Plumbing Discount Warehouse – Terms & Conditions of Trade

  1. Definitions

1.1 “Plumbing Discount Warehouse” shall mean Kaddle Pty Ltd T/A Plumbing Discount Warehouse its successors and assigns or any person acting on behalf of and with the authority of Kaddle Pty Ltd T/A Plumbing Discount Warehouse.

1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by Plumbing Discount Warehouse to the Customer.

1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.

1.4 “Products” shall mean Products supplied by Plumbing Discount Warehouse to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Plumbing Discount Warehouse to the Customer.

1.5 “Services” shall mean all Services and works undertaken by Plumbing Discount Warehouse, and includes any advice or recommendations (and where the context so permits shall include any supply of Products as defined above).

1.6 “Price” shall mean the price payable for the Products as agreed between Plumbing Discount Warehouse and the Customer in accordance with clause 4 of this contract.

  1. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)

2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

  1. Acceptance

3.1 Any instructions received by Plumbing Discount Warehouse from the Customer for the supply of Products and/or the Customer’s acceptance of Products supplied by Plumbing Discount Warehouse shall constitute acceptance of the terms and conditions contained herein.

3.2 Where more than one Customer has entered this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of Plumbing Discount Warehouse.

3.4 The Customer shall give Plumbing Discount Warehouse not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the

Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Plumbing Discount Warehouse as a result of the Customer’s failure to comply with this clause.

3.5 Products are supplied by Plumbing Discount Warehouse only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

  1. Price and Payment

4.1 At Plumbing Discount Warehouse’s sole discretion the Price shall be either:

(a) as indicated on invoices provided by Plumbing Discount Warehouse to the Customer in respect of Products supplied; or

(b) Plumbing Discount Warehouse’s current price at the date of delivery of the Products according to Plumbing Discount Warehouse’s current Pricelist; or

(c) Plumbing Discount Warehouse’s quoted Price (subject to clause 4.2) which shall be binding upon Plumbing Discount Warehouse provided that the Customer shall accept Plumbing Discount Warehouse’s quotation in writing within six (6) months.

4.2 Plumbing Discount Warehouse reserves the right to change the Price in the event of a variation to Plumbing Discount Warehouse’s quotation, or Plumbing Discount Warehouse may by giving notice to the Customer increase the Price of the Products to reflect any increase in the cost to Plumbing Discount Warehouse beyond the reasonable control of Plumbing Discount Warehouse (including, without limitation, foreign exchange fluctuations, warehousing costs, or increases in taxes or customs duties).

4.3 At Plumbing Discount Warehouse’s sole discretion:

(a) payment shall be due on delivery of the Products; or

(b) payment for approved Customers shall be made by instalments in accordance with Plumbing Discount Warehouse’s payment schedule; or

(c) payment for approved Customers shall be due thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.

4.4 Where no payment schedule has been specified, Plumbing Discount Warehouse may submit a detailed payment claim at intervals not less than one (1) month for Services performed up to the end of each month. The value of Services so performed shall include the reasonable value of authorised variations and the value of Products delivered to the site.

4.5 Time for payment for the Products shall be of the essence and will be stated on the invoice or any other forms. If no time is stated, then payment shall be due seven (7) days following the date of the invoice.

4.6 Payment will be made by cash or by credit card (plus a surcharge of up to three percent (3.0%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and Plumbing Discount Warehouse.

4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

  1. Delivery of Products

5.1 At Plumbing Discount Warehouse’s sole discretion delivery of the Products shall take place when:

(a) the Customer takes possession of the Products at Plumbing Discount Warehouse’s address; or

(b) the Customer takes possession of the Products at the Customer’s nominated address (in the event that the Products are delivered by Plumbing Discount Warehouse or Plumbing Discount Warehouse’s nominated carrier); or

(c) the Customer’s nominated carrier takes possession of the Products in which event the carrier shall be deemed to be the Customer’s agent.

