Terms and Conditions of Trade
Your use of the website is conditional upon your acceptance and compliance with the terms, conditions, notices and disclaimers set out below ('Terms and Conditions'). You should read the Terms and Conditions. Your use of the website constitutes your agreement to the Terms and Conditions.
|1.||Ordering and Delivery|
|Any order that you place through this website is an offer by you to purchase the product, which becomes binding once Entanglements accepts that order by written notice to you to such effect. Thereupon you will be bound by the Terms and Conditions in this website in relation to the purchase of products that you order.|
|1.1||The Ordering Process. Ordering through the Entanglements site is easy. Just follow the simple steps outlined here:|
|1.2||Goods currently not in stock. Placing an order does not guarantee the availability of goods ordered. In the event an item is out of stock, we will advise you accordingly and of the anticipated delivery time for such item.|
|1.3||Delivery. Delivery of products will be, for overseas destinations, FOB (Incoterms 2010) with designated delivery to the address specified in your order and, for Australian deliveries, Ex-Works (Incoterms 2010) our factory premises. We are committed to deliver to you ordered products on the scheduled delivery date. The risk of loss and/or damage to the products is transferred from us to you at the point of delivery and title to the products remains with is until all monies are paid in full.|
|2.||Price and Payment|
|2.1||Prices. All prices quoted are inclusive of GST unless specified otherwise. All prices are exclusive of duties or other liabilities imposed by any governmental agency, including without limitation, any customs duty. We need to reserve the right to increase these prices and expect to be able to give you 30 days' notice of any such price increase.|
|2.2||Payment Terms. Payments for all orders are to be made fully in advance. Entanglements offers a number of payment options. These options are online payment by credit card, and a bank deposit through your bank or via electronic funds transfer.|
|3.||Customer's intellectual property warranty and indemnity|
You warrant that any drawings, sketches or photographs (Works) which you provide to us are your own original works and that you own a copyright in them or are otherwise licensed to provide them to us to use them as you have requested. You warrant that nothing in the Works contains material subject to third party intellectual property rights, unless you have permission from the owner and are legally entitled to grant us those licensed rights, and that our use of those Works will not infringe any third party intellectual property rights.
You agree to fully indemnify and hold harmless us and our directors, employees and agents against all expenses, losses, claims, damages and costs (on a full indemnity basis) incurred by or awarded against us arising directly or indirectly out of any breach of these Terms and Conditions or howsoever arising, including any damage to a third party (including the infringement of a third party's rights caused by your provision to us of Works) or to property.
|4.||Warranty and Liability|
Australian Consumer Law
(i) in the case of goods, the repair or replacement of those goods, the supply of equivalent goods, the payment of the cost of repairing or replacing the goods or acquiring equivalent goods; and
Limitation of liability
Subject to Section 4.1:
(a) the only guarantee, warranty or condition provided in relation to any products or services is any express warranty that we may provide; and
You acknowledge and accept that continued exposure of the product will continue the rusting process, and Entanglements therefore disclaims and excludes any and all liability for any claim, loss or damages that may arise as a consequence of, or caused by, rust development, including any loss or damage to other property caused by rust developing in or on the product. You should refer to our Care Guide here.
|4.4||Use of your design
If we create a custom product pursuant to a design provided by, or on behalf of, you, we give no warranty or guarantee as to the suitability, performance or lawfulness of the design and any product created pursuant to the design. Our obligations are limited to creating the custom product in accordance with the specifications of the design.
|5||Refund and Replacement Policy|
|5.1||If your goods are damaged in transit. You must inspect your goods before signing for them as your signature may void any shipping warranty that may exist. We carry transit insurance to protect our customers' purchases but we cannot under any circumstance exchange or refund an item that you have signed for as your signature on the delivery paperwork means you are accepting the goods no matter what condition they arrive in. In order that we may address the matter with our transport supplier if need be, please take the time to check your items upon their arrival. If they are damaged, please take digital photos of the item and the damage and contact our Customer Care Team within 24 hours of the goods arriving.|
|5.2||If your goods have a manufacturer's fault/flaw or damage. If you detect a manufacturer's fault with your item during the reasonable life of the product, please notify us as soon as possible. In order to verify your claim, we may require you to provide photographic evidence of the fault or damage, so that we can assess the claim.|
|5.3||If the wrong item has been shipped to you. If a wrong item is shipped to you, contact Entanglements as soon as possible to enable us to arrange for a replacement item to be shipped to you and for collection of the incorrect item. You will not incur any additional costs in this circumstance. Your replacement item will be shipped to you as quickly as possible within the normal delivery time frame for that item.
