(a) The Customer must pay for all purchases on delivery, or (if Credit Terms have been extended or Wilson Timbers otherwise agrees in writing prior to delivery) within 30 days from the end of the month in which the invoice is generated, or within any alternative credit period granted in writing by Wilson Timbers.  Amounts payable by the Customer under the Credit Terms must be paid in full without deduction, retention or set-off of any kind and for any reason. 

(b) For the avoidance of doubt, the time for payment may be (at Wilson Timbers’ discretion and without prejudice to the foregoing) as directed by Wilson Timbers:

(i)      on delivery of the goods;

(ii)     before delivery of the goods;

(iii)    by way of instalments/progress payments in accordance with Wilson Timbers’ payment schedule;

(iv)    the date specified on any invoice or other form as being the date of payment; or

(v)     otherwise in accordance with paragraph 1(a) of these Trading Terms.

(c) At Wilson Timbers’ sole discretion, a non-refundable deposit may be required.

(d) Payment may be made by cash, cheque (at Wilson Timbers’ discretion), electronic/online banking, credit card (which will include a surcharge of up to 2% of the total price, with a minimum surcharge of $10.00 per transaction) or by any other method agreed to by Wilson Timbers in writing. 

(e) Time for payment of any goods is of the essence. 

2.      Price: 

(a) At Wilson Timbers’ sole discretion, the price shall be either:

(i)   As indicated on any invoice provided by Wilson Timbers to the Customer; or

(ii)  The price as at the date of delivery of the goods according to Wilson Timbers’ current price list; or

(iii) Wilson Timbers’ quoted price, which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days unless withdrawn earlier.

(b) Unless stated otherwise, the price does not include GST, which is payable in addition to the price in accordance with clause 5 of these Trading Terms.

3.      Quotations: 

(a) Any quotation given by Wilson Timbers must be in writing.

(b) All quotations issued by Wilson Timbers are based on the then current prices and are subject to availability.

(c) Unless otherwise specified in writing or withdrawn earlier, any quotation issued by Wilson Timbers will be valid for 30 days. 

(d) Wilson Timbers may change the price in any quotation if a variation to Wilson Timbers’ quotation is requested, or at any time prior to receipt of any order in respect of the quotation. 

(e) Quotations will not be construed as an offer or obligation to supply in accordance with the quotation.  Wilson Timbers may, at its discretion, reject any order to purchase received by it.

(f)  In the event that Wilson Timbers forms the view that the subject matter of a quotation is to form part of a larger transaction or series of transactions and/or the circumstances giving rise to the quotation have materially changed, Wilson Timbers will not be bound by the quotation.

(g) The Customer must pay any reasonable fees and charges, as advised by Wilson Timbers at its discretion, relating to the holding of any Products referred to in a quotation pending placement of an order. 

4.      Interest and Administration fee:  Wilson Timbers is entitled to charge the Customer:

(a) interest on amounts not paid within the credit period specified by Wilson Timbers at a rate equivalent to 3% p.a. above the annual business overdraft interest rate of its principal banker, as determined and calculated by Wilson Timbers, in its discretion; and

(b) if any account remains unpaid at the end of the second month after the invoice is generated, an immediate amount the greater of $20.00 or 10.0% of the amount overdue for administration fees, which sum shall become immediately due and payable.  The Customer acknowledges that this fee is a genuine pre-estimate by Wilson Timbers of the loss, costs and expenses which shall be incurred by reason of the Customer’s default in payment and the recovery thereof.

5.      GST:  Each amount payable by the Customer under the Trading Terms in respect of a Taxable Supply by Wilson Timbers is a GST exclusive amount and on receipt of a tax invoice the Customer must, in addition to that amount and at the same time, pay the GST payable in respect of that supply.  “Taxable Supply” and “GST” have the meanings set out in the A New Tax System (Goods and Services) Act 1999 (Cth).

6.      Withdrawal or Variation of Credit:  Wilson Timbers may at any time, without the need to provide a reason, vary or withdraw any credit granted to the Customer. Where the Customer completes a further Application for a Commercial Trading Account, that Application will not be in derogation of but in addition to any previous general Trading Terms existing except as notified by Wilson Timbers (or any of its related entities, subsidiaries and assigns and as Trustee of any Trust) in writing.

