Terms and conditions for sale of BPA products

1          Definitions

Agreement means the agreement between BPA and the Buyer in relation to the sale of Goods on these Terms, and any terms specified in any Order accepted by BPA in accordance with these Terms.

Business Day means Monday to Friday, excluding gazetted public holidays in NSW  

Buyer means the buyer of the Goods specified in the Order.

BPA means Bathroom Products Australia Pty Ltd ABN 87 079 297 617 and/or where the context requires, any of its related corporations and where applicable their successors and assigns.

BPA Price List means the official list of Prices published by BPA from time to time online and/or in hard copy form.

Delivery means the physical delivery of the Goods to the Buyer or to the agent of the Buyer.

Delivery Schedule means the written schedule accompanying the Goods on Delivery, setting out a general description and quantity of the Goods, the Order number, the Delivery address, the date and other terms relevant to the Delivery.

Dispatch means dispatch of the Goods from BPA’s premises for the purpose of Delivery of the Goods

Good/s means the product/s specified in an Order.

Inspection Period in relation to certain Goods means 10 Business Days after Delivery of those Goods.

Loss includes, but is not limited to, costs (including legal costs on an indemnity basis), expenses, lost profits, award of damages, personal injury and property damage.

Order means a written request by the Buyer to purchase specified  products from BPA .

Price in relation to a Good means the price specified in the then current BPA Price List or, if applicable, in a Quote.

Quote means a written description of the Goods to be provided, the price of those Goods and an estimate of the date of Delivery.

these Terms means the terms and conditions set out in this document as may be varied in accordance with those terms and conditions.

2          Sole agreement

• The acceptance of an Order by BPA gives rise to an agreement by BPA and the Buyer that these Terms set out the sole basis for the sale of Goods the subject of that Order to the exclusion of any conditions of sale appearing on any other document of BPA or the Buyer.
  • Subject to clause 2(c) BPA may vary these Terms at any time by uploading the amended version of these Terms as amended to its website.
  • Modification of these Terms expressed in any document of a party after the date of acceptance of an Order does not apply to that Order unless expressly agreed to in writing by the other party.

3          Agreement to buy and sell

In return for payment by the Buyer to BPA of the Price of each of the Goods, BPA sells, and the Buyer buys, the Goods on these Terms.

4          Quotes

• BPA may provide the Buyer with a Quote. Any Quote issued by BPA is valid for the period specified on the Quote. A Quote does not constitute an offer capable of legally binding acceptance.
  • Unless otherwise expressly specified in writing, a Quote is subject to the terms and conditions in the Delivery Schedule.Following provision of a Quote to the Buyer, BPA is not obliged to prepare to supply any Goods until the Quote has been accepted by the Buyer. This occurs by the Buyer sending an Order to BPA.
• • BPA reserves the right to amend any Quote before the Order has been accepted to take into account any rise or fall in the cost of completing the Order. BPA will notify the Buyer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote under these Terms.
  • An indication in a Quote of the time of Delivery of the Goods is an estimate only. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), this estimate is not binding upon BPA.

5          Placement of Orders

• The Buyer must order Goods from BPA by filling out and sending to BPA an Order.
  • Each Order must specify:
    • the date of the placement of the Order;
    • a unique purchase order number
    • the quantity and description of the Goods ordered;
    • the Price according to the relevant Quote or if there is no Quote then BPA’s then current Price for each of the Goods;
    •  the address of the Buyer’s business premises (to which the Goods will be Delivered); and
    • if the Buyer has a preferred date of Delivery – then the preferred Delivery date. 
  • Any terms included by or on behalf of the Buyer in an Order are not binding on BPA and do not form part of the Agreement unless expressly and specifically accepted in writing by an authorised officer of BPA.

