Terms and Conditions

Opie Manufacturing Group Pty Limited ACN 003 951 004 and its subsidiary and associated companies (including but not limited to Stainless Metal Craft (Aust) Pty Ltd ACN 121 322 683 and Laser and Press Pty Limited ACN 122 660 066), and its successors and assigns (OMG) is not bound by any variation to its Terms unless expressly agreed upon in writing and signed by a duly authorised Representative of OMG and the Applicant.  These Terms herein shall apply notwithstanding any provision to the contrary which may appear on any order form or other document issued by the Customer or any other party.  OMG may at any time and from time to time alter these Terms and the Customer agrees that it will be deemed to have notice of any change to these Terms and to be bound by any subsequent versions of these Terms as they appear on www.opiegroup.com.au, whether or not the Customer has actual notice or not.

A copy of the current version of the Terms and Conditions may also be obtained by request at each of Opie Manufacturing Group’s .

1. DEFINITIONS

1.1   “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Commonwealth).

1.2   “Customer” means you the Applicant, Debtor, Customer and Purchaser of Opie Manufacturing Group’s.

1.3   “Goods” means any goods supplied and/or services provided in respect of those Goods by OMG to the Customer or Guarantor.

1.4   “Guarantor(s)” means the persons so named in the Deed of Guarantee and Indemnity and/or Credit Application (which forms part of these terms and conditions).

1.5   “PPSA” means the Personal Property Securities Act (Cth) 2009 and as amended.

2. SECURITY INTEREST

2.1   If a term used in this clause has a particular meaning in the PPSA, it has the same meaning in this clause.

2.2   The Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by OMG to the Customer. The Customer acknowledges and agrees that OMG may apply to register a security interest in the Goods at any time before or after delivery of the Goods. The Customer waives its rights under s157 of the PPSA to receive notice of any verification of the registration.

2.3   The Customer undertakes to –

(a)   promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which OMG may reasonably require to –

(i)     register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii)    register any other document required to be registered by the PPSA;  or

(iii)   correct a defect in a statement referred to in clause 2.3(a)(i) or 2.3(a)(ii);

(b)   indemnify, and upon demand reimburse, OMG for all expenses incurred in registering a financing statement or financing change statement or security interest on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;

(c)   not register a financing change statement in respect of a security interest between the parties without the prior written consent of OMG;

(d)   not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of OMG;

(e)   immediately advise OMG of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

2.4   OMG 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.

2.5   The Customer waives their rights to receive notices under sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) 135, 142 and 143 of the PPSA.

2.6   The Customer waives their rights as a guarantor and/or a debtor under sections 142 and 143 of the PPSA.

2.7   The Customer must unconditionally ratify any actions taken by OMG under clauses 2.3 to 2.5.

2.8   Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

3. QUOTATIONS, PRICES, SUPPLY

3.1   No quotation given by OMG shall constitute an offer and is to be treated as an estimate only.

3.2   At OMG’s sole discretion the Price shall be either:

(a)   as indicated on invoices provided by OMG to the Customer in respect of Goods supplied; or

(b)   OMG’s quoted price (subject to clause 3.9) which shall be binding upon OMG provided that the quote was provided to the Customer in writing and the Customer has accepted OMG’s quotation in writing, identifying the Customer and the number of the quotation and an order number, within 30 days of the date of the quote.

3.3   Day labour is to be charged out at previously agreed man hour rates.

3.4   Unless otherwise agreed in writing, material supplied is to be charged out at cost plus 17.5%.

3.5   OMG is entitled to recover from the Customer as a debt due or owing, all costs, losses and expenses incurred by OMG as a result of, arising out of, or in connection with, any act, default or omission of the Customer, their agents, servants, contractors, subcontractors, consultants, representatives and others for whom they are responsible.

3.6   OMG will not be obliged to undertake any work additional to that which forms the subject matter of an accepted quote or order without the prior written instruction from the Customer and such instructions, if accepted, will operate as a variation of the customers quote or order, as applicable. OMG will not be required to undertake any work in relation to the variation prior to the Customer’s acceptance of the price of any variation.

3.7   In determining the value of any variation, OMG reserves the right to be credited with a reasonable allowance for the overhead and profit on all items whether added or omitted.