7.      Charge over Customer’s Property:  As security for payment to Wilson Timbers of all moneys payable by the Customer and for the Customer’s obligations generally under these Trading Terms, the Customer charges in favour of Wilson Timbers the whole of the Customer’s undertaking, property and assets (including without limitation all of the Customer’s interests, both legal and beneficial, in freehold and leasehold land) both current and later acquired.  The Customer irrevocably appoints each Officer as the Customer’s attorney to do all things necessary to create and register each such charge.  Upon demand by Wilson Timbers, the Customer agrees to immediately execute a mortgage or other instrument in terms satisfactory to Wilson Timbers to further secure payment of the money payable by the Customer.  If the Customer fails within a reasonable time of such demand to execute such mortgage or other instrument, then the Customer acknowledges that Wilson Timbers may execute such mortgage or other instrument as the Customer’s attorney pursuant to the appointment of Wilson Timbers as the Customer’s attorney set out in these Trading Terms.

8.      Suspension or Ceasing of Supply:

(a) Wilson Timbers may in Wilson Timbers’ complete discretion and without incurring any liability to the Customer, cease or suspend supply of Products to the Customer or amend these Trading Terms. 

(b) Without limiting clause 8(a), if an Event of Default occurs, Wilson Timbers may, without prejudice to Wilson Timbers’ other rights, call up moneys owed to Wilson Timbers by the Customer, retain all moneys paid on account, or cease further deliveries and recover from the Customer all loss of profits and other costs arising from the Event of Default and/or take immediate possession of any Products for which payment remains outstanding.

(c) Upon cancellation, cessation or suspension of supply by Wilson Timbers to the Customer, all amounts due, owing or payable pursuant to these Trading Terms become immediately due and payable by the Customer to Wilson Timbers.

(d) Wilson Timbers may cancel any quotation, agreement, contract or arrangement to which these Terms and Conditions apply, and/or may cancel the delivery of Products at any time before the Products are delivered by giving written notice to the Customer.

(e) Wilson Timbers shall not be liable for any loss, damage, claim or monies arising out of or in connection with any cessation, cancellation or suspension of supply to the Customer. 

(f)  Subject to these Trading Terms, the Customer may make a request to cancel any order and/or the supply or delivery of Products up to forty-eight (48) hours prior to the proposed delivery date (or as otherwise advised by Wilson Timbers in writing).  The acceptance of the request to cancel any order and/or the supply or delivery of Products will be at Wilson Timbers’ discretion. 

(g) In the event that a cancellation of order requested by the Customer is accepted by Wilson Timbers, the customer will remain liable for any and all loss, damage, claim and/or monies (including, but not limited to, any loss of profits) arising out of or in connection with the cancellation. 

(h) No cancellation of orders for Products made to the Customer’s specifications, or for non-stocklist items will be accepted after an order is placed and/or production has commenced (whichever is earlier). 

9.      Liability of Wilson Timbers:  Wilson Timbers will not be liable for any loss or damage whatsoever suffered by the Customer as a result of any act, omission or statement made by Wilson Timbers, its employees, contractors or agents.

10.   Certification:  A statement signed by an Officer certifying the amount of any moneys payable by the Customer, or identifying any Products as being “unpaid for” is, in the absence of manifest error, conclusive and binding on the Customer.

11.   Notification of Change of Details: 

(a) The Customer must give Wilson Timbers not less than fourteen (14) days prior written notice of any propose change of the Customer’s details (including but not limited to changes to the name, address, contact numbers or business practice).

(b) The Customer must provide written notice to Wilson Timbers of any change in the Customer’s structure or management, including any change of director, shareholder, partnership, trusteeship or address within seven (7) days of the change.

(c) The Customer acknowledges and agrees that it will be liable for and will pay any loss or damage incurred by Wilson Timbers as a result of the Customer’s failure to comply with this clause 11 of the Trading Terms. 

12.   Continuing Guarantee: All guarantees under or related to these Trading Terms will be continuing guarantees and will terminate only with Wilson Timbers’ written agreement.

13.   Set-Off: Wilson Timbers may at any time set-off amounts owed by Wilson Timbers to the Customer against amounts owed by the Customer to Wilson Timbers.

14.   Property:  

(a) Where Products are to be supplied by way of sale, property in the Products shall not pass until the Customer has paid all money owing to Wilson Timbers in full.  Risk in the Products passes to the Customer at the time of delivery. 