6          Acceptance of Orders

• BPA may decline any Order received from the Buyer by written notice to the Buyer and will be deemed to have accepted the Order if it has not given such notice within 5 Business Days after the day of receipt of the Order by BPA.
  • If the Buyer has nominated a preferred Delivery date, then BPA will use reasonable endeavours to advise the Buyer within 7 days of receiving the Order whether or not it can deliver the Goods by the preferred Delivery date. If it advises that it cannot, then the Parties will negotiate in good faith an alternative Delivery date. The Delivery date is not an essential term of the Agreement and BPA will not be liable in damages or otherwise if Delivery does not occur by the preferred Delivery date.

7          Delivery of Orders

• BPA agrees to use reasonable endeavours to deliver Goods to the Buyer’s business premises specified in the Order between the hours of 9 am and 5 pm on any Business Day. BPA does not deliver to the end-user’s site.
  • BPA will arrange Delivery of the Goods in accordance with BPA’s Delivery Schedule.

8          Alterations

• The Buyer may prior to Dispatch request that its Order be varied by providing a request in writing to BPA. A request for a variation must be agreed to in writing by BPA in order to have effect.
  • If the Buyer wishes to vary its requirements after a Quote has been prepared by BPA or after the placement of an Order, BPA reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional services provided due to the variation, in accordance with its then current charge rates. A revised Quote issued by BPA in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods.
  • BPA has an automatic extension of time for the provision of the Goods equal to the delay caused by the variation.
  • Where an Order is cancelled, the Buyer indemnifies BPA  against any Losses incurred as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.

9          Additional Charges

• BPA may require the Buyer to pay additional charges in respect of costs incurred by BPA as a result of reliance on inadequate or incorrect information or material provided by the Buyer or information or material supplied later than required by BPA in order for it to provide the Goods within the specified time frame (if any).
  • The imposition of additional charges may also occur as a result of:
    • cancellation by the Buyer of an Order where cancellation results in Loss to BPA. A minimum restocking fee of 20% of the Price is payable by the Buyer unless otherwise agreed by BPA in writing. The parties agree this is a genuine estimate of BPA’s costs;
    • storage costs for Goods not collected from BPA within 2 weeks of the date on which the Goods are manufactured, fabricated, created, formed or packed for Dispatch;
    • photocopying, courier, packing or handling charges not included in the Quote;
    • Government or council taxes or charges not included in the Quote;
    • call out fee and costs of consultants to inspect and verify alleged defects or damage, where it transpires that BPA is not liable for those defects or damage; or
    • additional services of BPA required by the Buyer or any other occurrence which causes BPA to incur costs in respect of the Buyer’s Order additional to the quoted cost.

10        Price and Invoicing

• An Order is placed on a firm price basis in accordance with the applicable Prices.
  • BPA will ordinarily invoice the Goods within 7 days of acceptance of the Order. BPA may issue more than one invoice in respect of an Order depending upon the availability of Goods the subject of the invoice.

11        Payment

• Unless stated otherwise, the Price is exclusive of GST. The Buyer must pay the Price, plus the requisite GST, in relation to each Order to BPA by electronic funds transfer quoting their debtor code and/or the invoice number:
  • if no credit arrangement has been previously agreed by BPA in writing, then before Dispatch, and
  • otherwise within 30 days from the end of the month in which Delivery occurs
• in each case (Payment Due Date).
  • The Buyer must pay interest on any outstanding amount not paid by Payment Due Date at a rate equal to 5% above the RBA Cash Target Rate last published as at the date of the Order. Interest will accrue daily on the outstanding balance from time to time from the Payment Due Date until the outstanding amount is paid in full.
  • If payment is not made by the Payment Due Date, then on demand by BPA, the Buyer must at its sole cost return the Goods to BPA. The Goods must be in saleable condition in original packaging.
  • The Buyer must pay all expenses incurred by BPA in seeking to recover amounts not paid to it by the Payment Due Date, including collection agency fees, and legal costs and disbursements on an indemnity basis,
  • The Buyer must pay all expenses and Losses (including consequential loses) incurred by BPA in seeking to retake possession of the Goods.