You must not use or otherwise deal with the wrong item if you know, or ought reasonably to know, that it is the wrong item. If you do use it, you will be deemed to have accepted it as a suitable and accepted alternative or replacement to the item ordered.
|6.1||No adverse construction. These Terms and Conditions will not to be construed to the disadvantage of Entanglements because Entanglements was responsible for their preparation.|
|6.2||No waiver. A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by these Terms and Conditions does not operate as a waiver of the power or right.|
|6.3||No variation. These Terms and Conditions cannot be amended or varied except through a written instrument signed by Entanglements and the customer.|
|6.4||Governing law and jurisdiction. This Agreement is governed by and must be construed in accordance with the laws in force in Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.|
Entanglements Pty Ltd – Terms & Conditions of Trade
1.1 “Contract” means the terms and conditions contained herein, together with
any quotation, order, invoice or other document or amendments expressed
to be supplemental to this Contract.
Entanglements Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Entanglements Pty Ltd The Entanglements Trust T/A Entanglements Pty Ltd.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Entanglements Pty Ltd to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by Entanglements Pty Ltd 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).
1.5 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know- how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using Entanglements Pty Ltd website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.7 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Entanglements Pty Ltd and the Customer in accordance with clause 5 below.
1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 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.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with Entanglements Pty Ltd and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, Entanglements Pty Ltd reserves the right to refuse Delivery.
2.6 Where Entanglements Pty Ltd gives any advice, recommendation, information, assistance or service provided by Entanglements Pty Ltd in relation to Goods or Services supplied is given in good faith to the Customer, or the Customer’s agent and is based on Entanglements Pty Ltd own knowledge and experience and shall be accepted without liability on the part of Entanglements Pty Ltd. Where such advice or recommendations are not acted upon then Entanglements Pty Ltd shall require the Customer or their agent to authorise commencement of the Services in writing. Entanglements Pty Ltd shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that Entanglements Pty Ltd shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Entanglements Pty Ltd in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Entanglements Pty Ltd in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Entanglements Pty Ltd; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Customer shall give Entanglements Pty Ltd 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, change of trustees, or business practice). The Customer shall be liable for any loss incurred by Entanglements Pty Ltd as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At Entanglements Pty Ltd sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by Entanglements Pty Ltd to the
(b) Entanglements Pty Ltd quoted price (subject to clause 5.2) which will be
valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 Entanglements Pty Ltd reserves the right to change the Price:
(a) if a variation to Entanglements Pty Ltd quotation is requested; or
(b) if unforeseen circumstances, unidentifiable difficulties or delays which are Entanglements Pty Ltd control occur (including, but not limited to, change of design, change in the scope of Services required etc.)
which are only discovered on commencement of the Services; or
(c) in the event of increases to Entanglements Pty Ltd in the cost of Goods and/or Services (including but not limited to variations in foreign currency rates of exchange, labour costs, freight costs, insurance costs etc.).
5.3 Variations will be charged for on the basis of Entanglements Pty Ltd quotation, and will be detailed in writing, and shown as variations on Entanglements Pty Ltd invoice. The Customer shall be required to respond to any variation submitted by Entanglements Pty Ltd within ten (10) working days. Failure to do so will entitle Entanglements Pty Ltd to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.4 At Entanglements Pty Ltd sole discretion, a non-refundable deposit may be required.
5.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Entanglements Pty Ltd, which may be:
(a) on or before Delivery of the Goods;
(b) by way of instalments/progress payments in accordance with Entanglements Pty Ltd payment schedule;
(c) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Entanglements Pty Ltd.
5.6 Payment may be made by electronic/on-line banking, credit card, excluding AMEX, (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and Entanglements Pty Ltd.