(b) The Customer holds the Products as fiduciary bailee and agent for Wilson Timbers and must keep the Products physically separate from all other goods of the Customer, and clearly identified as owned by Wilson Timbers until payment of all moneys owed by the Customer to Wilson Timbers. If an Event of Default occurs, then without prejudice to Wilson Timbers’ other rights, Wilson Timbers may, without notice to the Customer enter any premises occupied by the Customer or any other place where the Products may be and recover possession of the Products.

(c) If the Customer sells any of the Products supplied while money is owed to Wilson Timbers, the Customer must keep the proceeds of the sale in a separate account and not mix them with any other funds.  

(d) If the Products are resold, or goods and/or services using the Products are manufactured and resold by the Customer, the Customer holds all of the book debts owed in respect of such sales and proceeds of such sales in trust for Wilson Timbers.  Such part of the book debts and proceeds will be deemed to equal in dollar terms the amount owed by the Customer to Wilson Timbers at the time of the receipt of such book debts.  The Customer must not assign or grant a security interest in respect of such book debts without Wilson Timbers’ prior written consent.

(e) If the Customer uses the Products in some manufacturing process of its own or of some third party, then the Customer shall hold such part of the proceeds of such manufacturing process as relates to such Products in trust for Wilson Timbers.  Such part shall be deemed to equal in dollar terms the amount owing by the Customer to Wilson Timbers and at the time of payment of such proceeds the Customer’s obligation to pay the amount owed for such Products will be discharged. 

15.   Personal Property Securities Act (Cth) 2009 (“PPSA”):

 “Financing statement”, “financing change statement”, “security interest”, “purchase money security interest”, “attached”, “attachment”, “perfected”, “accession”, “commingled” and all related terms have the meaning given to them by the PPSA.

(a) In consideration of Wilson Timbers supplying the Products to the Customer at the request of the Customer, the Customer by signing these Trading Terms:

(i)    grants to Wilson Timbers a “Purchase Money Security Interest” (“PMSI”) in all Products supplied by Wilson Timbers to the Customer from time to time as security for payment of the purchase price of the Products;

(ii)   grants to Wilson Timbers a “Security Interest” (“SI”) in all of its present and after-acquired property and in all of its present and future rights in relation to any personal property (as defined in the PPSA) from time to time as security for payment of any amount owed by the Customer to Wilson Timbers and as security for the performance by the Customer of the obligations set out in the Credit Terms and/or these Trading Terms;

(iii)  agrees that any Products or proceeds of sale of the Products coming into existence after the date of these Trading Terms will come into existence subject to the PMSI and SI granted herein and these Trading Terms without the need for any further action or agreement by any party;

(iv)  acknowledges that the Customer has received valuable consideration from Wilson Timbers and agrees that it is sufficient; and

(v)   agrees that the PMSI and SI has attached to all Products supplied now or in the future by Wilson Timbers to the Customer and that the attachment of the PMSI has in no way been deferred or postponed.

(b)  Wilson Timbers reserves the right to register a financing statement in the Personal Properties Securities Register to perfect the PMSI and/or SI created under these Trading Terms. 

(c)  The costs of registering a financing statement or a financing change statement can be charged to the Customer by Wilson Timbers at Wilson Timbers’ complete discretion, and may, where applicable, be charged to the customer’s credit account with Wilson Timbers.

(d)  The Customer must promptly, on request by Wilson Timbers, execute all documents and do anything else reasonably required by Wilson Timbers to ensure that the PMSI and SI created under these Trading Terms constitutes a perfected security interest.

(e)  The Customer must not agree to allow any person to register a financing statement over any of the Products in which Wilson Timbers has any PMSI and/or SI without the prior written consent of Wilson Timbers and will immediately notify Wilson Timbers if the Customer becomes aware of any person or entity taking steps to register a financing statement in relation to any such Products.

(f)   The Customer must not allow the Products to become accessions or commingled with other goods unless Wilson Timbers has first perfected any PMSI or SI that Wilson Timbers has in relation to the Products.

(g)  If Wilson Timbers perfects any PMSI and/or SI that Wilson Timbers has in relation to the Products, the Customer must not do anything that results in Wilson Timbers having less than the security or priority granted by the PPSA that Wilson Timbers assumed at the time of perfection, subject only to the rights of a mortgagee pursuant to a registered mortgage.

(h)  The Customer irrevocably grants to Wilson Timbers the right to enter upon the Customer’s property or premises, without notice, and without being in any way liable to the Customer or to any third party, if Wilson Timbers has cause to exercise any of Wilson Timbers’ rights under Chapter 4 of the PPSA, and the Customer will indemnify Wilson Timbers for any claims made by any third party as a result of such exercise.

