TERMS & CONDITIONS
Trading as Rust Furniture (“Rust Furniture”) and the customer (“you”) agree that these terms & conditions contain the entire understanding between Rust Furniture and you (“the Terms”), irrespective of anything that may be implied or expressed to the contrary on your enquiries or orders.
Application of Terms and Conditions
1. By placing an Order you are deemed to have accepted the Terms.
2. Unless it states otherwise, a quotation:-
a. Does not include delivery costs; and
b. Will remain open for acceptance for fourteen (14) days from its date, after which time it is deemed to be withdrawn.
3. Your order(s) will be accepted by Rust Furniture either when Rust Furniture communicates its acceptance to you, or when Rust Furniture takes steps to fill your order, irrespective of whether those steps are communicated to you.
4. Rust requires payment in full at least three (3) working days prior to collection or delivery of the Goods.
5. An exception to Clause 4 must be requested in writing and may be accepted or rejected at the discretion of Rust Furniture.
Change of Mind
6. Rust Furniture has the right to retain all funds paid by you for any cancellations that involve a change of mind.
Delivery and Storage
7. You must pay all costs of and incidental to delivery of the Goods to you.
8. If you do not take delivery of the Goods when Rust Furniture notifies you to do so, you must pay for all costs incurred by Rust Furniture for storage, detention, or similar causes.
9. If Goods are stored at Rust Furniture’s premises pursuant to Clause 8, a fee of $25.00 per day will be chargeable to you.
10. Rust Furniture will notify you as soon as is practicable of any anticipated delays in delivery.
11. Delivery of the Goods shall be at your risk.
Retention of Title
12. In placing any order you expressly represent that you:
a. Are solvent and have not committed an act of bankruptcy; and
b. Know of no circumstances which would entitle any debenture holder or secured creditor to appoint a receiver or which would entitle any creditor or shareholder to apply to the court to liquidate the company or exercise any other rights over or against your assets.
13. The title or property in any goods delivered by Rust Furniture to you shall pass to you only upon payment in full by you to Rust Furniture in relation to such goods. Rust Furniture holds a security interest in all goods supplied to you for payment of those moneys.
14. Until all moneys due to Rust Furniture are paid by you, you agree to act as a fiduciary of Rust Furniture and that you will:
a. Not sell, charge or part with possession of the goods, otherwise than for their full values in the ordinary course of business;
b. Not alter, obliterate, or deface the goods and will not alter, obliterate, deface, cover up, or remove any identity mark indicating that the goods are Rust Furniture’s property.
c. Store the goods in such manner that they are clearly identifiable as Rust Furniture’s property and must keep separate records of the goods;
d. Hold the proceeds of the resale of the goods in trust for Rust Furniture, in a separate and identifiable manner.
15. You waive any right to receive a verification statement under the PPSA.
16. Nothing in sections 130(1)(a), 143(1) and 143(2) of the PPSA shall apply to these terms. Your rights as a debtor in sections 170, 173 and 175 of the PPSA shall not apply to these terms and conditions of sale.
17. Your right to sell goods will terminate forthwith on written notice of such termination being delivered by Rust Furniture to your place of business.
18. Your right to possession of the goods shall cease if:
a. You commit an available act of bankruptcy; or
b. You do anything or fail to do anything in circumstances where such act or omission operates to entitle a receiver or liquidator to take possession of any assets or which would entitle any person to apply to the court to liquidate you; or
c. You are overdue in making payment of any sum due to Rust Furniture and Rust Furniture makes demand. Demand may be made upon you or any employee or authorised agent of you by Rust Furniture or any employee or authorised agent of Rust Furniture either in writing at any time prior to repossession or verbally or in writing at the time of repossession; or
d. Notice is given terminating your right to sell goods; or
e. This agreement is terminated.
19. For the purpose of recovery of the goods, Rust Furniture made by Rust Furniture’s employee(s) or agent(s) enter upon any premises where the goods are stored or where they are reasonably thought to be stored and may repossess the same. This permission is irrevocable and you agree that the employees, servants or agents of Rust Furniture so entering are not trespassing. You irrevocably agree you will not seek to invoke the provisions of any acts to warn such persons to leave your premises, nor will you procure any other person to take such action.
