TERMS & CONDITIONS OF
SALE & CREDIT

1.  DEFINITIONS
In these Terms and Conditions, unless the context otherwise requires:
1.1  “Thomas Gooden” or “the Company” means Thomas Gooden Foundry Services Pty Limited ABN 87 003 383 051, its successors and assigns, or any person acting on behalf of and with the authority of Thomas Gooden Foundry Services Pty Limited.
1.2  “Customer” means the person, entity or any person acting on behalf of and with the authority of the Customer requesting Thomas Gooden to provide the Goods as specified in any quotation, order, invoice or other documentation, and: (a) if there is more than one Customer, is a reference to each Customer jointly and severally; (b) if the Customer is a partnership, it shall bind each partner jointly and severally; (c) if the Customer is part of a Trust, shall be bound in their capacity as trustee; and (d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.3  “Goods” means all goods or products supplied by Thomas Gooden to the Customer at the Customer’s request from time to time, including brassware, fittings, valves, gas bayonets and all associated products as described on any invoice, quotation, order or other documentation provided by Thomas Gooden.
1.4  “Price” means the price payable (plus any GST where applicable) for the Goods as agreed between Thomas Gooden and the Customer in accordance with clause 7 of these Terms and Conditions.
1.5  “GST” means Goods and Services Tax as defined within the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.6  “Contract” means these Terms and Conditions together with any quotation, order, invoice or other document or amendment expressed to be supplemental to these Terms and Conditions.
1.7  “WaterMark” means the WaterMark Certification Scheme administered under the Plumbing Code of Australia and applicable AS/NZS standards.
1.8  “Australian Standards” means the applicable Australian and joint Australian/New Zealand Standards (AS/NZS) to which any Goods supplied by Thomas Gooden are certified or which apply to the installation or use of such Goods.
1.9  “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 and pricing details.
1.10  “PPSA” means the Personal Property Securities Act 2009 (Cth) and includes all regulations and amendments made under that Act.

2.  ACCEPTANCE
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 terms provided by the Customer, the terms of this Contract shall prevail.
2.3  Any amendment to these Terms and Conditions may only be made in writing with 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 Thomas Gooden and it has been approved with a credit limit established for the account.
2.5  In the event that a supply request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, Thomas Gooden reserves the right to refuse delivery.
2.6  All literature, samples, specifications and other material submitted with any quotation are illustrative only and constitute a general description of Goods in accordance with industry standards. Any descriptions, dimensions or specifications contained in catalogues and advertising material, while as accurate as possible, may not be identical to Goods as supplied. Thomas Gooden will not accept liability for the quality of Goods which comply with accepted industry standards.
2.7  The Customer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, Thomas Gooden reserves the right to vary the Price with alternative Goods, subject to prior confirmation and agreement of both parties.
2.8  Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with the Electronic Transactions Act 2000 (NSW) and any applicable Commonwealth electronic transactions legislation.

3.  ERRORS AND OMISSIONS
3.1  The Customer acknowledges and accepts that Thomas Gooden shall, without prejudice, accept no liability in respect of any alleged or actual error or omission: (a) resulting from an inadvertent mistake made by Thomas Gooden in the formation or administration of this Contract; or (b) contained in or omitted from any literature, catalogue, price list or other material (whether in hard copy or electronic form) supplied by Thomas Gooden in respect of the Goods.
3.2  In the event such an error or omission occurs and is not attributable to the negligence or wilful misconduct of Thomas Gooden, 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 Thomas Gooden not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any other change in the Customer’s details (including but not limited to changes in the Customer’s name, address, contact details, change of trustees or business practice). The Customer shall be liable for any loss incurred by Thomas Gooden as a result of the Customer’s failure to comply with this clause.

5.  MINIMUM ORDERS AND FREIGHT
5.1  Subject to any minimum order value or minimum invoice value which Thomas Gooden may in its discretion impose from time to time, and unless otherwise agreed in writing with the Customer, all Goods shall be delivered free into store within Thomas Gooden’s metropolitan distribution areas and free on transport for all other destinations within Australia.
5.2  Minimum order values applicable to each Customer’s account shall be communicated to the Customer at the time of account establishment or as otherwise notified in writing by Thomas Gooden. Thomas Gooden reserves the right to vary minimum order requirements for individual accounts at any time upon written notice to the Customer.
5.3  Orders that do not meet the applicable minimum order value may, at Thomas Gooden’s sole discretion, be subject to additional freight or handling charges, which will be communicated to the Customer prior to despatch.