(i)   The Customer acknowledges and agrees that: -

(i)    nothing in sections 125, 132(3)(d), 142 and 143 of the PPSA will apply to these Trading Terms;

(ii)   the Security Agreement created by these Trading Terms may only be reinstated on the terms considered appropriate by Wilson Timbers at its complete discretion.

(j)   The Customer acknowledges and agrees that to the full extent permitted by law and mentioned below, the following provisions of the PPSA will not apply to the enforcement of any PMSI and SI created under these Trading Terms, and the Customer waives it’s right to: -

(i)    not have goods damaged or be inconvenienced any more than necessarily incidental if Wilson Timbers removes an accession under s.92 PPSA;

(ii)   to receive notice of any intention to remove an accession under s.95(1)(a);

(iii)  to apply to the Court for an order postponing the removal of the “accession” or to determine the amount payable to Wilson Timbers for the retention of the accession under s.97 PPSA

(iv)  to receive notice of a decision to enforce the security interest in personal property in the same way as an interest in land which secures the same obligation under s.118(1)(b)(i) PPSA;

(v)   to receive notice of the enforcement of liquid assets under s.121(4) PPSA

(vi)  to receive notice of any proposal to dispose of collateral under s.130(1)(a) PPSA;

(vii) to receive a Statement of Account if no disposal under s.132(4) PPSA; and

(viii)        to receive notice of any proposal to retain collateral under s.135(1)(a) PPSA; and

(ix)  to receive notice of a verification statement in relation to any registration event (including registration of a financing statement or a financing change statement) relating to the PMSI and SI created under these Trading Terms under s.157 PPSA.

16.   Effect of Other Terms:  These Trading Terms are supplemented by the Credit Terms on Wilson Timbers’ website at www.wilsontimbers.comfrom time to time, and are in no way affected or amended by any other express or implied terms.  No terms of the Customer apply to any agreement between the Customer and Wilson Timbers.

17.   Expenses:  The Customer must pay to Wilson Timbers any costs, charges and expenses (including all stamp duty and legal fees and costs and debt recovery expenses on a full indemnity basis as a liquidated debt) incurred by Wilson Timbers in connection with the entry into these Trading Terms, the exercise or attempted exercise of any power, right or remedy under these Trading Terms and/or the failure of the Customer to comply with these Trading Terms.

18.   Service of Notices and Documents:  All notices or documents required to be given to Wilson Timbers for the purposes of the PPSA must be given in accordance with the PPSA.  Any notices or documents required to be given by Wilson Timbers to the Customer for the purposes of the PPSA or for any other purposes will be effectively ‘given’, ‘served’ and ‘delivered’ if sent by Wilson Timbers to the Customer by pre-paid ordinary post to any one of the following addresses: -

(a)  the last address for the Customer known to Wilson Timbers;

(b)  if the Customer is a Company, the registered office or principal place of business; or

(c)  if the Customer trades under a registered business name, any address contained on a current business extract for that business name.

19.   Transactions:  The Customer will be liable for all transactions and expenses involving the Customer’s account including any fraudulent use of the account by the Customer or any person authorised by the Customer to use the account or the Customer’s employees, agents or contractors.  The Customer will also be liable for any fraudulent use of the Customer’s account which is directly or indirectly caused or contributed to by the Customer’s negligence.

20.   Application of Moneys Received:  If Wilson Timbers receives or recovers money in respect of a debt of the Customer, Wilson Timbers may use the money to pay off whichever debt or part of a debt Wilson Timbers chooses and is not compelled to apply the money as directed by the Customer or any other person.  To the extent that payments have been allocated to invoices issued by Wilson Timbers, Wilson Timbers may, at its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at Wilson Timbers’ absolute discretion. 

21.   Indemnity:  The Customer will indemnify Wilson Timbers in relation to any direct or indirect loss, liability or damage suffered by Wilson Timbers or any other person arising out of or in connection with these Trading Terms, and/or as a result of the Customer’s negligence and/or breach of these Trading Terms.  For the avoidance of doubt, this indemnity includes legal fees and expenses of Wilson Timbers on a full indemnity basis. 

22.   Trusts:  These Trading Terms bind the Customer both personally and as trustee of any trusts of which the Customer is trustee.

23.   Joint and Several:  If the Customer consists of more than one person, the obligations of each person are joint and several.