3.8   The Customer must not request any reduction in their account with OMG for any costs incurred on behalf of, or following from any act or omission of, OMG or its agents, servants, subcontractors or representatives.

3.9   OMG may vary the price of an order in the event of any variation to the Customer’s order (as per Claus 3.6 & 37) and any increases arising from increases in any duties, taxes, foreign or domestic exchange rates, import and delivery costs, and the costs of complying with all legislation, ordinances, regulations and by laws from the date of the Customer’s quotation.

3.10 Orders cannot be cancelled without the written consent of OMG.

3.11 If a Customer cancels any order for Goods after OMG has received the order then OMG reserves the right to charge to the Customer the costs incurred in cancelling any order or part order (including loss of profit) together with the costs incurred to the date of such cancellation.

3.12 Unless otherwise stated, prices quoted are in Australian dollars and are exclusive of GST, freight, crating, crane hire, labour in loading/unloading, storage, insurance, installation, and handling charges, where applicable, which shall be added to the price of the goods.

3.13 Prices shown in price lists are subject to change. Any change to the price list will be effective within 7 days of notice of such change.

3.14 OMG reserves the right to decline any order for Goods when the size of the order or the requested delivery date inhibits or prejudices OMG’s ability to fulfil its contractual commitments to its franchises, licences or other Customers.

3.15 OMG reserves the right to sub-contract the manufacture and/or supply of any part of the Goods quoted or of any materials or services to be supplied.

3.16 Any sample produced at the request of the Customer, will be at the Customer’s expense. Such sample produced is to be indicative of the general nature of the product and OMG will not warrant or guarantee that the sample product will correspond with any colour, texture, design or blend with the sample provided by the Customer or with any previous sample provided.

3.17 Upon the placement of an order, or the acceptance of a quote (in accordance with clause 3.2(b)), or as otherwise agreed in writing, the Customer must supply to OMG such particulars as are necessary for OMG to execute and supply the Goods, including but not limited to dimensions, drawings and specifications. The Customer grants a licence to OMG to use such drawings and specifications for the purpose of fulfilling the Order. The Customer warrants that it has the rights to such drawings and specifications. The Customer shall indemnify and hold indemnified OMG against any claim, suit, proceedings or demand made by a third party for loss or damage suffered whether directly or indirectly by infringement of its intellectual property rights.

3.18 OMG reserves the right to make minor alterations to the requests, details and specifications provided by the Customer to allow the use of their available standard size material and tooling.

3.19 Where any special accuracy or finish is required OMG may treat the same as a variation to the order and charged the Customer accordingly.

3.20 Unless otherwise agreed in writing (which will be treated as a variation and charged to the Customer accordingly), OMG is only bound to complete the Goods within reasonable and normal trade tolerances and finishes.

3.21 Unless otherwise agreed in writing (which will be treated as a variation and charged to the Customer accordingly) OMG is only required to perform work on, or complete the Goods, during OMG’s normal working hours.

3.22 Irrespective of whether a time is specified for completion of the Goods, OMG reserves the right to extend the time for completion of the works if OMG, in its sole discretion, considers it reasonable due to some matter, event, cause or thing outside of its control, such as (but not limited to): instructions, variations or lack of instructions or information from the Customer, industrial disputes, war, health or health related pandemic orders, interventions imposed by any laws, regulations, governments or agencies, inclement weather or failure to obtain access to or sufficient possession of any site.

4. TERMS OF PAYMENT

4.1   The granting of credit to a Customer shall be at the absolute discretion of OMG and unless otherwise demanded by OMG, the Customer shall make payment within 30 days from the end of month in which the Goods are invoiced to the Customer. Any credit facilities granted to a Customer may be withdrawn on overdue accounts at OMG’s discretion without notice to the Customer.

4.2   Payment will be made by cash or by cheque or by bank cheque or by credit card (plus the applicable credit card surcharge fee) or by direct credit or by any other method as agreed to between OMG and the Customer.

4.3   At intervals of not less than 7 days OMG may provide the Customer with progress payment claims with respect to the value of the Goods.  If a progress payment claim is made, the Customer must pay such payment claim in the manner and timeframe set out in the payment claim.

