TERMS AND CONDITIONS

1. Definitions

In these Terms and Conditions:

(a) "Customer" means the person or company named on the Order and, where applicable, includes any servant, agent, partner, contractor or employee of that person or company;

(b) "goods" means all goods supplied by PolyGuru to the Customer, including the goods specified in an order;

(c) “PolyGuru” located at: Balaclava, VIC 3183 and, where applicable, includes any servant, agent, contractor or employee of that company;

(d) “order” means an order from the Customer for the supply of goods and/or services by PolyGuru, to which these Terms and Conditions apply.

(e) “services” means all services supplied by PolyGuru to the Customer, including the services specified in an order;

2. Orders

2.1 Acknowledgment

The Customer, by placing an order, acknowledges and agrees:

(a) that it is expressly contracting with PolyGuru on these Terms and Conditions;

(b) to be bound by the Terms and Conditions, unless otherwise agreed to by PolyGuru in writing; and

2.2 Acceptance

A Customer’s order is deemed to have been accepted by PolyGuru, once PolyGuru issues an order confirmation to the Customer setting out the goods and /or services to be supplied, the cost of such goods and/or services, an order number and the estimated delivery date (Order Confirmation).

3. Variations

The parties acknowledge that it may become necessary to vary the goods and/or services to be supplied by PolyGuru to the Customer (Variation).

3.1 Variations by the Customer

(a) If the Customer requires a Variation, it must give written notice requesting such Variation to PolyGuru.

(b) As soon as practicable after receiving a request for Variation, PolyGuru will provide the Customer with:

(i) an estimate of the effect that the Variation will have on the delivery of the goods and/or services; and

(ii) a quotation incorporating the Variation.

(c) After receipt of the information referred to in clause 3.1(b), if the Customer wishes to accept the Variation it must do so in writing. Upon acceptance by the Customer, the Variation will form part of the goods and services to be supplied by PolyGuru at the price specified in the quotation.

3.2 Necessary Variations

(a) The Customer acknowledges that from time to time and at any time during the provision of the goods and services, it may become apparent that Variations are required to the scope of the work specified in an order. Without limiting the generality of this clause, such Variations may become necessary due to one or more of the matters specified in clause 7.

(b) If in the reasonable opinion of PolyGuru it becomes apparent that a Variation is required in order to complete the services required by the Customer, PolyGuru will (as soon as practicable after becoming aware of the need for such Variation) provide the Customer with:

(i) a reason as to why the Variation is required;

(ii) an estimate of the effect that the Variation will have on the delivery of the services; and

(iii) a quotation incorporating the Variation.

(i) it accepts the quotation in writing; or

(ii) it instructs PolyGuru to commence the work set out in the quotation; or

(iii) it does not object to the provision of the goods and services at the price specified in the quotation prior to the commencement of work by PolyGuru.

4. Pricing and Payments

(a) The Customer is liable to pay the full price specified in the Order Confirmation (plus the cost of any Variations) to PolyGuru, regardless of any agreement the Customer may have with a third party to contribute to the price.

(b) Unless otherwise agreed in writing, the Customer must pay the full price to PolyGuru before any goods or services will be provided.

(c) Unless otherwise specified, the price of the goods and services quoted by PolyGuru are exclusive of GST. In addition to the price payable for the goods and services, the Customer must pay to PolyGuru, on demand, the GST payable in respect of the supply of those goods and services. For the purposes of these Terms and Conditions, “GST” has the same meaning as that word is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).

(d) Unless otherwise agreed in writing all prices are strictly net and the Customer must pay the full purchase price of the goods and services without deduction, set-off, withholding or counterclaim, as set out on PolyGuru’s invoice and within the period set out in that invoice.

(e) In the event that the Customer fails, refuses or neglects to pay the purchase price for the goods and services by the due date set out in an invoice, PolyGuru may charge interest on all unpaid amounts at a rate of 2.5% after 7 days of the due date, and an additional 2.5% per 7 days thereafter until the Customer pays all outstanding amounts in full.

5. Delivery

(a) The Customer will provide reasonable and proper access to the location specified for delivery. A completed driver’s manifest or delivery docket whether signed by the driver or by the Customer or its employee or agent will be proof of delivery of goods invoiced. If the delivery location is unattended, delivery will be deemed to have been made in accordance with the Customer’s order by leaving the goods at the location with a delivery docket, at which point the Customer will be deemed to have accepted the goods.

