In these Terms of Trade the following definitions apply:
‘Adjustable Living’ means Adjustable Living (ABN 87 635 345 596).
‘Customer’means the purchaser of Goods.
‘Deposit’means an amount set out in the Order Form, or as otherwise agreed between the Parties.
‘Fee’ means the total amount payable by the Customer to Adjustable Living for Goods purchased pursuant to the Order Form.
‘Goods’ means any of the products supplied to the Customer by or on behalf of Adjustable Living.
‘Invoice’means the invoice issued by Adjustable Living in relation to the purchase of Goods by the Customer.
‘Order’ means any offer made by the Customer to Adjustable Living to purchase Goods from Adjustable Living.
‘Order Form’means the Order Form, Quotation, and/or Tender accepted and signed by the Customer requesting the purchase of Goods from Adjustable Living.
‘Terms of Trade’ means the terms as set out in these Terms and Conditions.
“Website”means the Adjustable Living website found at www.adjustableliving.com.au
2.1 Each Order Form entered into between the Customer and Adjustable Living shall be governed by these Terms of Service.
2.2 By paying the Deposit (if any) and signing the Order Form, the Customer agrees to be bound by these Terms of Trade.
2.3 Adjustable Living reserves the right to amend, vary, modify and/or replace these Terms of Trade at any time, and from time to time.
2.4 The Customer agrees that any variations made to these Terms of Trade shall take effect fourteen (14) days after publication on the Website of both the varied Terms of Trade and a notification that the Terms of Trade have been varied.
2.5 The varied Terms of Trade shall not apply to any Order Form executed prior to notification of the varied Terms of Trade.
2.6 The Parties agree that where there is an inconsistency between these Terms of Trade and an Invoice, then the terms of the Invoice shall prevail.
3.1 In consideration of payment of the Fee, Adjustable Living agrees to provide the Goods ordered on the Order Form.
3.2 All Orders accepted by Adjustable Living will be executed at the Customer’s sole risk.
3.3 The Customer shall not be entitled to revoke or cancel any Order except with the written consent of Adjustable Living (and subject to Clause 7 herein) and on terms which shall indemnify Adjustable Living against any loss or damage caused by such cancellation of the Order made by the Customer.
4.1 All pricing as appearing on the Order Form and Invoices shall be (unless otherwise expressly stated) in Australian dollars, and shall be payable in Australian dollars upon completion of the Goods and prior to delivery (“Due Date”).
4.2 Adjustable Living shall be entitled to charge to following to the Customer:
(a) In the event that the Fees are not paid in full by the Due Date, interest of two point five percent (2.5%) per annum on any amount owed;
(b) If Adjustable Living is liable for GST in relation to the sale of the Goods, the Fee payable shall be increased by the total GST applicable to that amount;
(c) Should it become necessary for Adjustable Living to enforce any term of this Agreement either through legal representation, collection agency, or directly through a small claims Court, then the Customer agrees that it shall pay all reasonable legal fees, agency fees, court costs, and other reasonable collection costs; and
(d) An administration fee of Twenty Five dollars ($25.00) in the event that any cheque presented by the Customer to Adjustable Living is not honoured.
5.1 The Parties agree that delivery of any Goods purchased by the Customer shall be delivered to the Customer’s premises or the location as directed by the Customer, and that the Customer shall pay all reasonable transportation costs in respect to the delivery of those goods (including but not limited to freight charges).
5.2 The Customer acknowledges and agrees that any delivery date quoted by Adjustable Living is an approximate indication only, and that Adjustable Living shall not be held liable should any delivery be made after that date.
5.3 The Customer may not hold Adjustable Living liable for any Goods lost or damaged in transit whilst being delivered, through whatever cause including negligence, and any carrier of those Goods shall be deemed as agent of the Customer even where said carrier has been engaged by Adjustable Living.