4.4   Where a Customer has not been approved for credit (as per Clause 4.1) and unless otherwise agreed in writing payment is to be made in the following manner;

(a)   Payment of a deposit of 50% of the quotation price shall be due upon placing the order for Goods;

       (b)   Payment shall be due within 7 days of delivery of a progress payment claim;

(c)   Final payment shall be due on the completion of the order in OMG’s factory subject to the reasonable satisfaction of the Customer or agent on inspection of the Goods at OMG’s premises (or other premises, as applicable).

4.5   If the Customer fails to make payment in accordance with Clause 4, OMG shall be entitled to:

• Require the payment of cash upon delivery of any further Goods.
• Charge interest at the rate of twelve per centum (12%) per annum on a cumulative basis on all overdue amounts (including late payment charges and amounts other than the prices) calculated on a day to day basis on any monies due but unpaid, such interest to be computed from the due date for payment AND the parties agree that such charges shall be payable on demand.
• Claim from the Customer all costs relating to any action taken by OMG to recover monies or goods due from the Customer including any mercantile agents costs and legal costs and disbursements on a solicitor client basis; and
• Cease any further deliveries to the Customer and to terminate any agreement in relation to Goods that have not been delivered.

4.6   The Customer must not set off or otherwise withhold any moneys due and payable to OMG.

5. DELIVERY

5.1   At OMG’s sole discretion delivery of the Goods shall take place when:

(a)   The Customer takes possession of the Goods at OMG’s address;

(b)   The Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by OMG or OMG’s nominated carrier); or

(c)   The Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.

5.2   Any date or time quoted for delivery is an estimate only and OMG shall endeavour to effect delivery at the time or times requested by the Customer but failure to do so shall not confer any right of cancellation or refusal of delivery by the Customer or render OMG liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof.

5.3   The Customer shall not be relieved of any obligation to accept or pay for products by reason of any delay in delivery or any strike, lockout, unavailability of raw materials, accidents to machinery, differences with workmen, breakdowns, shortages of supplies or labour, fires, floods, storm or tempest, transport delays, acts of God, restrictions or interventions imposed by any laws, regulations, governments or agencies thereof and any other cause beyond the control of OMG or any other cause whatsoever.

5.4   OMG reserves the right to decide, and without notice vary, the means, route and procedure of delivery, transport and handling of the Goods to be delivered. Where OMG has agreed to deliver the Goods then OMG’s obligation to deliver shall be discharged on arrival of the products at the Customer’s nominated delivery destination, nominated transport company, nominated agent or the address appearing on the invoice, and the Customer will be deemed to have taken possession of the Goods.

5.5   If the quote provided by OMG to the Customer includes delivery then the Goods will be delivered to the kerbside of the Customer’s nominated address and unloading and handling of the Goods will be the responsibility of the Customer.

5.6   If the Customer is unable or unwilling to accept physical delivery of the Goods when the Goods are ready for delivery, OMG shall, at the risk and cost of the Customer, be entitled to:

(a)   leave the Goods at the kerbside of the nominated delivery address at the risk of the Customer;

(b)   charge a fee for any delay experienced; or

(c)   arrange for the storage of the Goods and recover from the Customer all associated costs including but not limited to all transportation, storage and other consequential costs.

5.7   OMG may at its discretion make and invoice partial deliveries and each partial delivery shall be a separate delivery pursuant to these terms and conditions.

6. INSPECTION

6.1   The Customer must examine the Goods at OMG’s factory premises prior to making the final payment unless the Goods are to be delivered.

6.2   If the Goods are to be delivered, the Customer shall examine the Goods immediately after delivery and will, within seven (7) days of the date of delivery, notify OMG in writing of any alleged defect, mis-delivery, shortage in quantity, damage or failure to comply with the description, quote or order.

6.3   The Customer shall afford OMG an opportunity to inspect the Goods as delivered within a reasonable time following delivery if the Customer believes the Goods are defective in any way.

6.4   If the Customer fails to comply with these provisions, the Goods shall be presumed to be free from any defect or damage.

6.5   No claim by the Customer for failure to supply Goods conforming to the Customer’s orders will be recognised by OMG unless made in accordance with this clause 6.

6.6   No claim involving labour charges or product replacement will be recognised by OMG unless OMG has agreed to the value of the claim and OMG has been given sufficient time to investigate and take such action it feels necessary to solve the problem.