(b) PolyGuru will in all cases be entitled to choose the method of transport of the goods and the Customer authorises PolyGuru to subcontract delivery in its absolute discretion.

(c) Where a delivery date is specified, PolyGuru will endeavour to deliver the goods on the due date. PolyGuru may unilaterally delay or suspend any delivery for any period or deliver the goods ordered by instalments (in which case each instalment is considered a separate agreement for sale) or cancel any agreement for sale without any liability whatsoever.

(d) The Customer shall not be entitled to reject delivery of any goods due to a delay in their delivery or if delivered in instalments.

(e) To the extent permitted by law, the Customer must notify PolyGuru of any incomplete deliveries within 24 hours of delivery, otherwise the Customer will be deemed to have accepted the order.

(f) For 'Goods Only' purchases, delivery cost will be added after the fact, at the discretion of PolyGuru. The Customer accepts full responsibility for payment of the varying delivery charge once the goods are purchased, prior to the dispatch of goods.

6. Risk and Insurance

(a) The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods will pass to the Customer immediately on the goods being delivered to the address specified by the Customer.

(b) The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use or possession of any of the goods sold by PolyGuru, whether such goods are used singularly, or in combination with other goods, substances, or any process.

7. Customer obligations

(a) The Customer must obtain any notices, permits and approvals necessary for PolyGuru to supply the goods and services, and if requested by PolyGuru, must provide such notices, permits and approvals to PolyGuru within the specified timeframe.

(b) The Customer:

(i) assumes all liability for goods that PolyGuru are manufacturing or cutting based on measurements provided by the Customer, or a third party on behalf of the Customer (Bespoke Goods). Once Bespoke Goods have been manufactured or cut, a Variation cannot be provided.

(ii) assumes all liability, including any additional costs arising from the removal of any unforeseen buried objects, including but not limited to boulders, large rocks, tree stumps and concrete (Buried Obstructions), removal of which is necessary for PolyGuru to supply the goods and services, and

(iii) acknowledges that the existence of any Buried Obstructions may necessitate the need of a Variation pursuant to clause 3.2.

(i) assumes all liability, including any additional costs arising from the removal of any trees, shrubs, landscaping, rubbish, debris, pipes and other obstacles (Obstructions), removal of which is necessary for PolyGuru to supply the goods and services; and

(ii) acknowledges that the existence of any Obstructions may necessitate the need of a Variation pursuant to clause 3.2.

(d) The Customer assumes all liability for any underground service obstructions, including but not limited to telephone and internet cables, gas, water, sewerage and reticulation pipes, and acknowledges that the existence of such underground service may necessitate the need of a Variation pursuant to clause 3.2.

(e) The Customer assumes all liability for any animals, pets and livestock at the site where work is being undertaken.

(f) The Customer assumes all liability for any damage to finished surfaces, including but not limited to paving, concrete and bitumen.

8. Delay

(a) PolyGuru may delay the supply of goods and services to the Customer due to:

(i) a Variation or a request for a Variation;

(ii) the Customer’s refusal to agree to a Variation requested by PolyGuru;

(iii) inclement weather or conditions resulting from inclement weather;

(iv) disputes with neighbouring owners or residents, or proceedings brought or threatened by them;

(v) civil commotion or industrial action affecting the work of tradespeople or the work of a manufacturer or supplier of materials;

(vi) anything done or not done by the Customer;

(vii) a delay in getting any approval;

(viii) a delay in getting materials;

(ix) unforeseen work overload;

(x) a delay in handover from other tradespeople;

(xi) pandemic or the resulting lockdown thereof;

(xii) any other cause that is beyond PolyGuru’s direct control.

(b) PolyGuru will notify the Customer of the cause and extent of the delay.

(i) the Customer will be liable for any costs incurred by PolyGuru as a result of the delay; and

(ii) PolyGuru will reschedule the work to the end of its job line.

9. Termination

In the event that the Customer terminates PolyGuru’s engagement prior to the delivery of goods or completion of the services, the Customer will forfeit an amount specified by PolyGuru (in its sole and absolute discretion) on account of the provision of the goods and services provided up to the date of termination, and acknowledges that such amount constitutes a genuine pre-estimate of the loss and damage that PolyGuru stands to suffer and incur on account of the early termination of PolyGuru’s services.