6.  SPECIAL AND CUSTOM ITEMS
6.1  A “Special Item” or “Custom Item” means any product that Thomas Gooden is required to specially manufacture, source or have manufactured to the Customer’s specifications, or any product not ordinarily held by Thomas Gooden as standard stock.
6.2  The Customer warrants to Thomas Gooden that all drawings, specifications and design information provided for the supply, manufacture or sourcing of Special Items are accurate and correct in all respects and do not infringe the intellectual property rights of any third party, including any copyright, patent, registered design or trademark.
6.3  Unless the Customer has agreed to accept over-runs or under-runs, Thomas Gooden will use its best endeavours to supply the exact quantity ordered. In the case of goods classified by Thomas Gooden as made-to-order, the Customer shall be bound to accept over-runs or under-runs not exceeding ten per cent (10%) of the quantity ordered, and the Price shall be adjusted accordingly.
6.4  Cancellation or variation of orders for Special Items will not be accepted once production has commenced or an order has been placed with a third party supplier. In the event of cancellation after production has commenced, the Customer shall be liable for all costs incurred by Thomas Gooden up to the date of cancellation including but not limited to materials, labour, freight and third party supplier charges.
6.5  Special Items and goods made to the Customer’s specifications are not acceptable for credit return under any circumstances, except as required by law.

7.  PRICE AND PAYMENT
7.1  At Thomas Gooden’s sole discretion, the Price shall be either:
(a)  as indicated on any invoice provided by Thomas Gooden to the Customer; or
(b)  the Price as at the date of delivery according to Thomas Gooden’s current price list; or
(c)  Thomas Gooden’s quoted Price, which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
7.2  Thomas Gooden reserves the right to change the Price if a variation to its quotation is requested, or if any variation arises that is beyond Thomas Gooden’s control, including but not limited to: increases in the cost of materials; variations in foreign currency exchange rates; increases in international freight or insurance charges; or the unavailability of Goods from Thomas Gooden’s suppliers. In such cases, Thomas Gooden will notify the Customer in writing of the variation and the Customer shall respond within ten (10) business days. Failure to respond shall entitle Thomas Gooden to add the variation cost to the Price.
7.3  Time for payment is of the essence. The Price will be payable by the Customer on the date determined by Thomas Gooden, which may be:
(a)  thirty (30) days from the date of the invoice; or
(b)  the date specified on any invoice as being the date for payment; or
(c)  failing any notice to the contrary, thirty (30) days following the date of any invoice given to the Customer by Thomas Gooden.
7.4  Payment may be made by bank cheque, electronic funds transfer or direct credit. All payments must be made in Australian dollars.
7.5  Unless otherwise stated, the Price does not include GST. In addition to the Price, the Customer must pay to Thomas Gooden an amount equal to any GST payable by Thomas Gooden for any supply under this Contract. The Customer must pay GST without deduction or set-off at the same time and on the same basis as the Customer pays the Price. The Customer must also pay any other taxes and duties applicable in addition to the Price, except where expressly included in the Price.
7.6  Thomas Gooden may in its discretion allocate any payment received from the Customer towards any invoice that Thomas Gooden determines and may do so at the time of receipt or at any time afterwards. In the absence of any payment allocation by Thomas Gooden, payment will be deemed allocated in such manner as preserves the maximum value of Thomas Gooden’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
7.7  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 Thomas Gooden, nor to withhold payment of any invoice because part of that invoice is in dispute.
7.8  The Supplier reserves the right to charge interest on all overdue accounts at a rate of ten per cent (10%) per annum. Such interest shall be calculated monthly on the balance outstanding from the due date until the date of full payment, both before and after any judgment.
7.9  Rebates paid by Thomas Gooden or deducted at time of payment are at the discretion of Thomas Gooden and may not be honoured if the account is in arrears or not within payment terms.