5.7 Entanglements Pty Ltd may in its discretion allocate any payment received from the Customer towards any invoice that Entanglements Pty Ltd determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Entanglements Pty Ltd may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Entanglements Pty Ltd, payment will be deemed to be allocated in such manner as preserves the maximum value of Entanglements Pty Ltd Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.8 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 Entanglements Pty Ltd nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay Entanglements Pty Ltd an amount equal to any GST Entanglements Pty Ltd must pay for any supply by Entanglements Pty Ltd 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
6.1 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 Entanglements Pty Ltd address; or
(b Entanglements Pty Ltd (or Entanglements Pty Ltd nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
6.2 At Entanglements Pty Ltd sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
6.3 Entanglements Pty Ltd 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.
6.4 Any time specified Entanglements Pty Ltd for Delivery of the Goods is an estimate only. The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. Entanglements Pty Ltd will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. In the event that the Customer is unable to take Delivery of the Goods as arranged then Entanglements Pty Ltd shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.1 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.
7.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, Entanglements Pty Ltd is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Entanglements Pty Ltd is sufficient evidence of Entanglements Pty Ltd rights to receive the insurance proceeds without the need for any person dealing with Entanglements Pty Ltd to make further enquiries.
7.3 Entanglements Pty Ltd 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, Entanglements Pty Ltd accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
7.4 Detailed drawings of any services that will be embedded in the Goods are to be provided to Entanglements Pty Ltd prior to commencement of any Services. Whilst all due care will be taken no liability will be accepted by Entanglements Pty Ltd for damage to the services or any other element embedded in the Goods.
7.5 Whilst Entanglements Pty Ltd will make every effort to accomplish an acceptable finish, the Customer acknowledges that:
(a) any surfaces that run up against each other or are in close proximity
leading to crevices will hinder the application of the powder and Entanglements Pty Ltd cannot guarantee full coverage;
(b) sharp edges are difficult to cover to the full thickness of coating and accepts that lack of full coverage may occur; and
(c) porosity in a weld or welding spatter or existing imperfections in the steel can affect the quality of coating finish and coverage. 7.6 The Customer acknowledges and agrees that:
(b) where Goods are stored off site for extended periods of time as a result of any action/inaction by the Customer; and
(c) resulting from incorrect use and/or installation of the Goods by the Customer or any other third party.
7.8 The Customer acknowledges and accepts that:
(a) on Customer supplied items to be powder coated, that any seams that are not fully sealed or enclosed in the item will be not guaranteed as
moisture may seep into the gaps and thereby prone to rust;
(b) 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 have deemed to be a
defect in the Goods; and (c) Goods supplied may:
(i) exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time;
(ii) expand, contract or distort as a result of exposure to heat, cold, weather;
(iii) mark or stain if exposed to certain substances; and
(iv) be damaged or disfigured by impact or scratching.
7.9 Entanglements Pty Ltd 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.
8.1 Entanglements Pty Ltd and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Entanglements Pty Ltd all amounts owing to Entanglements Pty Ltd; and
(b) the Customer has met all of its other obligations to Entanglements Pty Ltd.
8.2 Receipt by Entanglements Pty Ltd 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.
8.3 It is further agreed that, until ownership of the Goods passes to the
Customer in accordance with clause 8.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to
Entanglements Pty Ltd on request;
(b) the Customer holds the benefit of the Customer’s insurance of the
Goods on trust for Entanglements Pty Ltd and must pay to Entanglements Pty Ltd 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 Entanglements Pty Ltd and must pay or deliver the proceeds to Entanglements Pty Ltd 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 Entanglements Pty Ltd and must sell, dispose of or return the resulting product to Entanglements Pty Ltd as it so directs;
(e) the Customer irrevocably authorises Entanglements Pty Ltd to enter any premises where Entanglements Pty Ltd believes the Goods are kept and recover possession of the Goods;
(f) Entanglements Pty Ltd 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 Entanglements Pty Ltd;
(h) Entanglements Pty Ltd may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 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 Entanglements Pty Ltd for Services – that have previously been supplied and that will be supplied in the future by Entanglements Pty Ltd to the Customer.
9.3 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 Entanglements Pty Ltd may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities
(ii) register any other document required to be registered by the PPSA;
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or
(b) indemnify, and upon demand reimburse, Entanglements Pty Ltd 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 Entanglements Pty Ltd;
(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 Entanglements Pty Ltd;
(e) immediately advise Entanglements Pty Ltd 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.
9.4 Entanglements Pty Ltd 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.
9.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by Entanglements Pty Ltd, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Customer must unconditionally ratify any actions taken by Entanglements Pty Ltd under clauses 9.3 to 9.5.