10. Liability

10.1 Exclusions

To the extent permitted by law:

(a) any advice, recommendation, information or representation provided by PolyGuru as to the quality or performance of the goods or their suitability for a particular purpose or otherwise in relation to the goods and services is given in good faith but without any liability or responsibility on the part of PolyGuru;

(b) the Customer acknowledges that it has not relied upon or been induced by any representation of PolyGuru in entering into these Terms and Conditions or in placing any order for the goods and services;

(c) except as specifically set out in these Terms and Conditions, or contained in any warranty or statement provided with the goods, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded;

(d) replacement or repair of the goods (at PolyGuru’s sole election) is the absolute limit of PolyGuru’s liability howsoever or wheresoever arising under or in connection with the sale, use of, storage or any other dealings with the goods by the Customer or any third party;

(e) PolyGuru is not liable for any indirect, consequential, special, economic or punitive losses or expenses suffered by the Customer or any third party, howsoever caused, including loss of turnover, profits, business or goodwill or any liability to any other party;

(f) PolyGuru will not be liable for any loss or damage suffered by the Customer where PolyGuru has failed to meet any delivery date or cancels or suspends the supply of goods.

10.2 Subject to Law

Nothing in the Terms and Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any laws applicable to the supply of goods or services which cannot be excluded, restricted or modified.

10.3 Limitations

If a non-excludable term, condition, guarantee, or warranty applies to the supply of goods or services by PolyGuru by operation of law (including the Australian Consumer Law), then to the maximum extent permitted by law the liability of PolyGuru for breach of such term, condition, guarantee or warranty will be limited to (at PolyGuru’s election):

(a) in the case of goods:

(i) replacement of the goods or the supply of equivalent goods;

(ii) the cost of replacing the goods or acquiring equivalent goods;

(iii) the repair of the goods; or

(iv) the cost of having the goods repaired; and

(b) in the case of services:

(i) supplying the services again; or

(ii) payment of the cost of having the services supplied again.

10.4 Disputes

If a dispute arises (including as to the quality of the goods and services) the Customer must accept and pay for the goods and services in full and pursue any claim against PolyGuru at a later date.

11. Passing of Property

11.1 Title

(a) Title in the goods will remain with PolyGuru and will not pass to the Customer until such time when the Customer pays all monies owing to PolyGuru by the Customer in full, on all accounts (which payments are not to any extent subsequently claimed or clawed back by any person standing in the place of or representing the Customer).

(b) While the goods remain the property of PolyGuru, the Customer agrees with PolyGuru that:

(i) the Customer holds the goods as fiduciary bailee and agent for PolyGuru;

(ii) the Customer will keep the goods separate from its goods so that they are readily identifiable as the property of PolyGuru;

(iii) the Customer will not dispose of the goods except with PolyGuru’s prior written consent or in the ordinary course of the Customer’s business;

(iv) the Customer will hold the proceeds of any sale of the goods on trust for PolyGuru in a separate account however failure to do so will not affect the Customer's obligation to deal with the proceeds as trustee and will pay such monies immediately on request to PolyGuru;

(v) the Customer will not cause the goods to lose their identifiable character or be intermingled with other goods, in any way, either by any process of its own or by a third party, except with PolyGuru’s prior written consent or in the ordinary course of the Customer’s business;

(vi) the money received for the sale of any intermingled goods, which contain the goods of PolyGuru, will be held in trust for PolyGuru (to the maximum extent that such “trust” monies represent the total outstanding debt owed to PolyGuru on all accounts by the Customer) and the Customer will pay such monies immediately on request to PolyGuru;

(vii) the Customer has no right or claim to any interest in the goods to secure any liquidated or unliquidated debt or obligation PolyGuru owes to the Customer;

(viii) the Customer cannot claim any lien over the goods;

(ix) the Customer will not create any absolute or defeasible interest in the goods in relation to any third party, except with PolyGuru’s prior written consent;

(x) pending payment in full for all amounts owed by the Customer to PolyGuru on all accounts, the Customer:

(xi) must not allow any person to have or acquire any security interest in the goods;

(A) must insure the goods for their full insurable or replacement value (whichever is higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Customer carries on business;

(B) must not remove, deface or obliterate any identifying mark or number on any of the goods.