5.4 The Customer understands and agrees that Adjustable Living shall not be held liable for any late delivery or failure to deliver caused by a force majeure event, including not limited to strikes, explosions, floods, riots, lockouts, injunction, interruption or transport accidents, inability to obtain equipment, government action, mechanical breakdown, interruption to internet service, any interruption, suspension, war, or an act of God. Adjustable Living may with the consent of the Customer cancel the Order, after which the Customer shall have no further claim on the Goods.
6.1 To the extent permissible by law, Adjustable Living will not refund, exchange or redeem for cash any Fee or Deposit made to it for Goods (“Payment”), unless otherwise agreed by Adjustable Living in writing.
6.2 Adjustable Living will only exchange a Payment where Adjustable Living has made a fundamental error or mistake, in which case the exchange shall be limited to a replacement or reparation of the Goods.
6.3 Goods returned by the Customer without the consent of Adjustable Living shall not be accepted for credit and Adjustable Living shall be entitled to:
(a) Return the Goods to the Customer at the Customer’s sole expense; or
(b) Hold the Goods as a security against any Fees owed by the Customer, and may sell the Goods and apply those proceeds to any debt owing by the Customer to Adjustable Living.
6.4 If Adjustable Living consents in writing to the return of the Goods, Adjustable Living shall charge an additional handling fee of ten percent (10%) of the original Fee for the Goods returned (in addition to the forfeited Deposit, if any). In addition, all transportation costs shall also be payable by the Customer.
7.1 The Customer shall be entitled to a 24 hour cooling off period (“Cooling Off Period”), in which is may cancel any Order made.
7.2 In the event the Customer cancels the Order after the Order Form has been executed and returned to Composite Furnishing, and after the Cooling Off Period, then Adjustable Living shall be entitled to retain the Deposit.
7.3 In the event the Customer cancels the Order after both the Order Form and Deposit have been given to Adjustable Living and the Goods have been manufactured, then the Customer shall forfeit the Deposit plus an additional ten percent (10%) of the Fee.
7.4 In the event the Customer cancels the Order after the Goods have been delivered, Clause 6 shall apply, and the Customer shall be required to pay the full Fee.
7.5 In the event that Adjustable Living cancels the Order after the Goods, or part thereof, have been delivered, then Adjustable Living shall only be permitted to invoice for that part of the Goods actually completed and delivered.
8.1 In the event that the Customer decides to amend or change any specifications in respect to the Goods ordered after the Order Form has been provided to Adjustable Living, the Customer agrees that such request for amendments to the specifications shall be made in writing to Adjustable Living, and that the Customer shall cover any additional costs incurred by Adjustable Living in respect to those variations.
9.1 Title to the Goods delivered to the Customer will not pass to the Customer until such time as the Fee in respect to those Goods has been paid by the Customer to Adjustable Living in full.
9.2 Notwithstanding Clause 9.1 above, all risk of loss, damage or injury to the Goods will pass to the Customer from Adjustable Living on delivery pursuant to Clause 5.1 above.
9.3 The Customer shall indemnify and keep indemnified Adjustable Living against any and all loss, damage or injury to the Goods from the date of delivery of the Goods to the Customer until full payment of the Fee as set out in Clause 9.1 has been received by Adjustable Living.
9.4 Until full payment of the Fee for the Goods is received by Adjustable Living, the Customer shall hold the Goods as bailee for Adjustable Living. The Customer shall be entitled to sell the Goods in the ordinary course of business, however the consideration of any such sale shall belong to Adjustable Living.
9.5 The Customer shall not at any time represent to any third party that it is in any way acting for or acting as agent for Adjustable Living, and Adjustable Living shall not be bound by any contract in relation to the Goods which the Customer may enter into with any third party.