6.7   No claims will be recognised by OMG for any loss or damage or injury of any kind whatsoever arising directly or indirectly from the Customer’s failure to obtain independent professional and or tradesman advice in relation to the suitability of the Goods for any specific purpose.  The Customer must rely on its own knowledge and expertise in selecting Goods for any purpose.  OMG are not experts and any advice or assistance given by OMG is accepted by the Customer at the Customer’s own risk.

6.8   OMG shall not be liable to the Customer for any loss of profits or consequential, indirect or special loss, damage or injury of any kind whatsoever, arising directly from any defect in the Goods or their installation (regardless of any express or implied terms, or by reason of the Customer’s negligent act or omission or otherwise at common law.)

6.9   For defective Goods, which OMG has agreed in writing that the Customer is entitled to reject, OMG’s liability is limited to either (at OMG’s sole discretion) replacing the Goods or repairing the Goods.

6.10 Goods will not be accepted for return other than in accordance with this clause 6 and clause 13.

7. TITLE AND RISK

7.1   It is the intention of OMG and agreed to by the Customer that ownership of the Goods shall not pass until:

(a)    The Customer has paid all amounts owing for the particular Goods (including all applicable GST, sales taxes and other taxes, levies and duties); and

(b)    The Customer has met all other obligations due by the Customer to OMG in respect of all contracts between OMG and the Customer.

7.2   Any payment made by or on behalf of the Customer which is later avoided by the application of any statutory provision shall be deemed not to discharge the Customer’s indebtedness and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.

7.3   If OMG retains ownership of the order nonetheless, all risk for the Goods passes to the Customer upon the completion of the Goods in accordance with clause 4.4(c) or, where OMG has agreed to deliver the Goods, when the Goods are loaded for delivery at OMG’s premises (or other premises, as applicable).

7.4   The Customer must insure the Goods for their full replacement value against loss or damage by fire, theft, or otherwise, until title passes to the Customer and such insurance must note OMG’s interest.

7.5   If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, OMG is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms and Conditions by OMG is sufficient evidence of OMG’s rights to receive the insurance proceeds without the need for any person dealing with OMG to make further enquiries.

7.6   The Customer acknowledges that it is in possession of the Goods solely as a bailee for OMG until payment has been made in full to OMG and until such payment the Customer shall store the products separately from its own goods and those of any other party and in a manner which clearly identifies the Goods, whether as separate chattels, or as components, as the property of OMG, and must return the Goods to OMG (at the Customers cost) in good order and “as new” condition upon default of any payment as it falls due.

7.7   The Customer hereby irrevocably grants to OMG, its agents and servants, an unrestricted right and licence, without notice, to enter premises occupied by the Customer to identify and remove any of the Goods the property of OMG (at the Customers cost) in accordance with these terms without in any way being liable to the Customer or any person claiming through the Customer.  OMG shall have the right to sell or dispose of any such Goods removed or otherwise in its sole discretion and shall not be liable for any loss occasioned thereby.

7.8   OMG licenses the Customer to sell products manufactured using Goods of OMG.  If the Goods are affixed to other material, the totality thereof shall be the sole and exclusive property of OMG until payment has been made in full to OMG, unless the other material or part thereof are, or is, the property of a party or parties other than the Customer on which case the totality thereof shall be deemed to be owned as tenants in common with such other party or parties other than the Customer in shares corresponding to the respective amounts paid or payable by the Customer in respect of such other party or parties.

7.9   The Customer shall be at liberty to agree to sell the Goods (independently or affixed to other materials) subject to the condition that until payment has been made, the Customer shall sell as an agent and bailee for OMG and that the entire proceeds from the sale thereof shall be held in a separate account on trust for OMG.

7.10 The right to on-sell or otherwise dispose of the Goods in the normal course of trade may be revoked at any time by OMG and shall automatically cease if a Receiver is appointed over any of the assets or the undertaking of the Customer or if a winding up order is made against the Customer or if the Customer goes into Voluntary Administration or Liquidation (otherwise than for the purpose of reconstruction or amalgamation) or calls a meeting of or makes any arrangement or composition with creditors or commits any act of bankruptcy or where the Customer is in default of any of its obligations to OMG.

8. ACCESS AND INSTALLATION

8.1   Where OMG requires access to a site to conduct measurement or installation activities, delivery of the Goods, or other such activities as are reasonably necessary to complete the Goods, the Customer must do everything necessary to ensure that OMG has sufficient access to, and licence to access, the site to conduct such activities in an orderly, sequential and uninterrupted fashion.