8.  DELIVERY
8.1  Delivery of the Goods (“Delivery”) is taken to occur at the time that: (a) the Customer or the Customer’s nominated carrier takes possession of the Goods at Thomas Gooden’s premises; or (b) Thomas Gooden (or Thomas Gooden’s nominated carrier) delivers the Goods to the Customer’s nominated address, whether or not the Customer is present at that address.
8.2  Thomas Gooden may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid for in accordance with these Terms and Conditions. Failure by Thomas Gooden to deliver any instalment shall not entitle the Customer to repudiate the Contract in whole or in part.
8.3  The Customer authorises Thomas Gooden to deliver Goods to the place nominated by the Customer and to leave Goods at such place whether or not any person is present to accept delivery. Thomas Gooden shall not be liable for any loss incurred by the Customer after delivery to the nominated place has occurred.
8.4  If the Customer requests Thomas Gooden to leave Goods outside Thomas Gooden’s premises for collection or to deliver Goods to an unattended location, such Goods shall be left at the Customer’s sole risk.
8.5  Any time specified by Thomas Gooden for Delivery is an estimate only. Time will not be of the essence in the supply of Goods. Thomas Gooden will use its best endeavours to comply with any Delivery date or period stipulated but shall not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. In the event the Customer is unable to take Delivery as arranged, Thomas Gooden shall be entitled to charge a reasonable fee for redelivery and/or storage.
8.6  Backorders shall be retained by Thomas Gooden unless otherwise stated, and Goods subject to a backorder shall be despatched as soon as they are available. Each backorder shall be deemed to be supplied under the same Contract and the Customer shall not be entitled to repudiate the Contract due to non-delivery of a backorder.

9.  RISK
9.1  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.
9.2  If any Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, Thomas Gooden is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms and Conditions by Thomas Gooden is sufficient evidence of Thomas Gooden’s rights to receive the insurance proceeds without the need for any further enquiries.
9.3  If the Customer requests Thomas Gooden to leave Goods outside Thomas Gooden’s premises for collection or to deliver Goods to an unattended location, such Goods shall be left at the Customer’s sole risk and the Customer shall be responsible for ensuring the Goods are adequately insured.

10.  TITLE (RETENTION OF TITLE)
10.1  Thomas Gooden and the Customer agree that ownership of the Goods shall not pass to the Customer until: (a) the Customer has paid Thomas Gooden all amounts owing for the particular Goods; and (b) the Customer has met all other obligations to Thomas Gooden in respect of all contracts between Thomas Gooden and the Customer.
10.2  Receipt by Thomas Gooden 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 Thomas Gooden’s ownership and rights in respect of the Goods shall continue.
10.3  Until ownership of the Goods passes to the Customer in accordance with clause 10.1:
(a)  the Customer is only a bailee of the Goods and must return the Goods to Thomas Gooden on request;
(b)  where practicable, the Goods shall be kept separate and identifiable;
(c)  the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Thomas Gooden and must pay to Thomas Gooden the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(d)  the Customer must not sell, dispose of 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 of or parts with possession of the Goods, the Customer must hold the proceeds of any such act on trust for Thomas Gooden and must pay or deliver the proceeds to Thomas Gooden on demand;
(e)  the Customer must 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 Thomas Gooden and must sell, dispose of or return the resulting product to Thomas Gooden as directed;
(f)  the Customer irrevocably authorises Thomas Gooden to enter any premises where Thomas Gooden believes the Goods are kept and to recover possession of the Goods;
(g)  Thomas Gooden may recover possession of any Goods in transit whether or not Delivery has occurred;
(h)  the Customer shall not charge or grant an encumbrance over the Goods nor grant or otherwise give any interest in the Goods while they remain the property of Thomas Gooden;
(i)  Thomas Gooden may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

11.  PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)
11.1  In this clause, financing statement, financing change statement, security agreement and security interest have the meanings given to them by the PPSA.
11.2  Upon assenting to these Terms and Conditions, the Customer acknowledges and agrees that these Terms and Conditions constitute a security agreement for the purposes of the PPSA and create a security interest (including a Purchase Money Security Interest) in: (a) all Goods previously supplied by Thomas Gooden to the Customer (if any); (b) all Goods that will be supplied in the future by Thomas Gooden to the Customer; and (c) all proceeds of the sale of such Goods.
11.3  The Customer undertakes to: (a) promptly sign any further documents and provide any further information which Thomas Gooden may reasonably require to register a financing statement or financing change statement, or to correct any defect in any such statement; (b) indemnify Thomas Gooden for all expenses incurred in registering a financing statement on the Personal Property Securities Register or releasing any Goods charged thereby; (c) not register a financing change statement without the prior written consent of Thomas Gooden; and (d) not register, or permit to be registered, a financing statement in relation to the Goods in favour of a third party without the prior written consent of Thomas Gooden.
11.4  Thomas Gooden 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.
11.5  The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6  The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7  Unless otherwise agreed to in writing by Thomas Gooden, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8  The Customer must unconditionally ratify any actions taken by Thomas Gooden under clauses 11.3 to 11.7. Subject to any express provisions to the contrary, nothing in these Terms and Conditions is intended to contract out of any applicable provisions of the PPSA.