9.9 Subject to any express provisions to the contrary (including those contained in this clause 9), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Entanglements Pty Ltd – Terms & Conditions of Trade
where Entanglements Pty Ltd have performed temporary repairs or welding of joins or metal tears, that:
(i) Entanglements Pty Ltd offers no guarantee against the reoccurrence of the initial fault, or any further damage caused;
(ii) Entanglements Pty Ltd will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair; (iii) Entanglements Pty Ltd shall not be held liable for any losses or damages resulting from the remedial welding put under excessive or inappropriate strain; and it is their responsibility to organise and be liable for all costs associated with protecting the Goods and shall take all reasonable precautions to protect against destruction or damage howsoever caused. In the event that the Goods are destroyed or damaged, then the cost of repair or replacement shall be borne by the Customer.
7.7 Entanglements Pty Ltd shall not be liable for any defect, deterioration and/or damage to the Goods:
(a) if the Customer does not follow Entanglements Pty Ltd recommendations;
Please note that a larger print version of these terms and conditions is available from
Entanglements Pty Ltd – Terms & Conditions of Trade
10. Security and Charge
10.1 In consideration of Entanglements Pty Ltd 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).
10.2 The Customer indemnifies Entanglements Pty Ltd from and against all Entanglements Pty Ltd costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Entanglements Pty Ltd rights under this clause.
10.3 The Customer irrevocably appoints Entanglements Pty Ltd and each director of Entanglements Pty Ltd as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.
11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
11.1 The Customer must inspect the Goods on Delivery and must within forty- eight (48) hours of Delivery notify Entanglements Pty Ltd 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 Entanglements Pty Ltd to inspect the Goods.
11.2 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).
11.3 Entanglements Pty Ltd acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Entanglements Pty Ltd makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Entanglements Pty Ltd liability in respect of these warranties is limited to the fullest extent permitted by law.
11.5 If the Customer is a consumer within the meaning of the CCA, Entanglements Pty Ltd liability is limited to the extent permitted by section 64A of Schedule 2.
11.6 If Entanglements Pty Ltd is required to replace the Goods under this clause or the CCA, but is unable to do so, Entanglements Pty Ltd may refund any money the Customer has paid for the Goods.
11.7 If the Customer is not a consumer within the meaning of the CCA, Entanglements Pty Ltd 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 Entanglements Pty Ltd at Entanglements Pty Ltd sole discretion;
(b) limited to any warranty to which Entanglements Pty Ltd is entitled, if Entanglements Pty Ltd did not manufacture the Goods;
(c) otherwise negated absolutely.
11.8 Subject to this clause 11, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 11.1; and
(b) Entanglements Pty Ltd 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.
11.9 Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, Entanglements Pty Ltd 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
Entanglements Pty Ltd;
(e) fair wear and tear, any accident, or act of God.
11.10 Notwithstanding anything contained in this clause if Entanglements Pty Ltd is required by a law to accept a return then Entanglements Pty Ltd will only accept a return on the conditions imposed by that law.
11.11 Subject to clause 11.1, customised, or non-stocklist items or Goods made or ordered to the Customer’s specifications are not acceptable for credit or return.
12. Intellectual Property
12.1 Where Entanglements Pty Ltd has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Entanglements Pty Ltd. Under no circumstances may such designs, drawings and documents be used without the express written approval of Entanglements Pty Ltd.
12.2 The Customer warrants that all designs, specifications or instructions given to Entanglements Pty Ltd Co will not cause Entanglements Pty Ltd to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Entanglements Pty Ltd against any action taken by a third party against Entanglements Pty Ltd in respect of any such infringement.
12.3 The Customer agrees that Entanglements Pty Ltd may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Entanglements Pty Ltd has created for the Customer.
13. Default and Consequences of Default
13.1 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 Entanglements Pty Ltd sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Customer owes Entanglements Pty Ltd any money the Customer shall indemnify Entanglements Pty Ltd from and against all costs and disbursements incurred by Entanglements Pty Ltd in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis Entanglements Pty Ltd contract default fee, and bank dishonour fees).