24.   Severance:  Each clause, sub-clause and part of these Trading Terms is separate and independent.  If any clause or sub-clause or part is found to be invalid or ineffective, the other clauses or sub-clauses or parts will not be adversely affected.

25.   Waiver: Any waiver by Wilson Timbers must be in writing signed by Wilson Timbers.  In the event that Wilson Timbers elects not to exercise any of Wilson Timbers’ rights arising in connection with these Trading Terms, Wilson Timbers’ election will not constitute a waiver of any rights relating to any other breach of these Trading Terms.

26.   Amendments: These Trading Terms may only be amended with Wilson Timbers’ express written agreement.  In the event that Wilson Timbers amends these Trading Terms, if the Customer does not agree with any amendment, they must notify Wilson Timbers in writing within fourteen (14) days of the date of the amendment, upon which Wilson Timbers will be at liberty to agree in writing, suspend or terminate the agreement with the Customer, at its discretion.  In the absence of receipt of written notice from the Customer within fourteen (14) days, the Customer is deemed to have accepted the amendment.  Unless notice in accordance with this clause is given prior, the placement of any order after amendment of these Trading Terms constitutes a binding and conclusive acceptance of these Trading Terms (as amended).

27.   Assignment:  The Customer may not assign any agreement under these Trading Terms without Wilson Timbers’ prior written consent.

28.   Application of Laws: These Trading Terms are governed by the laws of the state as determined by Wilson Timbers in its sole discretion.  The Customer submits to and consents to the laws of the state (as determined by Wilson Timbers in its sole discretion) and the central courts of that state as having jurisdiction over these Trading Terms.

29.    Delivery:

(a) The date or time for any delivery stated by Wilson Timbers is an estimate only. 

(b) Wilson Timbers will endeavour to meet all delivery estimates provided, however, the failure to do so will not give rise to grounds for cancellation or termination, or claim for loss and damages by the Customer.

(c) Insofar as it is practical to do so, Wilson Timbers will provide reasonable notice to the Customer of any changes to the estimated delivery times and notice ahead of the initial estimate provided.

(d) The Customer authorises Wilson Timbers to deliver Products to the place nominated by the Customer (“the Premises”), and to leave the Products at the Premises, whether or not any person is present to accept delivery. 

(e) Wilson Timbers shall not be liable on any basis whatsoever for loss suffered by the Customer after delivery to the Premises.

(f)  The Customer must inspect products on delivery. 

(g) Delivery is taken to occur at the earliest of:

(i)   The Customer or the Customer’s nominated carrier takes possession of the Products from Wilson Timbers; or

(ii) Wilson Timbers (or Wilson Timbers’ nominated carrier) delivers the Products to the Premises.

(h) The cost of delivery is payable by the Customer.  At Wilson Timbers’ sole discretion, the cost of delivery will either be included in the price (where indicated) or in addition to the price. 

(i)   The Customer must take delivery by receipt or collection of the Products when they are made available by Wilson Timbers for delivery.  In the event that the Customer is unable to take delivery of the Products, Wilson Timbers will be entitled to charge a reasonable fee (at its discretion) for storage and/or re-delivery. 

(j)   Delivery of Products to a third party nominated by the Customer is delivery for the purpose of these Trading Terms. 

(k) Wilson Timbers may effect delivery of the Products (whether the subject of one or more quotation, order and/or purchase) by separate instalments.  In that event, each separate instalment shall be invoiced and paid in accordance with the provisions in these Trading Terms.  Delivery by instalments will not give rise to grounds for cancellation or termination, or claim for loss and damages by the Customer.

(l)   The Customer must take delivery of Products tendered for delivery by Wilson Timbers, notwithstanding that the quantity delivered is greater or less than the quantity ordered and/or purchased.

(m)   The Customer acknowledges and agrees that in the event of any discrepancy in delivery that is greater or less than 5% of the amount ordered and/or purchased (or pro rata amount thereof) as determined by Wilson Timbers in its discretion, the Applicant will accept and/or pay (as applicable) a price adjustment for the amount of that discrepancy in the amount notified by Wilson Timbers.

(n) The Customer must accept delivery of all Products, purchases and/or orders, even if the delivery or supply of the same Is late.  Wilson Timbers will not be liable for any claim, loss, damage and/or monies associated with any late delivery or supply.

30.   Supply and lien: 

(a) Wilson Timbers reserves the right to accept or reject, at its discretion, any order, acceptance of quotation, or offer to purchase received by it.