12.  SECURITY AND CHARGE
12.1  In consideration of Thomas Gooden 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 the payment of all moneys owing.
12.2  Should Thomas Gooden elect to proceed in accordance with this clause, Thomas Gooden shall be entitled to lodge, where appropriate, a caveat over any property of the Customer, which shall be withdrawn once all payments and other obligations have been met.
12.3  The Customer indemnifies Thomas Gooden from and against all costs and disbursements (including legal costs on a solicitor and own client basis) incurred in exercising Thomas Gooden’s rights under this clause.
12.4  The Customer irrevocably appoints Thomas Gooden and each director of Thomas Gooden as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12, including signing any document on the Customer’s behalf.

13.  FITNESS FOR PURPOSE
13.1  To the full extent permitted by law:
(a)  the Customer acknowledges that it relies on its own skill and judgement in relation to the selection and application of the Goods supplied by Thomas Gooden; and
(b)  Thomas Gooden shall not be responsible for any unsuitability of the Goods for any particular purpose, irrespective of any knowledge Thomas Gooden may possess as to the purpose for which the Goods were required by the Customer.
13.2  Any advice, recommendation, information or assistance provided by Thomas Gooden or its employees or agents in relation to the Goods, including advice as to installation, application or suitability, is provided without liability on the part of Thomas Gooden and it is the Customer’s responsibility to satisfy itself as to the suitability of the Goods for the Customer’s intended purpose.

14.  APPLICATION OF GOODS
14.1  The Customer acknowledges and agrees that Thomas Gooden shall not accept liability or responsibility for the misuse or inappropriate application of the Goods, including where such misuse or inappropriate application: (a) contravenes any applicable Commonwealth, State or Territory law or regulation; (b) may or does cause injury or death to any person; or (c) may or does cause damage to public or private property.
14.2  The Customer warrants that the Goods will be used only for the purpose for which they are designed and certified, and in accordance with any applicable Australian Standards, installation requirements and Thomas Gooden’s product specifications.

