Terms And Conditions

Terms and Conditions of Trade



  1. Definitions
    1. “DMP” means Dowpac Pty Ltd T/A Dowling Metal Products, its successors and assigns or any person acting on behalf of and with the authority of Dowpac Pty Ltd T/A Dowling Metal Products.
    2. “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
    3. “Goods” means all Goods or Services supplied by DMP to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
    4. “Price” means the Price payable for the Goods as agreed between DMP and the Customer in accordance with clause 5 below.
  2. Acceptance
    1. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
    2. These terms and conditions may only be amended with DMP’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and DMP.
  3. Electronic Transactions Act 2000
    1. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
  4. Change in Control
    1. The Customer shall give DMP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by DMP as a result of the Customer’s failure to comply with this clause.
  5. Price and Payment
    1. At DMP’s sole discretion the Price shall be either:
      (a) as indicated on any invoice provided by DMP to the Customer; or
      (b) the Price as at the date of delivery of the Goods according to DMP’s current price list; or
      (c) DMP’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of sixty (60) days.
    2. DMP reserves the right to change the Price if a variation to DMP’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseen circumstances such as availability of machinery, safety considerations, prerequisite work by any third party not being completed, changes to designs, fluctuations in raw materials prices, or as a result of any increase to DMP’s in the cost of materials and labour) will be charged for on the basis of DMP’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.
    3. Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by DMP, which may be:
      (a) on delivery of the Goods;
      (b) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
      (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 Customer by DMP.
    4. Payment may be made by cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and DMP.
    5. Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to DMP an amount equal to any GST DMP must pay for any supply by DMP under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
  6. Delivery of Goods
    1. Delivery (“Delivery”) of the Goods is taken to occur at the time that:
      (a) the Customer or the Customer’s nominated carrier takes possession of the Goods at DMP’s address; or
      (b) DMP (or DMP’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
    2. At DMP’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
    3. The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then DMP shall be entitled to charge a reasonable fee for redelivery and/or storage.
    4. DMP 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. Any time or date given by DMP to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and DMP will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
  7. Risk
    1. Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
    2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, DMP is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by DMP is sufficient evidence of DMP’s rights to receive the insurance proceeds without the need for any person dealing with DMP to make further enquiries.
    3. Where the Customer is to supply DMP with any design specifications (including, but not limited to CAD drawings) the Customer shall be responsible for providing accurate data. DMP shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Customer.
    4. The Customer acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. DMP will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
    5. The Customer acknowledges that where an anodised surface finish has been selected, slight colour variation may occur between the main unit frame and any installation trims used due to the difference in aluminium alloys available and manufacturing standards and tolerances shall not deemed to be a defect in the Goods.
    6. The Customer acknowledges that Goods supplied may:
      (a) fade or change colour over time; and
      (b) expand, contract or distort as a result of exposure to heat, cold, weather; and
      (c) mark or stain if exposed to certain substances; and
      (d) be damaged or disfigured by impact or scratching.
    7. The Customer shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
  8. Accuracy of Customer’s Plans and Measurements
    1. DMP shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, DMP accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
    2. All customary industry tolerances shall apply to the dimensions and measurements of the Goods unless DMP and the Customer agree otherwise in writing.
  9. Title
    1. DMP and the Customer agree that ownership of the Goods shall not pass until:
      (a) the Customer has paid DMP all amounts owing to DMP; and
      (b) the Customer has met all of its other obligations to DMP.
    2. Receipt by DMP 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.
    3. It is further agreed that:
      (a) until ownership of the Goods passes to the Customer in accordance with clause 9.1 that the Customer is only a bailee of the Goods and must return the Goods to DMP on request.
      (b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for DMP and must pay to DMP the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
      (c) the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for DMP and must pay or deliver the proceeds to DMP on demand.
      (d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of DMP and must sell, dispose of or return the resulting product to DMP as it so directs.
      (e) the Customer irrevocably authorises DMP to enter any premises where DMP believes the Goods are kept and recover possession of the Goods.
      (f) DMP may recover possession of any Goods in transit whether or not delivery has occurred.
      (g) the Customer 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 DMP.
      (h) DMP may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
  10. Personal Property Securities Act 2009 (“PPSA”)
    1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
    2. Upon assenting to these terms and conditions in writing the Customer 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 and/or collateral (account) – being a monetary obligation of the Customer to DMP for Services – that have previously been supplied and that will be supplied in the future by DMP to the Customer.
    3. The Customer 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 DMP 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 10.3(a)(i) or 10.3(a)(ii);
      (b) indemnify, and upon demand reimburse, DMP 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 DMP;
      (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of DMP;
      (e) immediately advise DMP 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.
    4. DMP and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    5. The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    6. The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    7. Unless otherwise agreed to in writing by DMP, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    8. The Customer must unconditionally ratify any actions taken by DMP under clauses 10.3 to 10.5.
    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 of the PPSA.