11.2 Recovery

If the Customer fails to pay for any goods as and when payment falls due:

(a) PolyGuru may without notice and without incurring any liability to the Customer or any other person, enter any premises where it suspects the goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of PolyGuru, and for this purpose the Customer irrevocably licences PolyGuru to enter such premises and also indemnifies PolyGuru from and against all costs, claims, demands or actions by any party arising from or in connection with such action; and

(b) if required, the Customer will assign to PolyGuru any rights of the Customer to payment of any outstanding money relating to the re-supply of the goods (Debts). The Customer irrevocably appoints PolyGuru or its nominee as its attorney to sign all documents and do all things necessary to assign the Debts to PolyGuru under this clause, where the Customer has failed to do so within 7 days of receiving written notice to do so (sufficient proof of which shall be a statutory declaration signed by an officer of PolyGuru), and ratifies any acts the attorney lawfully does or causes to be done with respect to any such assignment of the Debts.

12. Security

The Customer by entering into these Terms and Conditions and ordering the goods from PolyGuru, grants the Security Interest to PolyGuru and enters into the Security Agreement with PolyGuru, in which case:

(a) the Customer acknowledges and agrees that the goods are inventory;

(b) the Customer must, as and within the timeframe notified by PolyGuru, sign all documents and do all things necessary in order to:

(i) enable Registration with respect to the Security Interest and for that Registration to continue until such time as all of the Customer’s obligations under the Security Agreement have been satisfied, including providing the Customer’s details and any serial numbers required for Registration;

(ii) ensure that the Security Interest has priority over all other security interests in the Personal Property, whether registered, perfected or otherwise and whether created or arising before or after the creation of the Security Interest, except those security interests which PolyGuru agrees in writing will have priority over the Security Interest or which by law have priority over the Security Interest;

(iii) ensure that PolyGuru is able to Enforce the Security Interest until such time as all of the Customer’s obligations under the Security Agreement have been satisfied and the Customer must not do anything which affects PolyGuru’s ability to Enforce the Security Interest;

(c) PolyGuru may exercise its rights in relation to the Security Interest any time after the Customer fails to comply with its obligations under the Security Agreement;

(d) to the extent permitted by the PPSA, the Customer waives its rights to receive any notices, statements or forms required to be issued or which would ordinarily be issued, whether by PolyGuru or any other person, to the Customer under the PPSA;

(e) the Customer must pay to PolyGuru on request, all PolyGuru’s expenses, including legal costs on an indemnity basis, stamp duty and registration fees, in connection with the Security Agreement and the grant of the Security Interest, Registration with respect to the Security Interest and release of the Security Interest;

(f) where permitted under the PPSA or any other relevant law, the provisions contained in the Security Agreement will prevail over the PPSA or any other relevant law, to the extent of any inconsistency;

(g) the Customer irrevocably appoints PolyGuru, as its attorney to sign all documents and do all things PolyGuru considers reasonably necessary to comply with the Customer’s obligations under the Security Agreement, where the Customer has failed to do so within the timeframe required by PolyGuru or the PPSA (sufficient proof of which shall be a statutory declaration signed by an officer of PolyGuru) and ratifies any acts the attorney lawfully does or causes to be done under the Security Agreement;

(h) in these Terms and Conditions, unless the context otherwise requires:

(i) “Enforce” means exercise all of PolyGuru’s rights, under the Security Agreement or otherwise, in relation to the Security Interest;

(ii) “Personal Property” if the PPSA applies, means all the Customer’s present and after-acquired Personal Property and includes all of the Collateral and any other assets, property and rights over which the Security Interest is permitted by law, and, where applicable, includes the proceeds from the sale of any of the Personal Property;

(iii) “PPSA” means the Personal Properties Securities Act 2009 (Cth) and the Personal Property Securities Regulations 2010 (Cth);

(iv) “Registration” means registration of the Security Interest on the Register to enable the Security Interest to have priority in accordance with the Security Agreement;

(v) “Security Agreement” means the agreement between the Customer and PolyGuru that creates or evidences the Security Interest, including these Terms and Conditions;

(vi) “Security Interest” means a “security interest” (as defined in the PPSA) granted by the Customer in the Customer’s Personal Property to PolyGuru under the Security Agreement to secure payment of all money by the Customer and performance of all the Customer’s obligations under the Security Agreement and includes a purchase money security interest; and

(vii) “Customer” includes the meaning given to “grantor” under the PPSA;

(i) words and phrases not defined in these Terms and Conditions will have the meaning given to them in the PPSA.

