall exceed the Price of the Goods).
17.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Company nor to withhold payment of any invoice because part of that invoice is in dispute.
17.5 The Company may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.6 The Client agrees that the Company may amend these terms and conditions at any time. If the Company makes a
change to these terms and conditions, then that change will take effect from the date on which the Company
notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a
further request for the Company to provide Goods to the Client.
17.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.