15.  DEFECTS, INSPECTION AND RETURNS
15.1  The Customer must inspect the Goods on Delivery and must, within seven (7) days of Delivery, notify Thomas Gooden in writing (by email or other written communication) of any evident defect or damage, shortage in quantity, or failure to comply with the description or quotation. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after such defect becomes evident. Upon such notification the Customer must allow Thomas Gooden to inspect the Goods.
15.2  Any claim or return of Goods for credit will not be recognised unless the Customer quotes the relevant Thomas Gooden invoice number. Where invoice numbers are not provided, Thomas Gooden reserves the right to charge an additional twenty dollar ($20.00) service fee per invoice for the administrative cost of identifying the relevant transaction.
15.3  All account queries and credit claims shall be directed to Thomas Gooden’s office in writing as soon as practicable after receipt of the invoice. Thomas Gooden reserves the right to disallow any claim for credit made later than sixty (60) days after the date of issue of the invoice.
15.4  The Customer shall be responsible for supplying full particulars of any claim for credit for Goods invoiced but not received, Goods damaged prior to delivery, or Goods which are not of the description ordered, within seven (7) days of Delivery. No liability for freight charges incurred in the return of such Goods shall be accepted by Thomas Gooden unless the return is by a mode of transport specifically authorised by Thomas Gooden.
15.5  Where Thomas Gooden accepts a return, Goods shall not be returned unless: (a) Thomas Gooden has agreed in writing (email or written notice) that the Goods are defective or that a return is otherwise warranted; (b) the Goods are returned within a reasonable time at the Customer’s cost; and (c) the Goods are returned in as close a condition to that in which they were delivered as is possible, in appropriate packaging and by a carrier authorised by Thomas Gooden.
15.6  Goods shall not be returned for credit in respect of surplus stock except with the prior written approval of Thomas Gooden and on the following conditions: (a) the claim is made within ninety (90) days of delivery; (b) the Goods are in a resaleable condition; and (c) the Customer pays a restocking and handling fee of twenty per cent (20%) of the invoice value of the returned Goods. Until Thomas Gooden acknowledges receipt of returned Goods, such Goods remain at the sole risk of the Customer.
15.7  Claims for defective Goods shall only be recognised where: (a) the Goods have failed within ninety (90) days of commencement of use; (b) it can be established by inspection and to the satisfaction of Thomas Gooden that the defect is due to a fault in manufacture or materials; and (c) the Goods are returned to Thomas Gooden’s office by a mode of transport authorised by Thomas Gooden. At Thomas Gooden’s sole discretion, Thomas Gooden may replace the Goods, repair the defect, or make an allowance to the Customer by way of refund, price reduction or credit to the Customer’s account.
15.8  Thomas Gooden 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 the 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, guidelines or applicable Australian Standards provided or applicable to the Goods; (e) the Customer modifying or repairing the Goods without Thomas Gooden’s prior written consent; or (f) fair wear and tear, accident, act of God or force majeure event.
15.9  In the case of any claim for Goods invoiced but not received which is subsequently disallowed by Thomas Gooden upon evidence sufficient to prove delivery of the Goods, Thomas Gooden shall have the right to charge for all costs incurred by it in producing such evidence, which shall be no less than thirty dollars ($30.00).
15.10  Notwithstanding anything contained in this clause, if Thomas Gooden is required by law to accept a return, Thomas Gooden will only accept a return on the conditions imposed by that law.

16.  WARRANTY
The full warranty terms applicable to Thomas Gooden products are set out in the separate Thomas Gooden Foundry Services Warranty Against Defects document, which forms part of Thomas Gooden’s suite of customer documents and is to be read in conjunction with these Terms and Conditions. The key provisions are summarised below.
16.1  Where Thomas Gooden is the manufacturer of any Goods, Thomas Gooden warrants those Goods to be free from defects in materials and workmanship for a period of twelve (12) months from the date of purchase, subject to the terms, conditions and exclusions set out in the Thomas Gooden Foundry Services Warranty Against Defects.
16.2  Where Thomas Gooden is not the manufacturer of any Goods, those Goods are sold subject to the relevant manufacturer’s warranty terms and conditions. Thomas Gooden will, where possible, pass through the benefit of any manufacturer’s warranty to the Customer. Details of applicable manufacturer warranty periods are available from Thomas Gooden on request.
16.3  Where Thomas Gooden is not the manufacturer, Thomas Gooden shall not be bound by or responsible for any term, condition, representation or warranty other than that given by the manufacturer of the Goods, or as otherwise required by law.
16.4  Under applicable State, Territory and Commonwealth law, including the Competition and Consumer Act 2010 (Cth), certain statutory implied guarantees and warranties may be implied into these Terms and Conditions. Thomas Gooden acknowledges that nothing in these Terms and Conditions purports to modify or exclude such non-excludable guarantees.
16.5  Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and to compensation for other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
16.6  For full warranty terms, conditions, exclusions and the claims process, refer to the Thomas Gooden Foundry Services Warranty Against Defects document available from Thomas Gooden on request. Warranty claims should be directed to: Thomas Gooden Foundry Services Pty Limited ABN 87 003 383 051, 12 Stonny Batter Rd, Minto NSW 2566 (PO Box 5891, Minto NSW 2566). Phone: 02 9603 9988. Email: [email protected].