13. Default

If the Customer:

(a) fails to make any payment in accordance with these Terms and Conditions by the date it falls due;

(b) fails to comply with any of these Terms and Conditions;

(d) being a corporation, passes a resolution for winding up or liquidation or enters into any composition or arrangement with creditors or if a receiver including a provisional receiver, or receiver and manager, trustee or administrator is appointed for any property or assets or becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up;

(e) has execution levied against it; or

(f) ceases or threatens to cease carrying on a business,

(g) then the Customer will be in default under these Terms and Conditions and PolyGuru may, without prejudice to any other remedy available to it under these Terms and Conditions or in law or equity do one or more of the following:

(h) charge the Customer interest on any sum due at the rate specified in clause 4(e), calculated daily and capitalised weekly, for the period from the due date until the date of payment in full;

(i) immediately recover possession of any goods not paid for in full (and the Customer authorises, or will procure relevant authority for, PolyGuru or its agents);

(j) charge the Customer for, and the Customer must indemnify PolyGuru from, all costs and expenses (including without limitation all legal costs and disbursements on an indemnity basis) incurred by it resulting from the default or in taking action to enforce compliance with the Terms or to recover any goods;

(k) cease or suspend for such period as PolyGuru thinks fit, supply of any further goods to the Customer;

(l) by notice in writing to the Customer, suspend or terminate any contract with the Customer so far as unperformed by PolyGuru;

(m) require the payment of cash before or on delivery of any further goods;

(n) require that all money owing to PolyGuru, regardless of the due date, become immediately due and payable; and/or

(o) sue the Customer for breach of contract,

(p) without effect on the accrued rights of PolyGuru under any contract.

14. Miscellaneous

(a) The termination of any contract between PolyGuru and the Customer will not:

(i) relieve the Customer of their obligations to pay any money due under these Terms and Conditions; or

(ii) affect any provision contained in these Terms and Conditions which expressly or by implication is to become operative or continue to operate after the contract is terminated.

(b) The Customer agrees that all contracts made with PolyGuru will be deemed to be made in the State of Victoria and the Customer agrees to submit to the jurisdiction of appropriate courts and tribunals in that State.

(c) The provisions of these Terms and Conditions will be separate and severable from each other to the extent that if any provision or provisions are unenforceable they will be read down so as to be enforceable or, if it cannot be so read down, they will be severed from these Terms and Conditions without affecting the enforceability of the remaining terms.

(d) Failure by PolyGuru to enforce any of these Terms will not be construed as a waiver of any of PolyGuru’s rights.

(e) All notices, requests, consents, approvals, reports, offers or other communications given under these Terms and Conditions must be in writing and:

(i) delivered personally, by prepaid post, email or facsimile transmission to the party’s last known street or postal address, email address or facsimile number; and

(ii) will be considered to have been received if:

(iii) delivered personally, on delivery;

(A) sent by prepaid post, on posting, notwithstanding that it may subsequently be returned through the Post Office unclaimed;

(iv) sent by facsimile transmission, on production of a transmission control report indicating transmission without error; or

(v) sent by email, on receipt by the sender of confirmation on its computer that the message has been delivered.

(f) Unless the context indicates otherwise, a reference in these Terms and Conditions to:

(i) the singular includes the plural and vice versa;

(ii) any agreement, warranty, representation or obligation which binds or benefits 2 or more persons, binds or benefits those persons jointly and severally;

(iii) a person includes corporations all bodies and associations corporate or unincorporated and vice versa;

(iv) “includes” means “includes without limitation” or “including” means “including without limitation”;

(v) “$” or “dollars” is a reference to the lawful currency of Australia.

(g) No agent, employee or representative of PolyGuru will have any authority whatsoever to bind PolyGuru to any affirmation, representation, warranty or condition concerning the goods sold under these Terms and Conditions unless such affirmation, representation, warranty or condition is specifically included in writing within these Terms and Conditions.

15. Jurisdiction

(h) These Terms and Conditions are governed by and construed in accordance with the laws of the State of Victoria, Australia. In the event that a dispute arises from these Website Terms and Conditions, PolyGuru and yourself agree to submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.