8.2   Where OMG is required to undertake installation activities the following shall apply:

(a)   OMG may place the Goods in position and if necessary, in the sole discretion of the Consumer, bolt them into place;

(b)   Unless otherwise agreed in writing OMG shall not be obliged to supply any additional or ancillary goods or services, including but not limited to, joinery, plumbing, electrical, labour, materials, mountings for fans, or flashings for joints, or undertake work in connection with the removal of windows, or the penetrations of walls or ceilings.

(c)   Unless otherwise agreed in writing each order covers only one visit to the site where the site is outside the Sydney Metropolitan area;

(d)   The customer must ensure that:

       (i)  all reasonable facilities including but not limited to water, power, electric lighting, craneage, hoisting, scaffolding, first aid, meal room, and ablution services are erected, available, and if necessary relocated, as applicable, at no cost to OMG;

       (ii) OMG may undertake its activities in an uninterrupted, orderly and sequential fashion; and

       (iii) all other persons working at, managing or associated with the site co-operate, and coordinate their work with the requirements of OMG.

8.3 Where OMG is required to undertake installation and the Customer has not complied with clause 8.2(d), then the Customer indemnifies and holds indemnified OMG against any claim, suit, proceedings or demand made (including by a third party) for loss or damage suffered whether directly or indirectly by the installation.

8.4 OMG bears no responsibility or liability for any installation of the Goods that occurs by the Customer or any third party. The Customer agrees that any installation of the Goods must be conducted in accordance with the requirements of the Goods, whether specified in any installation manual or otherwise advised in writing by OMG.

8.5 The Customer will be solely responsible for the cleaning and maintenance of the Goods.

8.6      With respect to any installation works, replacement works, rectifications works or any works associated with the Goods conducted by OMG (including any works relating to returns), the Customer releases OMG of any liability for any damage caused to the site where the Goods are installed that is caused by the removal of the Goods.

8.7      The Customer must pay for any costs associated with any damage caused to the site by the removal/uninstallation of the Goods. For the purposes of clarity, this includes but is not limited to any structural damage for the purposes of access, including the breaking and repairing of walls to access pipelines.

9. WARRANTY

9.1   Where the OMG manufactures the Goods, OMG warrants that if there is a defect in the Goods and such defect is due to OMG’s defective workmanship which is reported to OMG within three (3) months of the date of delivery (time being of the essence) then the OMG will either (at OMG’s sole discretion) replace or remedy the workmanship subject to the following conditions are met:

• The Customer has paid all of its accounts owing under this Agreement;

• The Customer, at it owns cost, arranges for those Goods to be provided to OMG at OMG’s factory for repair/replacement (the details of OMG’s factory will be provided by OMG upon review of the written notice given by the Customer), including de-fitting and/or uninstalling the Goods from any connections.

9.2   The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:

• failure on the part of the Customer to properly maintain any Goods;

• failure on the part of the Customer to follow any instructions or guidelines provided by OMG;

• failure on the part of the Customer to appropriately store any Goods prior to installation or use;

• any use of any Goods otherwise than for any application specified on a quote or order form;

• the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user

• Where the Customer has installed the Goods and have affixed any third party items or products to the Goods;

• Where the Customer has installed the Goods, and they have done so not in accordance with the manuals and instructions from OMG;

• The Customer has modified, varied or changed the Goods from that which was provided by OMG;

• fair wear and tear, any accident or act of God.

9.3 The warranty shall cease and OMG shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the OMG’s consent.

9.4 In respect of all claims OMG shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.

9.5              For Goods not manufactured by OMG, OMG provides no warranty or guarantee that the warranty policies of any third party relating to the Goods will apply to the Customer. Subject to payment in full being made as defined in Clause 4, OMG shall use its best endeavours to pass on to the Customer the benefit of any warranties or guarantees it receives from third parties in respect of products thereof supplied to the Customer which are not of OMG’s production. OMG shall not be bound by nor be responsible for any term, condition, representation or warranty given by the manufacturer of the Goods.