13.3 Further to any other rights or remedies Entanglements Pty Ltd may have under this Contract, if a Customer has made payment to Entanglements Pty Ltd, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Entanglements Pty Ltd under this clause 13 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
13.4 Without prejudice to Entanglements Pty Ltd other remedies at law Entanglements Pty Ltd shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Entanglements Pty Ltd, whether or not due for payment, become immediately payable if:
(a) any money payable to Entanglements Pty Ltd becomes overdue, or in Entanglements Pty Ltd opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by Entanglements Pty Ltd;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14.1 Without prejudice to any other remedies Entanglements Pty Ltd may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Entanglements Pty Ltd may suspend or terminate the supply of Goods to the Customer. Entanglements Pty Ltd will not be liable to the Customer for any loss or damage the Customer suffers because Entanglements Pty Ltd has exercised its rights under this clause.
14.2 Entanglements Pty Ltd 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 Entanglements Pty Ltd shall repay to the Customer any money paid by the Customer for the Goods. Entanglements Pty Ltd shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.3 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 Entanglements Pty Ltd as a direct result of the cancellation (including, but not limited to, any loss of profits).
14.4 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.
15.1 All emails, documents, images or other recorded information held or used by Entanglements Pty Ltd is Personal Information, as defined and referred to in clause 15.3, and therefore considered Confidential Information. Entanglements Pty Ltd acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Entanglements Pty Ltd acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by Entanglements Pty Ltd that may result in serious harm to the Customer, Entanglements Pty Ltd will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
15.2 Notwithstanding clause 15.1, privacy limitations will extend to Entanglements Pty Ltd in respect of Cookies where the Customer utilises Entanglements Pty Ltd website to make enquiries Entanglements Pty Ltd agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Entanglements Pty Ltd when Entanglements Pty Ltd sends
15.3 The Customer agrees that Entanglements Pty Ltd 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 (2) years.
15.4 The Customer consents to Entanglements Pty Ltd being given a consumer credit report to collect overdue payment on commercial credit.
15.5 The Customer agrees that personal credit information provided may be used and retained by Entanglements Pty Ltd 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.
15.6 Entanglements Pty Ltd 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.
15.7 The information given to the CRB may include:
(a) Personal Information as outlined in 15.3 above;
(b) name of the credit provider and that Entanglements Pty Ltd 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 Entanglements Pty Ltd has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of Entanglements Pty Ltd, 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).
15.8 The Customer shall have the right to request (by e-mail) from Entanglements Pty Ltd:
(a) a copy of the Personal Information about the Customer retained by Entanglements Pty Ltd and the right to request that Entanglements Pty Ltd correct any incorrect Personal Information; and
(b) that Entanglements Pty Ltd does not disclose any Personal Information about the Customer for the purpose of direct marketing.
15.9 Entanglements Pty Ltd 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 Contract or is required to be maintained and/or stored in accordance with the law.
15.10 The Customer can make a privacy complaint by contacting Entanglements Pty Ltd via e-mail. Entanglements Pty Ltd 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.
16. Unpaid Seller’s Rights
16.1 Where the Customer has left any item with Entanglements Pty Ltd for repair, modification, exchange or for Entanglements Pty Ltd to perform any other service in relation to the item and Entanglements Pty Ltd has not received or been tendered the whole of any monies owing to it by the Customer, Entanglements Pty Ltd shall have, until all monies owing to Entanglements Pty Ltd 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.
16.2 The lien of Entanglements Pty Ltd shall continue despite the commencement of proceedings, or judgment for any monies owing to Entanglements Pty Ltd having been obtained against the Customer.
17. Service of Notices
17.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract; (c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
17.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
18.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Entanglements Pty Ltd may have notice of the Trust, the Customer covenants with Entanglements Pty Ltd as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not without consent in writing of Entanglements Pty Ltd (Entanglements Pty Ltd will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.
19.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’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.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which Entanglements Pty Ltd has its principal place of business, and are subject to the jurisdiction of the courts in Victoria.
19.3 Subject to clause 11, Entanglements Pty Ltd 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 Entanglements Pty Ltd of these terms and conditions (alternatively Entanglements Pty Ltd liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
19.4 Entanglements Pty Ltd may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
19.5 The Customer cannot licence or assign without the written approval of AG
Holding & Co.
19.6 Entanglements Pty Ltd may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Entanglements Pty Ltd sub- contractors without the authority of Entanglements Pty Ltd.
19.7 The Customer agrees that Entanglements Pty Ltd may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Entanglements Pty Ltd to provide Goods to the Customer.
19.8 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.
19.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.