12        Passing of title

Title to the Goods the subject of an Order passes to the Buyer free of encumbrances and all other adverse interests only upon receipt by BPA of payment in full of the Price and GST. Until title to the Goods the subject of an Order passes to the Buyer, BPA holds a security interest in the Goods and all proceeds from the sale of the Goods as contemplated under the Personal Property Securities Act 2009 (Cth) (PPSA).

13        Rights in relation to Goods

• BPA reserves the following rights in relation to the Goods in respect of an Order until all amounts owed by the Buyer to BPA in respect of that Order are fully paid:
  • ownership of the legal and equitable title to the Goods;
• • the right to enter the Buyer’s premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods. In this regard the Buyer agrees to keep the Goods separate from other materials and readily identifiable, until payment in full is made; andsubject to, and in accordance with, the PPSA, the right to keep or resell any Goods repossessed pursuant to paragraph 13(a)(ii) above.
• • If the Buyer resells the Goods or products incorporating the Goods, before all moneys payable by the Buyer have been paid to BPA, the Buyer must hold part of the proceeds of any such sale, as represents the invoice price of the Goods sold or incorporated in the products sold, on trust in a separate identifiable account as the beneficial property of BPA. The Buyer must pay this amount to BPA upon demand. Despite these provisions, BPA is entitled to maintain an action against the Buyer for the Price and the risk of the Goods passes to the Buyer upon Dispatch.Prior to title in the Goods passing to the Buyer under the Agreement, the Buyer agrees that:
    • the Buyer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation that BPA may owe to the Buyer;the Buyer cannot claim any lien over the Goods;the Buyer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by BPA; andwhere the Buyer is in actual or constructive possession of the Goods:
      • the Buyer will not deliver them or any document of title to the Goods to any person except as directed by BPA; andit is in possession of the Goods as a bailee of those Goods and owes BPA the duties and liabilities of a bailee
      BPA may take possession of the Goods upon refunding to the Buyer any part payment that may have been made in respect of those Goods.
    In connection with the Goods, BPA states to the Buyer that:
    • BPA has the right to supply the Goods to the Buyer;the activities of the Buyer in supplying the Goods do not infringe the rights of the owner of the Goods (where BPA is not the owner of the Goods); andif the Goods are not owned by BPA, BPA is authorised to supply the Goods to the Buyer.
  • BPA and the Buyer agree that pending payment in full for the Goods, the Buyer:
    • must not supply any of the Goods to any person outside of its ordinary or usual course of business or other than on arms’ length market value terms;
    • must insure the Goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Buyer carries on business; and
    • must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods.

14        Passing of risk

Risk in each Order passes to the Buyer upon Delivery of the Goods the subject of that Order to the Buyer or collection of that Order by the Buyer’s agent or courier as the case may be, notwithstanding title to the Goods may not have passed to the Buyer.

15        Agency and assignment

• The Buyer agrees that BPA may at any time appoint or engage an agent to perform an obligation of BPA arising out of or pursuant to the Agreement.
  • No agent or distributor of BPA has the authority to legally bind BPA except in accordance with a written notice of authority signed by an authorised office of BPA.
  • BPA has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from the Agreement provided that the assignee agrees to assume any duties and obligations of BPA owed to the Buyer under the Agreement.
  • The Buyer is not to assign, or purport to assign, any of its obligations or rights under the Agreement without the prior written consent of BPA.

16        Term

The Agreement commences on the date it is made and ends when terminated in accordance with any express right of termination set out in the Agreement.

17        Termination

• In the absence of any breach of the Agreement, neither party may terminate the Agreement without the written consent of the other party.
  • The Agreement may be terminated by a party if the other party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management or enters into any form of external administration (other than for the purpose of amalgamation or solvent reconstruction).
  • Either party may terminate the Agreement if:
    • the other party is in material breach of any of its obligations under the Agreement; and
    • the breach is capable of remedy and fails to remedy the breach for a period of 14 days after receipt of a written notice by the other party requiring rectification of the breach.
  • Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of the Agreement.
  • The obligations of the parties that by their nature could reasonably be construed as being intended to continue to apply beyond the termination of the Agreement will continue to apply.

