1.1 In these Terms:
ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth);
Agreement means any agreement for the provision of goods by Warwick to the Customer;
Consumer is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement;
Customer means the person, jointly and severally if more than one, acquiring goods from Warwick;
goods means goods supplied by Warwick to the Customer;
GST means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;
PPSA means the Personal Property Securities Act 2009 (Cth) and associated regulations as amended;
Warwick means Warwick Fabrics (Australia) Pty Ltd (ABN 56 004 832 455); and
Terms means these Terms and Conditions of Trade and the Order and Special Fabric Information Guide.
2.1 Unless otherwise agreed by Warwick in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
2.2 Any quotation provided by Warwick to the Customer for the proposed supply of goods is valid for 30 days and only valid if in writing.
2.3 The Terms may include additional terms in Warwick’s quotation, which are not inconsistent with the Terms.
2.4 An Agreement is only made when Warwick accepts, in writing or electronic means, an offer from the Customer or provides the Customer with the goods.
2.5 Warwick has discretion to refuse to accept any offer.
3.1 If Warwick is unable to deliver or provide the goods, then it may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer and refund to the Customer any payment the Customer has made to Warwick for the relevant goods.
3.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on Warwick once Warwick has cut or dispatched the order, or if the goods have been especially imported to meet the order.
4.1 Any items purchased at a discounted rate for clearance are excluded from the terms of Warwick’s voluntary warranty.
5.1 The minimum order size is 1 linear metre. We cut to the nearest 10cm. List Prices apply to all orders under 50 metres and specified lengths.
6.1 Please check before cutting that the correct design, colour and meterage has been supplied. In the case of double sided fabrics or railroaded designs, check for correct side and direction. No claims can be accepted after fabric has been cut.
7.1 Unless agreed otherwise, Warwick will arrange for the delivery of the goods to the Customer.
7.2 Warwick is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Customer to the point of delivery.
7.3 Warwick may make part delivery of goods and Warwick may invoice the Customer for the goods provided.
7.4 The Customer indemnifies Warwick against any loss or damage suffered by Warwick, its sub-contractors or employees in the course of making delivery of the relevant goods except where the Customer is a consumer and Warwick has not used due care and skill.
7.5 If delivery is attempted and unable to be completed for any reason other than fault on the part of Warwick, the Customer is deemed to have taken delivery of the goods.
7.6 If agreed that the Customer will collect the goods (excluding Weave products) :
(a) the Customer must collect the goods with 7 days of being advised they are ready;
(b) if the Customer does not collect the goods within this time, the Customer is deemed to have taken delivery of the goods
7.7 Weave products can not be collected from Warwick's warehouse. Where delivery of Weave products is attempted and unable to be completed for any reasons other than fault on the part of Warwick, the Customer must arrange for re-delivery of the goods. Re-deliveries may be subject to a re-delivery fee.
8.1 The Customer must provide Warwick with its specific requirements, if any, in relation to the goods for example cuts/drop for drapery orders.
9.1 The goods are not supplied for sale by sample or by the provision of samples by Warwick. Warwick cannot guarantee that the goods will match the sample due to dyelot variation. Where an exact colour match is necessary, the Customer must provide Warwick with a sample.
10.1 Warwick or the Customer are not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If such an event occurs, Warwick or the Customer may suspend or terminate the Agreement.
11.1 Requests by the Customer for fabric reserves may be made verbally or in writing and may be accepted verbally or in writing by Warwick.
11.2 If Warwick agrees to reserve fabric, it will hold the reserved fabric for a maximum of 5 business days from the date the request is accepted. After 5 days, Warwick reserves the right to deal with the fabric and cancel the reserve.
11.3 If a third party places an order for fabric that is being held on reserve by Warwick, Warwick will contact the Customer who has 24 hours to confirm that it will purchase the reserved fabric, otherwise Warwick is entitled to sell the reserved fabric to the third party.
12.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or any contractual remedy for their failure.