5.2 At Plumbing Discount Warehouse’s sole discretion the costs of delivery are:

(a) included in the Price; or

(b) in addition to the Price; or

(c) for the Customer’s account.

5.3 The Customer shall make all arrangements necessary to take delivery of the Products whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Products as arranged then Plumbing Discount Warehouse shall be entitled to charge a reasonable fee for redelivery.

5.4 Delivery of the Products to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.

5.5 Plumbing Discount Warehouse may deliver the Products by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.6 The failure of Plumbing Discount Warehouse to deliver shall not entitle either party to treat this contract as repudiated.

5.7 Plumbing Discount Warehouse shall not be liable for any loss or damage whatsoever due to failure by Plumbing Discount Warehouse to deliver the Products (or any of them) promptly or at all, where due to circumstances beyond the control of Plumbing Discount Warehouse.

  1. Risk

6.1 If Plumbing Discount Warehouse retains ownership of the Products nonetheless, all risk for the Products passes to the Customer on delivery.

6.2 Where the Customer expressly requests Plumbing Discount Warehouse to leave Products outside Plumbing Discount Warehouse’s premises for collection or to deliver the Products to an unattended location then such Products shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Products are insured adequately or at all.

6.3 If any of the Products are damaged or destroyed following delivery but prior to ownership passing to the Customer, Plumbing Discount Warehouse is entitled to receive all insurance proceeds payable for the Products. The production of these terms and conditions by Plumbing Discount Warehouse is sufficient evidence of Plumbing Discount Warehouse’s rights to receive the insurance proceeds without the need for any person dealing with Plumbing Discount Warehouse to make further enquiries.

  1. Title

7.1 Plumbing Discount Warehouse and the Customer agree that ownership of the Products shall not pass until:

(a) the Customer has paid Plumbing Discount all amounts owing for the particular products; and

(b) the Customer has met all other obligations due by the Customer to Plumbing Discount Warehouse in respect of all contracts between Plumbing Discount Warehouse and the Customer.

7.2 Receipt by Plumbing Discount Warehouse 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 and until then Plumbing Discount Warehouse’s ownership or rights in respect of the Products shall continue.

7.3 It is further agreed that:

(a) where practicable the Products shall be kept separate and identifiable until Plumbing Discount Warehouse shall have received payment and all other obligations of the Customer are met; and

(b) until such time as ownership of the Products shall pass from Plumbing Discount Warehouse to the Customer Plumbing Discount Warehouse may give notice in writing to the Customer to return the Products or any of them to Plumbing Discount Warehouse. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Products shall cease; and

(c) Plumbing Discount Warehouse shall have the right of stopping the Products in transit whether delivery has been made; and

(d) if the Customer fails to return the Products to Plumbing Discount Warehouse then Plumbing Discount Warehouse or Plumbing Discount Warehouse’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Products are situated and take possession of the Products; and

(e) the Customer is only a bailee of the Products and until such time as Plumbing Discount Warehouse has received payment in full for the Products then the Customer shall hold any proceeds from the sale or disposal of the Products, up to and including the amount the Customer owes to Plumbing Discount Warehouse for the Products, on trust for Plumbing Discount Warehouse; and

(f) the Customer shall not deal with the money of Plumbing Discount Warehouse in any way which may be adverse to Mania National; and

(g) the Customer shall not charge the Products in any way nor grant nor otherwise give any interest in the Products while they remain the property of Plumbing Discount Warehouse; and

(h) Plumbing Discount Warehouse can issue proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products may not have passed to the Customer; and

(i) until such time that ownership in the Products passes to the Customer, if the Products are converted into other products, the parties agree that Plumbing Discount Warehouse will be the owner of the end products.