(b) Placement of any order, acceptance of any quotation and/or offering to purchase (in any form) will constitute acceptance of these Trading Terms. 

(c) All supply by Wilson Timbers (whether pursuant to a quotation, order or otherwise) is subject to availability.  Wilson Timbers may allocate available stock at its absolute discretion, and does not have to allocate stock for the benefit of the Customer or any other person. 

(d) Insofar as Wilson Timbers requires payment upfront or on delivery, Wilson Timbers may withhold supply or delivery pending payment.

(e) Where the Customer has left any item with Wilson Timbers for repair, modification, exchange or for Wilson Timbers to perform any other service in relation to the item, and Wilson Timbers has not received the whole of any monies owing to it by the Customer, Wilson Timbers shall have:

(i)   a lien on the item; and

(ii)  the right to retain or sell the item, with such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.

(f)  The lien of Wilson Timbers shall continue despite the commencement of proceedings and/or judgment for any monies owing to Wilson Timbers having been obtained against the Customer.

31.   Delay:  Wilson Timbers shall not be liable for any failure to deliver or for any delay in delivery of Products or provision of services occasioned by any cause whatsoever, whether or not beyond the control of Wilson Timbers.

32.   Claims: 

(a) The Customer must inspect all Products delivered to the Customer or its nominated agent within 24 hours (or such other time period for perishable, dry, security or other Products as notified by Wilson Timbers from time to time) of delivery to the Premises (“Inspection Period”) in order to ensure that Products delivered are as ordered by the Customer and there is no mis-delivery, shortage, defect or damage.  The Customer must notify Wilson Timbers within the Inspection Period if Products are found to be other than as ordered by the Customer or if the Customer alleges there has been any mis-delivery, shortage, defect or damage. 

(b) Subject to these Trading Terms, if the Customer has not notified Wilson Timbers within the Inspection Period that Products delivered were not as ordered by the Customer, or that Products were either mis-delivered, there was a shortage, and/or that the Products suffered any damage or defect, then the Products will be deemed to have been delivered in good condition and as ordered by the Customer.

(c) Notwithstanding any claim made by the Customer under this section, the Customer must make payment in accordance with these Trading Terms without deduction, retention or set-off of any kind for any reason.

33.   Intellectual Property

(a) The Customer acknowledges and agrees that Wilson Timbers retains all intellectual property in any designs and documents relating to goods which have been designed, drawn or developed by Wilson Timbers.

(b) The Customer acknowledges and agrees that it has provided a warranty that all designs, specifications or instructions provided by the Customer will not cause Wilson Timbers to infringe upon any patent, registered design, trademark or intellectual property of another person in the execution of the Customer’s order(s).  The Customer will indemnify Wilson Timbers against any action taken by a third party in respect of any infringement (actual or alleged) of this provision. 

34.   Liability for Defective Products: 

(a) The Products are deemed to be defective only if any Products:

(i)   are not of merchantable quality;

(ii)  are not fit for any purpose for which they are acquired by Customer;

(iii) do not conform to any sample, specification or other description given to Wilson Timbers by the Customer in relation to the Products;

(iv)being in the nature of services, are not of a reasonable standard, quality, value or grade; or

(v) do not comply with any consumer guarantee or implied warranty applicable to the supply of the Products which cannot be excluded (including pursuant to the Competition and Consumer Act 2010 (“CCA”)).

(b) Where Products are defective (as defined in clause 34(a)) Wilson Timbers may, at its discretion, elect to:

(i)   replace the Products; or

(ii)  repair the Products or reimburse the Customer for the cost of repairing the Products; or

(iii) in the case of Products being in the nature of services, re-supply the services; or

(iv)if payment of the purchase price for the Products has not been made by the Customer - release the Customer from any obligation to pay the purchase price; or

(v) if payment of the purchase price for the Products has been made by the Customer - refund the purchase price to the Customer, subject to the Customer, where applicable, first restoring the unencumbered ownership of the Products to Wilson Timbers; and

(vi)in any case, reimburse to the Customer any cost incurred by the Customer in transporting the Products to the Customer from Wilson Timbers.

(c) To the extent permitted by law, Wilson Timbers will not accept the return of Products unless:

(i)   prior authorisation has been given (which will not be unreasonably withheld);

(ii)  the claim is supported by the relevant invoice;

(iii) the Products are in the same condition as at the date of supply;

(iv)the Products are returned via Wilson Timbers’ nominated carrier and at Wilson Timbers’ designated rates; and

(v) in the case of Products delivered in a damaged state or Products delivered other than in accordance with the Customer's order, Wilson Timbers was given notice in accordance with clause 32.