12.2 If the Customer:
(a) is a consumer nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against Warwick for failure of a statutory guarantee under the ACL;
(b) on-supplies the goods to consumer, subject to sub-clause (c):
(i) if the goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) is the absolute limit of Warwick’s liability to the Customer;
(ii) otherwise, payment of any amount required under section 274 of the ACL is the absolute limit of Warwick’s liability to the Customer;
howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods by the Customer or any third party;
(c) uses up or transforms the goods in the course of trade, and when the Customer supplies its own goods to a consumer the goods are no longer “goods” as defined in the ACL then Warwick will not be liable to the Customer or the consumer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods by the Customer or any third party.
12.3 If sub-clauses (a), (b) or (c) do not apply, then other than as stated in the Terms or any written warranty statement Warwick will not be liable to the Customer or the consumer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods by the Customer or any third party.
12.4 Warwick is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
12.5 The Customer acknowledges that it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Warwick in relation to the goods or their use or application.
12.6 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
13.1 Until Warwick receives full payment in cleared funds for all goods supplied by it to the Customer, as well as all other amounts owing to Warwick by the Customer:
(a) title and property in all goods remain vested in Warwick and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for Warwick;
(c) the Customer must keep the goods separate from its own goods and maintain the labelling and packaging of the goods;
(d) The Customer must hold the proceeds of sale of the goods on trust for Warwick in a separate account with a bank to whom the Customer has not given security. However failure to do so will not affect the Customer’s obligation as trustee;
(e) in addition to its rights under the PPSA, Warwick may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of Warwick, and for this purpose the Customer irrevocably licences Warwick to enter such premises and also indemnifies Warwick from and against all costs, claims, demands or actions by any party arising from such action.
14.1 Unless otherwise agreed in writing:
(a) customers with credit accounts must make full payment for the goods within 30 days of the date of Warwick’s invoice;
(b) customers without a credit account must make full payment for the goods prior to delivery of the goods; and
(c) Warwick reserves the right to require payment of a deposit equivalent to 50% of the total purchase price.
14.2 Payment terms may be revoked or amended at Warwick’s discretion upon giving the Customer written notice prior to the making of an Agreement. If the payment terms are so revoked or amended, the Customer may elect not to proceed in making the Agreement.
14.3 The time for payment is of the essence.
15.1 If the Customer defaults in payment by the due date of any amount payable to Warwick, then all money which would become payable by the Customer to Warwick at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Warwick may, without prejudice to any of its other accrued or contingent right:
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent for the period from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify Warwick from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any goods;
(c) cease or suspend supply of any further goods to the Customer;
(d) by written notice to the Customer, terminate any uncompleted Agreement with the Customer.
15.2 Clauses (c) and (d) above may also be relied upon, at Warwick’s option:
(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
15.3 The Customer and the Directors, Partners or Proprietor referred to in the Sole Proprietor or Partnership Account Application or Company Account Application (“Account Applications”) hereby charge all their right, title and interest in the property or properties listed as Private Addresses of the Partners, Proprietors or Directors in the Account Applications and also any property or properties that they own currently or may acquire in the future solely or jointly or have or become to have a beneficial interest in, in favour of Warwick, with the due and punctual observance and performance of all of the obligations of the Customer. The Customer indemnifies Warwick against all expenses and legal costs (on a solicitor/own client basis) for preparing, lodging and removing any caveat.
15.4 The Customer and the Directors, Partners or Proprietor referred to in the Account Applications hereby acknowledge that Warwick may at its discretion register and lodge a caveat(s) on such property or properties in respect of the interests conferred on it under this clause. Such registration of a caveat by Warwick over the Customer’s or an individual’s property or properties must not be challenged by the Customer or individual in any way whatsoever, and the Customer agrees not to take any steps in filing a “lapsing notice” via the Land Titles Office to have the caveat removed, until such time that the Customer has paid all monies owing by it to Warwick as claimed from time to time.
16.1 Any period or date for delivery of goods stated by Warwick is an estimate only and not a contractual commitment.
16.2 Warwick will use its reasonable endeavours to meet any estimated dates for delivery of the goods but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
17.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
17.2 For the purposes of the PPSA:
(a) terms used in this clause that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and Warwick has a Purchase Money security Interest in all present and future goods supplied by Warwick to the Customer and the proceeds of the goods;
(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(d) the Customer must do whatever is necessary in order to give a valid security interest over the goods and their proceeds which is able to be registered by Warwick on the Personal Property Securities Register.