  1. Defects

8.1 The Customer shall inspect the Products on delivery and shall within five (5) days of delivery (time being of the essence) notify Plumbing Discount Warehouse of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Plumbing Discount Warehouse an opportunity to inspect the Products within a reasonable time following delivery if the Customer believes the Products are defective in any way. If the Customer shall fail to comply with these provisions the Products shall be presumed to be free from any defect or damage. For defective Products, which Plumbing Discount Warehouse has agreed in writing that the Customer is entitled to reject, Plumbing Discount Warehouse’s liability is limited to either (at Plumbing Discount Warehouse’s discretion) replacing the Products or repairing the Products except where the Customer has acquired Products as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Products, or repair of the Products, or replacement of the Products.

  1. Returns

9.1 Returns will only be accepted provided that:

(a) the Customer has complied with the provisions of clause 8.1; and

(b) Plumbing Discount Warehouse has agreed in writing to accept the return of the Products; and

(c) the Products are returned at the Customer’s cost within five (5) days of the delivery date; and

(d) the returned Products are accompanied by the delivery docket (or copy of it) and a written statement, including the original invoice number, date of purchase and reason for return; and

(e) Plumbing Discount Warehouse will not be liable for Products which have not been stored or used in a proper manner; and

(f) the Products are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

9.2 Plumbing Discount Warehouse may (at their sole discretion) accept the return of Products for credit but this may incur a handling fee of up to fifteen percent (15%) of the value of the returned Products plus any freight costs.

9.3 Non-stocklist items or Products made to the Customer’s specifications are under no circumstances acceptable for credit or return.

  1. Warranty

10.1 Subject to the conditions of warranty set out in clause 10.2 Plumbing Discount Warehouse warrants that if any defect in any workmanship of Plumbing Discount Warehouse becomes apparent and is reported to Plumbing Discount Warehouse within the specified timeframe (from the date of delivery) on the warranty documentation pertaining the Products, then Plumbing Discount Warehouse will either (at Plumbing Discount Warehouse’s sole discretion) replace or remedy the workmanship.

10.2 The conditions applicable to the warranty given by clause 10.1 are:

(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:

(i) the improper installation of the Products; or

(ii) failure on the part of the Customer to properly maintain the Products; or

(iii) failure on the part of the Customer to follow any operating instructions or guidelines provided by Mania National; or

(iv) any use of the Products otherwise than for any application specified on the quotation or order form; or

(v) the continued use of the Products after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or

(vi) fair wear and tear, any accident or act of God.

(b) the warranty shall cease and Plumbing Discount Warehouse shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Plumbing Discount Warehouse’s consent.

(c) in respect of all claims Plumbing Discount Warehouse shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.

10.3 For Products, components or parts not manufactured by Plumbing Discount Warehouse, the warranty shall be the current warranty provided by the manufacturer of the Products, components or parts. Plumbing Discount Warehouse shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Products, components or parts.

10.4 The conditions applicable to the warranty given on Products supplied by Plumbing Discount Warehouse are contained on the “Warranty Card” that will be supplied with the Products.

  1. Intellectual Property

11.1 Where Plumbing Discount Warehouse has designed, drawn or written Products for the Customer, then the copyright in those designs and drawings and documents shall remain vested in Plumbing Discount Warehouse, and shall only be used by the Customer at Plumbing Discount Warehouse’s discretion.

11.2 The Customer warrants that all designs or instructions to Plumbing Discount Warehouse will not cause Plumbing Discount Warehouse to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Plumbing Discount Warehouse against any action taken by a third party against Plumbing Discount Warehouse in respect of any such infringement.

11.3 The Customer hereby authorises Plumbing Discount Warehouse to utilise images of the Products designed or drawn by Plumbing Discount Warehouse in advertising, marketing, or competition material by Plumbing Discount Warehouse.

  1. Default & 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 one half percent (2.5%) per calendar month (and at Plumbing Discount Warehouse’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

12.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by Plumbing Discount Warehouse.