17.  LIMITATION OF LIABILITY
17.1  Where it has been established to the satisfaction of Thomas Gooden that Goods are defective due to a fault in manufacture or materials, Thomas Gooden’s liability (if any) shall be limited to and discharged by one of the following remedies at Thomas Gooden’s discretion: (a) the replacement of the Goods or supply of equivalent products; (b) the repair of the defect; or (c) a refund or price reduction by way of credit to the Customer’s account. Thomas Gooden shall not be liable to the Customer for any special, consequential, direct or indirect loss suffered by the Customer or any other person.
17.2  Thomas Gooden shall not be liable under clause 17.1 if the Customer has in any way modified or repaired the Goods without Thomas Gooden’s prior written consent, or has not complied with any written or oral instructions concerning installation or operation of the Goods.
17.3  Subject to clause 15 and the Non-Excluded Guarantees, Thomas Gooden shall be under no liability whatsoever to the Customer for any indirect or consequential loss or expense, including but not limited to loss of profit, loss of opportunity or loss of use, suffered by the Customer arising out of a breach by Thomas Gooden of these Terms and Conditions. Alternatively, Thomas Gooden’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.4  No provision of these Terms and Conditions shall be construed as excluding, restricting or modifying any express or implied condition, warranty, right or remedy conferred by the Competition and Consumer Act 2010 (Cth) and similar State and Territory fair trading legislation.

18.  DEFAULT AND CONSEQUENCES OF DEFAULT
18.1  If the Customer fails to make payment by the due date, Thomas Gooden may immediately place the Customer’s account on stop credit, suspending further supply of Goods to the Customer until all overdue amounts are paid in full.
18.2  Interest on overdue invoices shall accrue in accordance with clause 7.8. If the Customer owes Thomas Gooden any money, the Customer shall indemnify Thomas Gooden from and against all costs and disbursements incurred by Thomas Gooden in recovering the debt, including but not limited to internal administration fees, legal costs on a solicitor and own client basis, and bank dishonour fees.
18.3  Without prejudice to Thomas Gooden’s other remedies at law, Thomas Gooden shall be entitled to cancel all or any part of any unfulfilled order of the Customer and all amounts owing to Thomas Gooden shall, whether or not due for payment, become immediately payable if: (a) any money payable to Thomas Gooden becomes overdue, or in Thomas Gooden’s opinion the Customer will be unable to make a payment when it falls due; (b) the Customer has exceeded any applicable credit limit; (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.
18.4  Further to any other rights or remedies Thomas Gooden may have under this Contract, if a Customer has made payment 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 Thomas Gooden under this clause 18, where it can be proven that such reversal is illegal, fraudulent or in contravention of the Customer’s obligations under this Contract.

19.  CANCELLATION
19.1  Without prejudice to any other remedies Thomas Gooden may have, if at any time the Customer is in breach of any obligation under these Terms and Conditions (including those relating to payment), Thomas Gooden may suspend or terminate the supply of Goods to the Customer. Thomas Gooden will not be liable to the Customer for any loss or damage the Customer suffers because Thomas Gooden has exercised its rights under this clause.
19.2  Thomas Gooden may cancel any Contract or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Thomas Gooden shall repay to the Customer any money paid by the Customer for those Goods. Thomas Gooden shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3  In the event the Customer cancels delivery of Goods, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Thomas Gooden as a direct result of the cancellation, including but not limited to any loss of profits.
19.4  All cancellations and adjustments to orders must be notified to Thomas Gooden in writing (by email or written notice). Thomas Gooden will not accept verbal cancellations or adjustments under any circumstances.
19.5  Cancellation of orders for Special Items made to the Customer’s specifications, or for non-stock items, will not be accepted once production has commenced or an order has been placed with a supplier.

20.  INTELLECTUAL PROPERTY
20.1  Where Thomas Gooden has designed, drawn or developed Goods for the Customer, the copyright in any designs, drawings and documents shall remain the property of Thomas Gooden. Under no circumstances may such designs, drawings or documents be used without the express written approval of Thomas Gooden.
20.2  The Customer warrants that all designs, specifications or instructions given to Thomas Gooden will not cause Thomas Gooden to infringe any patent, registered design or trademark in the execution of the Customer’s order. The Customer agrees to indemnify Thomas Gooden against any action taken by a third party against Thomas Gooden in respect of any such infringement.
20.3  Thomas Gooden’s product catalogues, price lists, technical specifications, website content and all associated intellectual property remain the exclusive property of Thomas Gooden. No part of such material may be reproduced, distributed or used for commercial purposes without the express written consent of Thomas Gooden.