18        Personal Property Securities Act 2009 (Cth) (PPSA)

• The Agreement is a security agreement.
  • The interest of BPA in the Goods and all proceeds from the sale of the Goods by the Buyer to a third party is a security interest.
  • The Buyer consents to BPA registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by BPA to facilitate registration.
  • Until title in the Goods has passed to the Buyer as contemplated by clause 12, the Buyer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create a security interest over the Goods in favour of the Buyer or any third party. The parties agree that this clause will not prohibit the Buyer from selling the Goods in the ordinary course of business.
  • The Buyer waives its rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by that Act and cannot be excluded.
  • BPA and the Buyer agree that the Agreement and all related information and documents are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by the Agreement or required by law. BPA and the Buyer agree that BPA will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.
  • Unless otherwise mandated by the PPSA, BPA and the Buyer agree that each of the following requirements or rights under the PPSA does not apply to the enforcement of BPA’s security interest in the Goods or of the Agreement:
    • any requirement for BPA to give the Buyer a notice of removal of accession;
    • any requirement for BPA to give the Buyer a notice of BPA’s proposed disposal of the Goods;
    • any requirement for BPA to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;
    • any requirement for BPA to give the Buyer a statement of account if BPA does not dispose of the Goods;
    • any right the Buyer has to redeem the Goods before BPA exercises a right of disposal; and
    • any right the Buyer has to reinstate the Agreement before BPA exercises a right of disposal of the Goods.
  •  The Customer must do anything requested by the Company to ensure that its security interest is a perfected security interest and a PMSI and has priority over all other security interests in the goods.
  • Nothing in this clause 18 is limited by any other provision of these Terms or any other agreement between the parties.
  • Expressions defined in the PPSA have the same meaning when used in the Agreement.

1. Standard to conform to specifications

• Where an Order is for Goods to be bespoke manufactured by BPA for the Buyer according to specifications supplied or approved by or on behalf of, the Buyer, BPA agrees to procure that the Goods are substantially in accordance with and conform to any such specifications, drawings, samples or other description (if any) furnished to BPA or approved by the Buyer.
  • The Buyer acknowledges and agrees that BPA will not be able to resell bespoke Goods, and that the Price of the Goods together with any other costs reasonably incurred by BPA in designing, manufacturing and/or Delivering the Goods are recoverable by BPA from the Buyer as BPA’s loss and damage resulting from the cancellation. The Buyer indemnifies BPA and shall hold it harmless from any Losses suffered or incurred by BPA arising from or in connection with such cancellation.

20        Warranty

The warranty terms set out in the section entitled “Product Warranty” apply to and are incorporated into the Agreement.

21        Inspection and return

• All Goods must be inspected by or on behalf of the Buyer within the Inspection Period.
  • The Buyer must notify BPA in writing of any alleged defects in the Goods and of the Buyer’s intention to return the Goods as soon as practicable and in any event within the Inspection Period. The Buyer must hold the Goods believed by it to be defective for BPA’s instructions and for a reasonable period not exceeding 14 days after the Buyer gives the said notice.
• • All returns or claims must be approved by BPA. If approved, BPA will issue a return authorisation number (RAN). The RAN must be included with the returned goods.The Buyer shall not be entitled to reject or make any claim in relation to any allegedly defective or shortage in quantity of Goods in respect of which it first gives written notice after the Inspection Period in relation to those Goods, unless the defect or shortage was not reasonably ascertainable from an inspection of the Goods that is reasonable having regard to the nature of the Goods and defects or shortage that would be expected may occur in that type of Goods.Goods must be returned in a saleable condition and in original packaging and the Buyer must pay all freight and other costs of returning the Goods. A restocking fee of 20% of the Price of returned Goods is payable by the Buyer unless BPA otherwise agrees.
  • The Buyer’s obligations under this clause are subject to the Buyer’s rights under the ACL which cannot lawfully be contracted out of.