(d) The Customer agrees and acknowledges that no employee or other representative of Wilson Timbers is authorized to provide advice, recommendation, information or representation in relation to any Products or services supplied. 

(e) Other than any remedies the Customer may have under the CCA, the sole remedies of the Customer under or in relation to these Trading Terms whether in contract, in tort, under statute or otherwise are only as specified in these Trading Terms and are subject to the limitations set out in these Trading Terms, and the following limitations:

(i)   Wilson Timbers, and Wilson Timbers’ officers, employees and agents, will not have any liability or other obligation to any person or other entity, including the Customer, arising out of, or in any way directly or indirectly connected with, the matters referred to in clause 34(a) except to comply with its obligations (subject to the other provisions and limitations in this clause 34) under clause 34(b);

(ii)  all conditions, warranties and other terms pertaining to the condition or quality of Products are excluded to the extent permitted by law (including the CCA);

(iii) the Customer warrants and represents that it is relying upon its own skill and judgment in relation to the quality of Products, and their fitness for any purpose that may be required, and not upon any conduct or representation of Wilson Timbers, or any of Wilson Timbers’ officers, employees or agents; and

(iv)the Customer must not make any claim or demand, or take any action or other proceeding against Wilson Timbers, or any of Wilson Timbers’ officers, employees or agents, for any loss of profits, loss of revenue, loss of anticipated savings, loss or corruption of data, loss of contract  or opportunity, loss of goodwill OR any indirect, special or consequential loss of whatever nature including of any loss of a type described in this sub-clause, whether or not reasonably foreseeable, reasonably contemplatable or actually contemplated by the parties at the time of execution of these Trading Terms, arising out of, or in any way directly or indirectly relating to these Trading Terms including in relation to any of the matters referred to in clause 34(a).

(f)  Subject to the remainder of this clause 34, the Customer:

(i)   releases and forever discharges Wilson Timbers, and each of Wilson Timbers’ officers, employees and agents, from all claims under or in relation to these Trading Terms; and

(ii)  indemnifies Wilson Timbers and each of Wilson Timbers’ officers, employees and agents in respect of all loss, damages and expenses relating to, or arising out of, any claim.

(g) To the extent permitted by law, Wilson Timbers’ total liability for any claim under or in relation to these Trading Terms is limited to the price paid by the Customer for the Products the subject of the claim.

35.   Special Orders and Specifications in Gene: 

(a) The Customer warrants and agrees that all drawings and specifications and other design information provided to Wilson Timbers for the manufacture of special orders are accurate and correct in all respects.

(b) The Customer must make payment immediately upon request for all Products manufactured to the Customer’s special order, specification in gene or other specification which are not sold ordinarily by Wilson Timbers as stock Products.

(c) All Products manufactured to the Customer’s special order, specification in gene or other specification (or otherwise which are not sold ordinarily by Wilson Timbers as Stock Products) shall not be returnable to Wilson Timbers, and nor shall the Customer be entitled to any rebate, reduction, refund, discount or set-off in respect of such Products.

36.   Return on Ordinary Stock Items: 

(a) Products ordinarily sold by Wilson Timbers as stock Products will not be returnable (other than in accordance with clause 34(c)) to Wilson Timbers for credit to the customer’s account after the Inspection Period has elapsed unless Notice has been given in accordance with clause 32.

(b) For the avoidance of doubt, Wilson Timbers shall not be required to accept the return of Products under any circumstances and will only, at its election, accept the return of Products which are undamaged and in a good and saleable condition, and which are not special orders referred to in clause 35.

(c) Wilson Timbers may, in its discretion, accept the return of Products after the Inspection Period, in which instance the Customer agrees and acknowledges that a restocking fee of not less than 15% of the price of those Products will be administered on the price of those Products to cover the restocking, repacking and other related charges.  The Customer agrees and acknowledges that the restocking fee is a genuine pre-estimate of Wilson Timbers of the loss, costs and expenses that will be incurred by Wilson Timbers in connection with the return.

(d) All Products returned to Wilson Timbers must be accompanied by the original invoice number. 