10.1 In the event that:
(a) the Customer fails to pay the Fee by the Due Date;
(b) any cheque, promissory note, or other bill of exchange given to Adjustable Living is not honoured on its first presentation;
(c) an application or order is made for the winding up or sequestration of the Customer or an application or order is made to place the Customer under external management or administration;
(d) any of the assets of the Customer or any of the Goods in the possession of the Customer which have not been paid in full, are seizes pursuant to a legal process issued against it;
(e) a receiver, manager, controller, administrator, external manager or trustee is appointed over any of the assets of the Customer; or
(f) the Customer ceases to carry on business,
then Adjustable Living shall be entitled to without prejudice and in addition to all rights granted pursuant to these Terms of Trade or at law or equity to:
(a) continue to enforce its rights and recover any amounts owing by the Customer;
(b) claim immediate payment of all monies due by the Customer, notwithstanding the Due Date; and/or
(c) cancel all or any additional Orders placed by the Customer, upon which the Customer shall immediately return any Goods already delivered to it, and the Customer shall be liable to Adjustable Living for any loss or damage Adjustable Living may have suffered or may suffer as a consequence of such cancellation.
11.1 To the extent permissible by law, Adjustable Living makes no representations, whether express or implied, as the merchantability, condition, durability or fitness for purpose for which the Goods are used. Further any implied warranty as to latent defects is expressly excluded. Without limiting the foregoing.
11.2 At no stage and in no event shall Adjustable Living be responsible for any loss, damage, cost, or expense suffered, incurred or sustained by the Customer arising out of or through the negligence of Adjustable Living, its agents, or employees.
11.3 Adjustable Living shall provide an eighteen (18) month workmanship warranty. Such workmanship warranty shall be strictly limited to faulty materials or workmanship, and in this event Adjustable Living agrees to replace or repair the faulty Goods as its sole discretion. This workmanship warranty shall expressly exclude loss or damage caused by gross negligence or wilful misconduct.
11.4 Otherwise the Goods are covered by the warranties of Adjustable Living’s suppliers and it shall be the sole responsibility of the Customer to contact and seek the redemption of said warranties directly with those suppliers.
11.5 Adjustable Living warrants that all Goods provided are in accordance with industry and manufacturing standards.
11.6 The warranties contained herein shall not be read or applied so as to purport to exclude, restrict or modify the application in respect to the supply of Goods or services pursuant to these Terms of Trade of any or all of the provisions of the Competition and Consumer Act 2010(Cth) (“CCA”) or any other statute of any state or territory of Australia which by law cannot be excluded or modified.
12.1 Except as provided for in these Terms of Trade, Adjustable Living makes no representation of any kind, express or implied with respect to the provision of the Goods.
12.2 To the extent any warranty is made, the sole and exclusive remedy for a breach of any warranty is at Adjustable Living’ option to either replace or repair the Goods in question.
12.3 To the extent permitted by law, all conditions, warranties, and terms implied by law and any liability for consequential or indirect damages are excluded from these Terms of Trade.
13.1 This Agreement shall be subject to the laws of the Queensland, and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Queensland.
13.2 Any provision of, or the application of any provision of, this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
13.3 Any provision of, or the application of any provision of, this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
13.4 If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
13.5 The failure of either party at any time to require performance by the other party of any provision of this Agreement does not affect the party's right to require the performance at any time.
13.6 The waiver by either party of a breach of any provision must not be held to be a waiver of any succeeding breach of the provision or a waiver of the provision itself.
13.7 This Agreement supersedes all previous agreements, arrangements, understandings, representations or any other communication in respect of the subject matter of this Agreement and embodies the entire agreement between the parties.
13.8 This Agreement may not be changed or modified in any way subsequent to its execution except in writing signed by the parties.
13.9 In this Agreement, headings are for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b)words with a capital letter where defined in this Agreement have that meaning;
(c) words importing a gender include any gender;
(d)other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
(e) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and vice versa;
(f) a reference to any thing (including, but not limited to, any right) includes a part of that thing;
(g) a reference to a party in a document includes that party's successors and permitted assigns;
(h)a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
(i) a reference to a document or agreement includes all amendments or supplements to, or replacements or novations of, that document or agreement.
13.10The Customer indemnifies Adjustable Living against any or all taxation liability arising from this Agreement or Services provided to the Customer.
13.11The foregoing provisions of this Agreement apply except as otherwise agreed in writing between the Customer on the one hand and Adjustable Living on the other.
Last modified September 2019