10. LIMITATION OF LIABILITY

10.1        OMG will not be liable to the Customer for any indirect or consequential damages including loss of profits, revenue or data arising out of or in relation to the supply of Goods or Services, even if OMG knew or should have known of the possibility of such loss or damage and whether damages are claimed in contract, tort (including negligence) or statute.  Except in relation to liability for personal injury (including sickness and death), or damage to tangible property, OMG’s liability to the Customer in respect of any loss or damage (including consequential or indirect loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of Good or Services shall be, in aggregate, limited to an amount equal to the amount paid by the Customer to OMG.

10.2        To the fullest extent permitted by law, the parties agree to exclude any terms which would otherwise be implied into these terms by any statute.  The liability of OMG for a breach of a condition or warranty implied into these terms by the Australian Consumer Laws is limited at the option of OMG:

(a)       if the breach relates to goods, to the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired.

(b)       if the breach relates to services, the supplying of the services again or the payment of the cost of having the services supplied again.

10.3 Except for those conditions and warranties implied by the Australian Consumer Law or consumer protection legislation which can not be excluded, the Customer agrees that:

(a)       It has not relied on any inducement, representation or statement made by or on behalf of OMG in purchasing the Goods and there are no implied conditions or warranties herein and no collateral contracts in connection herewith (except such as may be in writing and signed by a duly authorised representative of OMG).

10.5 Except as prohibited by law, the Customer must within 14 days of the occurrence of the first event of circumstances giving rise to a claim, suit, proceedings or demand serve written notice on OMG of those circumstances with detailed particulars.

10.6 Subject to clause 19.4 the Customer agrees that these terms and conditions may be produced or pleaded, as applicable, as a bar to any claim, suit, proceedings or demand, or to any entitlement to the same, if the conditions in clause 10.5 are not met.

10.7 This clause 10 sets out the entire liability of OMG in respect of its liability under the Australian Consumer Law or otherwise in respect of liabilities to the consumer for a breach of a condition or warranty with respect to the sale of Goods. In no circumstances will OMG incur any liability in respect of, arising out of, or in connection with, any special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred by the consumer and/or Customer.

11. FORCE MAJUERE

11.1 OMG shall not be liable for any failure or delay to supply or deliver the Goods where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of OMG including, but not limited to, war, strikes, lockouts, lockdowns, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind.

12. TERMINATION

12.1 If the Customer fails to comply with any of these terms and conditions, OMG may, in addition to exercising all or any of its rights against the Customer, suspend any further deliveries and immediately recover possession of any Goods not paid for in accordance with these terms and conditions.

12.2 In addition to exercising all or any of its rights against the Customer, OMG may suspend any further deliveries and immediately recover possession of any Goods not paid for in accordance with these terms and conditions and by notice in writing, terminate any order or agreement with the Customer if the Customer:

(a)   is in breach of any order or agreement and fails to remedy the breach within 14 days of notice in writing specifying the breach and requesting its remedy;

(b)   fails or refuses to take delivery of Goods to be supplied pursuant to an order;

(c)   commits an act of bankruptcy, or passes a resolution for Voluntary Administration or winding up or liquidation (other than for the purposes of reorganisation or reconstruction) or enters into any composition or arrangement with creditors or if a receiver or manager is appointed for any property or assets of the Customer or becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up, or if a liquidator or provisional liquidator is appointed; or

(d)   is insolvent.

13. RETURNS

13.1 Subject to clause 6, custom made, or made to order, products are non returnable.

13.2 Only product not made to order with a total return value equal to or greater than $400.00 plus GST and excluding restocking fee may be returned and only with the Customer’s written acceptance of a Customer Return Document (CRD). Goods may only be returned for credit.

13.3 The CRD will specify the terms under which OMG will agree to accept the return of the Goods.

13.4 OMG may only complete a CRD where the following conditions are met:

       (a)   only the Customer of OMG may return the Goods;

       (b)   the Customer must provide OMG with their purchase order number;

       (c)   the Goods must be unused and still in “as new” saleable condition; and

(d)   the Customer must make their return request in writing within 3 weeks of the OMG despatch date.