  11. Security and Charge
    1. In consideration of DMP agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    2. The Customer indemnifies DMP from and against all DMP’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising DMP’s rights under this clause.
    3. The Customer irrevocably appoints DMP and each director of DMP as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Customer’s behalf.
  12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    1. The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify DMP in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow DMP to inspect the Goods.
    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).
    3. DMP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, DMP makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. DMP’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    5. If the Customer is a consumer within the meaning of the CCA, DMP’s liability is limited to the extent permitted by section 64A of Schedule 2.
    6. If DMP is required to replace the Goods under this clause or the CCA, but is unable to do so, DMP may refund any money the Customer has paid for the Goods.
    7. If the Customer is not a consumer within the meaning of the CCA, DMP’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 Customer by DMP at DMP’s sole discretion;
      (b) limited to any warranty to which DMP is entitled, if DMP did not manufacture the Goods;
      (c) otherwise negated absolutely.
    8. Subject to this clause 12, returns will only be accepted provided that:
      (a) the Customer has complied with the provisions of clause 12.1; and
      (b) DMP has agreed that the Goods are defective; and
      (c) the Goods are returned within a reasonable time at the Customer’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.
    9. Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, DMP 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 Customer failing to properly maintain or store any Goods;
      (b) the Customer using the Goods for any purpose other than that for which they were designed;
      (c) the Customer 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 Customer failing to follow any instructions or guidelines provided by DMP;
      (e) fair wear and tear, any accident, or act of God.
    10. Notwithstanding anything contained in this clause if DMP is required by a law to accept a return then DMP will only accept a return on the conditions imposed by that law.
  13. Intellectual Property
    1. The Customer warrants that all designs, specifications or instructions given to DMP will not cause DMP to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify DMP against any action taken by a third party against DMP in respect of any such infringement.
    2. The Customer agrees that DMP may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which DMP has created for the Customer.
  14. Default and Consequences of Default
    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 DMP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Customer owes DMP any money the Customer shall indemnify DMP from and against all costs and disbursements incurred by DMP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, DMP’s contract default fee, and bank dishonour fees).
    3. Without prejudice to any other remedies DMP may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions DMP may suspend or terminate the supply of Goods to the Customer. DMP will not be liable to the Customer for any loss or damage the Customer suffers because DMP has exercised its rights under this clause.
    4. Without prejudice to DMP’s other remedies at law DMP shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to DMP shall, whether or not due for payment, become immediately payable if:
      (a) any money payable to DMP becomes overdue, or in DMP’s opinion the Customer will be unable to make a payment when it falls due;
      (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.
  15. Cancellation
    1. DMP 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 Customer. On giving such notice DMP shall repay to the Customer any money paid by the Customer for the Goods. DMP shall not be liable for any loss or damage whatsoever arising from such cancellation.
    2. In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by DMP as a direct result of the cancellation (including, but not limited to, any loss of profits).
    3. Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
  16. Privacy Act 1988
    1. The Customer agrees for DMP to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by DMP.
    2. The Customer agrees that DMP may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
      (a) to assess an application by the 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 creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.
    3. The Customer consents to DMP being given a consumer credit report to collect overdue payment on commercial credit.
    4. The Customer agrees that personal credit information provided may be used and retained by DMP for the following purposes (and for other agreed purposes or required by):
      (a) the provision of Goods; and/or
      (b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
      (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
      (d) enabling the collection of amounts outstanding in relation to the Goods.
    5. DMP may give information about the Customer to a CRB for the following purposes:
      (a) to obtain a consumer credit report;
      (b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
    6. The information given to the CRB may include:
      (a) personal information as outlined in 16.1 above;
      (b) name of the credit provider and that DMP is a current credit provider to the Customer;
      (c) whether the credit provider is a licensee;
      (d) type of consumer credit;
      (e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
      (f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and DMP has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
      (g) information that, in the opinion of DMP, the Customer has committed a serious credit infringement;
      (h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    7. The Customer shall have the right to request (by e-mail) from DMP:
      (a) a copy of the information about the Customer retained by DMP and the right to request that DMP correct any incorrect information; and
      (b) that DMP does not disclose any personal information about the Customer for the purpose of direct marketing.
    8. DMP will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
    9. The Customer can make a privacy complaint by contacting DMP via e-mail. DMP will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
  17. General
    1. The failure by DMP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect DMP’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.
    2. These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which DMP has its principal place of business and are subject to the jurisdiction of the courts of Murwillumbah in New South Wales.
    3. Subject to clause 12, DMP 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 DMP of these terms and conditions (alternatively DMP’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
    4. 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 DMP nor to withhold payment of any invoice because part of that invoice is in dispute.
    5. DMP may license or sub-contract all or any part of its rights and obligations without the Customer’s consent
    6. The Customer agrees that DMP may amend these terms and conditions at any time. If DMP makes a change to these terms and conditions, then that change will take effect from the date on which DMP notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for DMP to provide Goods to the Customer.
    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.
    8. The Customer 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.
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