Retention of Title (Continued)
20. Any goods held by you which meet the description of goods on an invoice in respect of which either payment has not been made in full or in respect of which title to goods has not transferred from Rust Furniture hereunder shall, in the absence of separate storage of goods in terms of clause 12(c)(iii) herein and in the absence of evidence to the contrary, be deemed to be goods to which Rust Furniture has retained title so that Rust Furniture shall be entitled to exercise any of Rust Furniture’s remedies hereunder against such goods.
21. If you have not received the proceeds of sale of the goods subject to this clause then you will within seven (7) days of being called upon so to do by Rust Furniture assign to Rust Furniture all right which you may have against the person or persons to whom you have supplied any goods.
22. Following repossession of the goods Rust Furniture shall sell the goods in whatever manner Rust Furniture deems appropriate whether wholesale or retail, and shall credit the account of you with the net proceeds of sale. The net proceeds of sale shall be the actual price received for the goods less all costs of sale including if incurred, rental of premises, staff wages, transport costs, advertising costs and all out of pocket expenses. Rust Furniture shall be obliged to list all goods repossessed but shall not be obliged to record or account for the sale of goods on an item by item basis. Proceeds of sale may be accounted for globally.
23. The debt owing by you to Rust Furniture at the date of repossession of goods shall, as between the parties, be deemed to include any payment previously received by Rust Furniture which might be claimed to be void under any law relating to bankruptcy, liquidation or the protection of creditors irrespective of whether such a claim shall have been made at that date.
Return of Product/Claims
24. You must inspect the Goods immediately upon receipt of delivery.
25. You must give notice in writing to Rust Furniture of anything that suggests that the Goods delivered do not comply with the quotation within two (2) business days of receipt of delivery of the Goods.
26. Subject to Clause 25, payment for the Goods and/or possession of the Goods shall be deemed to imply acceptance of the condition of the Goods, including but not limited to the design, patina, welding, leg placement, colour and timber used in the manufacture of the Goods.
27. You may not make a claim in respect of the Goods delivered unless at the time of your claim:-
a. All Goods which are the subject of your claim are intact and still in your possession; and
b. You have provided full details of the reason for your return of the Goods to Rust Furniture, and Rust Furniture has accepted these reasons.
28. Rust Furniture may, after being given the written notice referred to in Clause 25 herein, accept the return of Goods.
29. All returns:-
a. Must occur within fourteen (14) days of the date of delivery; and
b. Must be “as new”.
30. A credit note will not be issued unless Rust Furniture is satisfied that the Goods are in the same condition that they were in when they were delivered to you and further, Rust Furniture is satisfied that you have complied with all of your obligations under the Terms.
Limitation of Liability.
31. Any representation made by Rust Furniture in relation to the Goods, their use, suitability for your purpose, performance, care or application is given in good faith. You acknowledge that Rust Furniture may not be aware of your intended end use of the Goods.
32. Subject only to the extent permissible at law, Rust Furniture shall not be liable to you for, and you expressly release and discharge Rust Furniture from any consequential loss, economic loss or any other loss or damage (“loss”) that you incur as a direct or indirect result of your purchase, sale, use or application of the Goods or the services;
33. All representations other than those expressly stated in the Terms, whether implied by statute, common law, custom of the trade or otherwise, are to the extent that the law permits, expressly excluded.
34. You acknowledge that, to the maximum extent permitted by law, any liability to you will be limited in the case of defective Goods only to:-
a. Replacement by Rust Furniture of the Goods; or
b. The return of any monies that you have paid in respect of the Goods.
35. You will indemnify Rust Furniture for all and any loss and damage incurred by Rust Furniture, whether as a direct or indirect result of your failure to observe these terms, your failure to discharge your duties under the common law, statute or otherwise.
36. Rust Furniture may charge interest on any overdue invoice at the penalty rate fixed under the Penalty Interest Rate Act 1983 (Vic) payable from the due date until the invoice is paid in full.
37. You shall pay all legal, mercantile and administrative costs and expenses incurred by Rust Furniture on an indemnity basis in respect of any default under the Terms by you.
38. You agree that all contracts made with Rust Furniture shall be governed by the laws of the state of Victoria and the parties shall submit to the exclusive jurisdiction of the courts of the state of Victoria.