21.  FORCE MAJEURE
21.1  Neither party shall be liable for any default or delay in the performance of its obligations under this Contract arising from or caused by circumstances beyond the reasonable control of that party, including but not limited to: acts of God; fire; flood; storm; earthquake; epidemic or pandemic; war; terrorism; strikes; lock-outs; industrial action; government action or restriction; supply chain disruption; international shipping delays; port closures; or shortage of materials.
21.2  The party affected by a force majeure event shall notify the other party in writing as soon as practicable and shall use all reasonable endeavours to overcome or work around the cause of the delay. During a force majeure event, Thomas Gooden may at its election suspend, defer or cancel any order without liability.

22.  AUSTRALIAN STANDARDS AND WATERMARK COMPLIANCE
22.1  Thomas Gooden supplies Goods that are certified under applicable Australian Standards and the WaterMark Certification Scheme at the time of supply. Customers should confirm applicable certification details with Thomas Gooden prior to ordering.
22.2  It is the Customer’s sole responsibility to ensure that: (a) the correct product is selected for the intended application; (b) the Goods are installed by a licensed and suitably qualified plumber or tradesperson in accordance with the applicable Australian Standards, the Plumbing Code of Australia and all State and Territory plumbing regulations; and (c) the Goods are used within their certified application and specification.
22.3  Thomas Gooden accepts no liability for: (a) the selection of Goods for a particular application by the Customer or any third party; (b) non-compliant installation of the Goods; or (c) the use of Goods outside their certified application or specification.

23.  GAS FITTINGS AND REGULATORY COMPLIANCE
23.1  Certain Goods supplied by Thomas Gooden, including gas bayonet outlets and associated gas fittings, are regulated products subject to AS/NZS 5601 (Gas Installations) and applicable State and Territory gas legislation.
23.2  Gas products supplied by Thomas Gooden must only be installed and tested by a licensed gas fitter holding the appropriate licence for gas installation work in the relevant State or Territory. Installation must be carried out in strict compliance with AS/NZS 5601, all applicable State and Territory gas regulations, and any manufacturer installation instructions.
23.3  Thomas Gooden accepts no liability whatsoever for: (a) any injury, death or damage to property arising from the improper installation, modification or use of gas products; (b) installation of gas products by an unlicensed person; (c) use of gas products outside their certified specification or rated application; or (d) failure to comply with applicable gas standards and regulatory requirements.
23.4  The Customer acknowledges and agrees that where the Customer on-sells gas products to third parties, the Customer shall ensure that appropriate warnings and installation requirements are communicated to the end user and installer, and the Customer indemnifies Thomas Gooden against any claim arising from the failure to do so.

24.  PRIVACY
24.1  Thomas Gooden acknowledges its obligations in relation to the handling, use, disclosure and processing of personal information pursuant to the Privacy Act 1988 (Cth), including the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth) (NDB scheme). In the event Thomas Gooden becomes aware of any data breach that may result in serious harm to the Customer, Thomas Gooden will notify the Customer in accordance with the Act.
24.2  The Customer agrees for Thomas Gooden to obtain from a credit reporting body a credit report containing personal credit information about the Customer in relation to credit provided by Thomas Gooden.
24.3  The Customer agrees that Thomas Gooden may exchange information about the Customer with credit providers for the following purposes: (a) to assess an application by the Customer; (b) to notify other credit providers of a default by the Customer; (c) to exchange information with other credit providers as to the status of this credit account; and (d) to assess the creditworthiness of the Customer.
24.4  The Customer agrees that personal credit information provided may be used and retained by Thomas Gooden for the following purposes: (a) the provision of Goods; (b) analysing, verifying and/or checking the Customer’s credit, payment and/or status; (c) processing of any payment instructions, direct debit facilities or credit facilities requested by the Customer; and (d) enabling the collection of amounts outstanding in relation to the Goods.
24.5  Thomas Gooden will destroy personal information upon the Customer’s written request or if it is no longer required, unless it is required to fulfil the obligations of this Contract or is required to be maintained in accordance with law.
24.6  The Customer may request a copy of the personal information held by Thomas Gooden by contacting Thomas Gooden in writing. The Customer may request correction of any incorrect personal information. The Customer can make a privacy complaint by contacting Thomas Gooden in writing. Any unresolved complaint may be referred to the Office of the Australian Information Commissioner at www.oaic.gov.au.