12.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Plumbing Discount Warehouse from and against all costs and disbursements incurred by Plumbing Discount Warehouse in pursuing the debt including legal costs on a solicitor and own client basis and Plumbing Discount Warehouse’s collection agency costs.

12.4 Without prejudice to any other remedies Plumbing Discount Warehouse may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Plumbing Discount Warehouse may suspend or terminate the supply of Products to the Customer and any of its other obligations under the terms and conditions. Plumbing Discount Warehouse will not be liable to the Customer for any loss or damage the Customer suffers because Plumbing Discount Warehouse has exercised its rights under this clause.

12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.

12.6 Without prejudice to Plumbing Discount Warehouse’s other remedies at law Plumbing Discount Warehouse shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Plumbing Discount Warehouse shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to Plumbing Discount Warehouse becomes overdue, or in Plumbing Discount Warehouse’s opinion the Customer will be unable to meet its payments as they fall due; or

(b) the Customer 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 Customer or any asset of the Customer.

  1. Security and Charge

13.1 Despite anything to the contrary contained herein or any other rights which Plumbing Discount Warehouse may have howsoever:

(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interests in the said land, realty or any other asset to Plumbing Discount Warehouse or Plumbing Discount Warehouse’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that Plumbing Discount Warehouse (or Plumbing Discount Warehouse’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.

(b) should Plumbing Discount Warehouse elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Plumbing Discount Warehouse from and against all Plumbing Discount Warehouse’s costs and disbursements including legal costs on a solicitor and own client basis.

(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Plumbing Discount Warehouse or Plumbing Discount Warehouse’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.

  1. Cancellation

14.1 Plumbing Discount Warehouse may cancel any contract to which these terms and conditions apply or cancel delivery of Products at any time before the Products are delivered by giving written notice to the Customer. On giving such notice Plumbing Discount Warehouse shall repay to the Customer any sums paid in respect of the Price. Plumbing Discount Warehouse shall not be liable for any loss or damage whatsoever arising from such cancellation.

14.2 In the event that the Customer cancels delivery of Products the Customer shall be liable for any loss incurred by Plumbing Discount Warehouse (including, but not limited to, any loss of profits) up to the time of cancellation.

14.3 Cancellation of orders for Products made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.

  1. Privacy Act 1988

15.1 The Customer and/or the Guarantor/s agree for Plumbing Discount Warehouse to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by Plumbing Discount Warehouse.

15.2 The Customer and/or the Guarantor/s agree that Plumbing Discount Warehouse may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:

(a) to assess an application by Customer; and/or

(b) to notify other credit providers of a default by the Customer; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or

(d) to assess the credit worthiness of Customer and/or Guarantor/s.

15.3 The Customer consents to Plumbing Discount Warehouse being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

15.4 The Customer agrees that personal credit information provided may be used and retained by Plumbing Discount Warehouse for the following purposes and for other purposes as shall be agreed between the Customer and Plumbing Discount Warehouse or required by law from time to time:

(a) provision of Products; and/or

(b) marketing of Products by Plumbing Discount Warehouse, its agents or distributors in relation to the Products; and/or

(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Products; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or

(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Products.

15.5 Plumbing Discount Warehouse may give information about the Customer to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Customer; and/or

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

  1. General

16.1 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.

16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia and are subject to the jurisdiction of the courts of Western Australia.

16.3 Plumbing Discount Warehouse shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Plumbing Discount Warehouse of these terms and conditions.

16.4 In the event of any breach of this contract by Plumbing Discount Warehouse the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Products.

16.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Plumbing Discount Warehouse nor to withhold payment of any invoice because part of that invoice is in dispute.

16.6 Plumbing Discount Warehouse may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

16.7 The Customer agrees that Plumbing Discount Warehouse may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Plumbing Discount Warehouse notifies the Customer of such change.

16.8 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.

16.9 The failure by Plumbing Discount Warehouse to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Plumbing Discount Warehouse’s right to subsequently enforce that provision.