37.   Timber Products

(a) The Customer acknowledges and agrees that timber Products may have the following characteristics, and that none of the following will constitute a defect, or give rise to any claim for defective Products against Wilson Timbers:

(i)   variations in colour, texture and inherent quality, consistent with a natural product;

(ii)  susceptibility to bending, warping, crushing, swelling and fungal growth, particularly if not sored or used properly;

(iii) susceptibility to elements and exposure, including (but not limited to) sun, rain, temperature, moisture content, humidity (etc);

(iv)susceptibility to damage and size variations due to exposure, including (but not limited to) sun, rain, temperature, moisture content, humidity, chemicals, petrochemicals (etc);

(v) treatment with poisons and/or potentially toxic chemicals including (but not limited to) preservatives and formaldehyde, which requires the Products to be stored and worked upon in well ventilated areas and not burned unless in a safe manner;

(vi)Product related dust and saw dust which may be highly combustible and is inherently dangerous to inhale. 

(b) The Customer must observe all relevant safety data sheets applicable to the Products, and the failure to do so will constitute a waiver of any right to make a claim of any kind against Wilson Timbers (whether under clause 32 or 34 or otherwise under these Trading Terms or at all). 

38.   Formation of Contract

(a) Where the Customer has completed an Application for Commercial Trading Account, the contract and/or agreement is formed at the time the Application for a Commercial Trading Account is tendered, which shall constitute an offer to acquire Products on credit, and the opening of the credit account and/or fulfilment of an order on that account on the Credit Terms, which shall constitute acceptance.

(b) Alternatively, where no Credit Terms have been entered into, each order placed by the Customer constitutes an offer to acquire Products from Wilson Timbers, and the placement of an order, either verbally or in writing, shall imply acceptance of these Trading Terms unless otherwise agreed in writing.  Only acceptance by Wilson Timbers of the Customer’s order shall complete any agreement, and such acceptance may be written, oral, or constituted by Wilson Timbers supplying Products to the Customer.

39.   Pallets and Stands:  The Customer agrees to return to Wilson Timbers all pallets, reusable packaging, display equipment and/or stands supplied to the Customer, and will indemnify Wilson Timbers for the full replacement cost of any items not promptly returned by the Customer to Wilson Timbers.

40.   On Sale:  In the event that any Product supplied or purchased from Wilson Timbers is sold, used or on-sold to a third party, the Customer must not make any representations or misrepresentations to any person about the Products, and the Customer will indemnify Wilson Timbers for any claims, losses, damages and/or allegations made by any third party as a result of the same.

41.   Definitions & interpretation:  In these Trading Terms unless the context requires otherwise:

(a) “Credit Terms” means the General Credit Terms annexed to the Application for a Commercial Trading Account, as amended from time to time.

(b) “Credit-related information” includes “credit information”, “credit reporting information”, “credit eligibility information” and/or “regulated information” (as the context permits) within the meaning of those terms in the Privacy Act.

(c) “Customer” means the customer whose details appear in the Application for a Commercial Trading Account and the Customer’s subsidiaries, holding companies and other related entities, or (if no Application for Commercial Trading Account has been completed) any person or entity who places an order for and/or receives Products supplied by Wilson Timbers.

(d) “Event of Default” means any of the following events:

(i)   the Customer fails to pay for any Products in accordance with the Credit Terms and/or these Trading Terms, and/or the Customer otherwise breaches the Credit Terms and/or these Trading Terms;

(ii)  if the Customer is in breach of any obligations under the Credit Terms and/or these Trading Terms and/or any other agreement between the Customer and Wilson Timbers;

(iii) the Customer ceases or threatens to cease carrying on business;

(iv)if the Customer is a company: an order is made or a resolution is effectively passed for winding up of the Customer, or the Customer goes into liquidation, or the Customer stops payment or is deemed unable to pay the Customer’s debts within the meaning of the Corporations Act 2001 (Cth); if the Customer is a natural person: an order is made for the Customer’s bankruptcy, or the Customer dies or becomes mentally or physically incapable of managing his or her affairs. 

(e) “Officer” means each director, secretary, credit manager and authorised representative of Wilson Timbers; and

(f)  “Privacy Act” means the Privacy Act 1988 (Cth) as amended from time to time.

(g) “Products” includes all products and/or services supplied by Wilson Timbers to the Customer.

(h) “Trading Terms” means these Terms and Conditions of Trade.

42.   Interpretation:

(a) In these Trading Terms, unless the context requires otherwise, all references to a party include the party’s successors and permitted assigns.

(b) No provision of these Trading Terms will be construed adversely against a party solely because the party was responsible for drafting the provision.