22        Exclusions and limitation of liability

• The Buyer expressly agrees that use of the Goods is at the Buyer’s risk. To the full extent allowed by law, BPA’s liability for breach of any term implied into these Terms by any law is excluded.
  • All information, specifications and samples provided by BPA in relation to the Goods are approximations only and, subject to any guarantees under the ACL, small deviations or slight variations from them which do not substantially affect the Buyer’s use of the Goods will not entitle the Buyer to reject the Goods upon Delivery or to make any claim in respect of them.
  • Under no circumstances is BPA or any of its suppliers liable or responsible in any way to the Buyer or any other person for any Loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods, except as expressly provided in the Agreement. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
    • any Goods supplied to the Buyer;
    • any delay in supply of the Goods; or
    • any failure to supply the Goods.
  • Any advice, recommendation, information, assistance or service given by BPA in relation to Goods, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. BPA does not accept any liability or responsibility for any Loss suffered as a result of the Buyer’s reliance on such advice, recommendation, information, assistance or service.
  • To the fullest extent permissible at law, BPA is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods, or otherwise arising out of the provision of Goods, whether based on terms of trade, negligence, strict liability or otherwise, even if BPA has been advised of the possibility of damages.
  • Subject to the ACL, BPA’s liability under the Agreement is limited to, at its option:
    • replacing the Goods,
    • repairing the Goods,
    • paying the cost of replacing the Goods, or
    • paying the cost of repairing the Goods.
  • BPA disclaims any liability for lack of operation or performance of Goods where the Goods are used or adapted for a purpose for which they were not designed or integrated with products not manufactured or supplied by BPA.
  • The ACL may give to the Buyer certain consumer guarantees, which cannot be restricted, limited or varied.

23        Force majeure

• If circumstances beyond BPA’s control prevent or hinder its provision of the Goods, BPA is free from any obligation to provide the Goods while those circumstances continue. BPA may elect to terminate the Agreement or keep the Agreement on foot but suspended until such circumstances have ceased.
  • Circumstances beyond BPA’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

24        Proper law

The Agreement is governed by the law of the state of New South Wales.

25        Notices

• Any notice, approval, consent or other communication under the Agreement must be in writing and in English, may be given by an authorised representative of the sender and delivered personally, or by prepaid registered post, or email, to a party at the address of that party indicated in the Agreement, or to another address as that party may from time to time notify to the other for the purposes of this clause. If two or more people comprise a party, notice to one is effective notice to all.
  • Proof of posting by prepaid registered post or of dispatch of email will be proof of receipt,
    • in the case of a letter to an address within the city of dispatch, on the third day after posting, otherwise on the fifth day after posting;
    • in the case of an email, provided the recipient acknowledges receipt by return email or other recorded means, at the time such email was received by the recipient as revealed by the recipient’s inbox, or otherwise 12 hours after sending unless the sender receives a notice that the email was not delivered;
• provided always that that if that time is not between 9am to 5pm on a business day in the place where the recipient is located, service will be deemed to have occurred at 9am on the next business day in that place.

26        General

• These Terms and any accepted Orders and written variations agreed to in writing by BPA represent the whole agreement between the parties relating to the subject matter of the Agreement.
  • The Agreement supersedes all oral and written negotiations and communications by and on behalf of either of the parties.
  • In entering into the Agreement the Buyer has not relied on any warranty, representation or statement, whether oral or written, made by BPA or any of its employees or agents relating to or in connection with the subject matter of the Agreement.
  • If any provision of the Agreement is rendered void or ineffective by operation of law, the validity or effectiveness of the remainder shall be unaffected.
  • A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
  • Each party agrees to do anything the other party reasonably asks of it (such as obtaining consents, signing and producing documents and getting documents completed and signed):
    • to bind the party and its successors under the Agreement;
    • to give effect to the intentions of the parties and the objectives of the Agreement and the transactions contemplated by it, including negotiating in good faith with respect to any matters requested by the other party, and by the execution and delivery of documents and other instruments; and
    • to use its reasonable endeavours to cause relevant third parties to do likewise to bind every party intended to be bound under the Agreement.