25.  TRUSTS
25.1  If the Customer at any time is acting in the capacity of trustee of any trust, then whether or not Thomas Gooden may have notice of the trust, the Customer covenants with Thomas Gooden that: (a) the Customer has full and complete power and authority under the trust to enter into this Contract; (b) the Customer will not release the right of indemnity against the trust or commit any breach of trust; and (c) the Customer will not, without the prior written consent of Thomas Gooden, cause, permit or suffer to happen: (i) the removal, replacement or retirement of the Customer as trustee; (ii) any alteration to or variation of the terms of the trust; or (iii) any distribution of capital of the trust that would prejudice Thomas Gooden’s ability to recover amounts owed.

26.  JURISDICTION AND GOVERNING LAW
26.1  These Terms and Conditions and any Contract to which they apply shall be governed by and construed in accordance with the laws of the State of New South Wales. The Customer and Thomas Gooden submit to the non-exclusive jurisdiction of the courts of New South Wales.

27.  SERVICE OF NOTICES
27.1  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 or as notified in writing; (c) by sending it by prepaid post to the address of the other party as stated in this Contract; or (d) by sending it by email to the other party’s last known email address, in which case it shall be deemed received on the next business day after sending.
27.2  Any notice sent by post shall be deemed to have been received, unless the contrary is shown, at the time when by the ordinary course of post the notice would have been delivered.

28.  SEVERABILITY
28.1  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.

29.  GENERAL
29.1  These Terms and Conditions cancel and supersede any previous conditions of sale or trading terms published or provided by Thomas Gooden. Any price list forwarded with these Terms and Conditions cancels any previous price list and does not constitute an offer to supply.
29.2  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.
29.3  Thomas Gooden may licence or assign all or any part of its rights and obligations under this Contract without the Customer’s consent. The Customer cannot licence or assign any rights under this Contract without the prior written approval of Thomas Gooden.
29.4  Thomas Gooden may amend these Terms and Conditions for subsequent future contracts with the Customer by disclosing such amendments to the Customer in writing. Such changes shall take effect from the date on which the Customer accepts them or makes a further request for Thomas Gooden to provide Goods.
29.5  Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to do so, and that this Contract creates binding and valid legal obligations on them.

30.  CYBER SECURITY AND PAYMENT FRAUD
30.1  Thomas Gooden will never notify the Customer of a change to its bank account details, BSB number or payment information by email alone. Any communication purporting to change Thomas Gooden’s payment details must be verified by the Customer by telephoning Thomas Gooden directly on its confirmed contact number before any payment is made to the new or changed details.
30.2  The Customer acknowledges the risk of Business Email Compromise (BEC) and payment redirection fraud and agrees to implement reasonable verification procedures before making any payment to Thomas Gooden, including:
(a)  verifying Thomas Gooden’s bank account details by telephone prior to making the first payment on a new account; and
(b)  verifying any purported change to Thomas Gooden’s payment details by telephone to Thomas Gooden’s confirmed office number before acting on any such communication, regardless of the apparent source of that communication.
30.3  If the Customer makes payment to a bank account other than Thomas Gooden’s verified account as a result of the Customer’s failure to comply with clause 30.2, Thomas Gooden’s invoice shall remain outstanding and payable in full. Thomas Gooden shall not be liable for any loss suffered by the Customer arising from such misdirected payment where the Customer failed to take the verification steps required under this clause.
30.4  Thomas Gooden will verify any changes to the Customer’s contact details, banking details or account information by contacting the Customer directly on the telephone number held on file before updating its records. Thomas Gooden will not action any request to update the Customer’s payment or contact details received solely by email without first confirming that request by telephone.
30.5  Neither party shall be liable to the other for losses arising from payment fraud or Business Email Compromise where the defrauded party failed to take the reasonable verification steps described in this clause prior to acting on a payment instruction or change of details.
30.6  The Customer is encouraged to report any suspected payment fraud or Business Email Compromise involving Thomas Gooden to: (a) Thomas Gooden immediately by telephone on 02 9603 9988; (b) the Australian Competition and Consumer Commission’s Scamwatch at www.scamwatch.gov.au; and (c) the Australian Cyber Security Centre at www.cyber.gov.au.

THOMAS GOODEN FOUNDRY SERVICES PTY LIMITED
ABN 87 003 383 051 | 12 Stonny Batter Rd, Minto NSW 2566 | PO Box 5891, Minto NSW 2566
Phone: 02 9603 9988 | Email: [email protected]