13.5 While a CRD will typically contain the following terms they are subject to amendment at the sole discretion of OMG:

(a)   The Customer must pay to OMG a Restocking Fee of 40% of the original order value of the Goods;

(b)   The Customer must provide OMG with written acceptance of the terms of the CRD (as amended by OMG) prior to proceeding with the return of the Goods;

(c)   The Goods must be returned within 10 business days of the Customer’s written notice of their acceptance of the CRD terms (after which time the CRD will lapse);

(d)   The costs of returning the Goods to OMG, including but not limited to packing costs and freight costs, are to be paid by the Customer; and

(e)   The Goods will be inspected by OMG upon their return to confirm that they are fit for resale without additional work and:

(i)  where the Goods are fit for resale without additional work OMG will confirm a credit amount and issue a credit adjustment note; and

(ii) where the Goods are not fit for resale without additional work OMG may charge an additional fee and amend the restocking fee before confirming the credit amount and issuing a credit adjustment note.

14. Privacy Policy
    • The Customer agrees to be bound by the Privacy Policy of OMG and understands that this Privacy Policy forms part of these terms and conditions and invokes the provisions of the Privacy Act 1988 (Cth). A copy of this Privacy Policy is available on request.
    • The Customer authorises OMG to obtain from a credit-reporting agency a credit report containing personal credit information about the Customer in order to enable OMG to assess the credit application or to review any existing credit provided by OMG.
    • The Customer authorises OMG to exchange information about the Customer with other Group Companies.
    • The Customer authorises OMG to exchange information about the Customer with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for any of the following purposes:
      • To assess an application by the Customer.
      • To notify other credit providers of a default by the Customer.
      • To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers.
      • To assess the creditworthiness of Customer.
    • The Customer agrees that personal information provided may be used and retained by OMG for the following purposes and for other purposes as agreed between the Customer and OMG or required by law from time to time:

• Marketing of further goods or products by OMG, its agents or distributors;
• Analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of the Goods;
• Processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
• Enabling the daily operation of the Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
  • OMG may give information about the Customer to a credit reporting agency for the following purposes:
• To obtain a consumer credit report about the Customer.
• To allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
  • The Customer acknowledges that OMG’s website may be hosted, or some data may be stored overseas for reasons of uniformity between Group Companies. All information derived from Australia will still be treated in accordance with OMG’s Privacy Policy while being stored overseas.

15. ADVERTISING

15.1 The Customer shall not advertise in any media the sale or disposal of Goods purchased from OMG, without the written consent of a duly authorised Representative of OMG.  The Customer shall indemnify and hold indemnified OMG against any liability in respect of or in connection with any special, consequential, direct or indirect loss, damage, harm or injury suffered as a result of false, misleading or deceptive advertising and untrue representation or statements made to any person by the Customer in the course of advertising.  The Customer further warrants and acknowledges that it will not use any existing logo or brand name or that similar to, or attempt to register a trade mark or name similar to those used or owned by OMG without the written consent of a duly authorised Representative of OMG.

16. CONFIDENTIAL INFORMATION

16.1 The Customer warrants that it will not disclose to any person confidential information of OMG that the Customer may be shown or comes into contact with in the course of purchasing Goods from OMG or from any other source including but not limited to OMG’s materials, procedures, tests, reports and equipment, without the written consent of a duly authorised Representative of OMG.

17. GOVERNING LAW

17.1 The Customer agrees that these terms shall be construed according to the laws of New South Wales.

17.2 The Customer submits to the exclusive jurisdiction of the Courts of New South Wales and the Commonwealth of Australia.

18. SERVICE OF DOCUMENTS

18.1 The Customer agrees that service of any notices or Court documents may be effected by forwarding the same by pre-paid post or facsimile to the last known address of the Customer.

19. STATEMENT OF DEBT

19.1 A written Statement of Debt duly signed by an authorised representative of OMG shall be prima facie evidence and proof of the amount of indebtedness by the Customer to OMG at that time.

20. MISCELLANEOUS

20.1 OMG reserves the right to remove any protective plastic coating the materials used to protect the materials and is not required to clean the Goods whether or not the plastic is removed.

20.2 These terms and conditions bind any Guarantor to the agreement as though the Guarantor were the original contracting party.

20.3 The Customer must use its best endeavours to perform all cooperative acts to bring about the contractual result.

20.4 Any dispute arising in connection with an order or agreement adopting these terms and conditions which is not resolved within 14 days of the written notice of the dispute will be referred to the arbitration of a nominee of the President of the Institute of Arbitrators Australia, which will be conducted in accordance with the Rules of Conduct for Commercial Arbitrations of that Institute.