17.3 The security interest arising under this clause attaches to the goods when the goods are collected or dispatched from Warwick’s premises and not at any later time.
17.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95 (removal of accession), 118 (enforcement of security interests in accordance with land law decisions, 121(4) (enforcement of security interests in liquid assets), 130 (disposal of collateral), 132(3)(d) (amounts paid to other secured parties), 132(4) (statement of account in respect of seized collateral), 135 (retention of collateral) and 157 (notice to grantors) of the PPSA.
17.5 Warwick and the Customer agree to contract out of and nothing in the provisions of sections 96 (retention of accession), 125 (disposal or retention of collateral), 129 (disposal by purchase), 142 (redemption of collateral) and 143 (reinstatement of security agreement) of the PPSA will apply to these Terms.
17.6 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on Warwick will apply only to the extent that they are mandatory or Warwick agrees to their application in writing; and
(b) where Warwick has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
17.7 The Customer must immediately upon Warwick’s request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by Warwick to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Warwick may at any time require.
17.8 Warwick may allocate amounts received from the Customer in any manner Warwick determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by Warwick.
17.9 For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Terms or the sale of the goods, except as otherwise required by law or that is already in the public domain.
18.1 All amounts listed are in Australian Dollars (AUD) unless stated otherwise. Prices quoted for the supply of goods are exclusive of GST and any other taxes or duties imposed in relation to the goods.
18.2 If the Customer requests any variation to the Agreement, Warwick may increase the price to account for the variation.
18.3 Where there is any change in the costs incurred by Warwick in relation to goods, Warwick may seek to vary its price to take account of any such change, by notifying the Customer. If the Customer is so notified, the Customer may elect to:
(a) proceed with the Agreement; or
(b) cancel the Agreement and obtain a refund of deposit monies paid.
19.1 The following treatments may be applied to all fabrics other than high pile viscose rayon chenilles, velvets or pocket weave jacquards, upon which the surface character may be altered.
(a) Fire Retarding
This treatment can be applied to all fabrics, including PU and vinyl products providing they have a backing. Price: $6.00 per metre plus 10% GST. Please clearly specify when placing your order if you require this treatment to be applied.
(b) Stain Repellent Treatments
Available on all woven fabrics other than velvets. Price: $6.00 per metre plus 10% GST. Please clearly specify when placing your order if you require this treatment to be applied.
(c) Anti-Microbial Treatment
Available on all fabrics other than velvets. Price: $6.00 per metre plus 10% GST. Please clearly specify when placing your order if you require this treatment to be applied.
(d) Combined Fabric Treatments
Fire retardant, stain repellent and anti-microbial treatments can be applied in the one process. Price: $6.50 per metre plus 10% GST for two treatments / $7.00 per metre plus 10% GST for three treatments. Please clearly specify when placing your order if you require this treatment to be applied.
20.1 Returns for excess or unwanted goods (excluding Weave products) can only be accepted if returned within twenty one days from the Customer’s receipt of goods.
20.2 Returns for excess, unwanted goods, change of mind or damage as a result of misuse, abuse, neglect, accident or failure to follow product warnings or care information are not accepted for any Weave products. Weave products are custom made items and no two items will be the same, with small variation in colour, design, size and other unique characteristics. Such variations are an integral part of artisan products, and are not eligible for credits or returns.
20.3 A handling charge of $50 plus 10% GST will be applied to any standard returns which have been correctly supplied to order by Warwick.
20.4 For any non-standard returns that are of large quantity in terms of linear metres and / or number of pieces will incur a 15% charge plus GST based on the invoiced sales value of goods supplied.
20.5 To the extent permitted by law, Warwick may not accept return of goods if those goods:
(a) have been specifically produced or acquired to fulfil the particular Agreement;
(b) are discontinued goods or are goods no longer supported by Warwick;
(c) have been altered or utilised in any way;
(d) comprise a piece of fabric less than 10 linear metres; or
(e) are not returned in original condition being the original packaging with relevant product references.
20.6 Warwick will accept return of Weave goods that are delivered damaged, faulty or incorrectly supplied. If not subject to rights under the Australian Consumer Law, return of goods for these reasons must be made to Warwick within 14 days.
21.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately upon the goods being delivered to the Customer or the Customer collecting the goods from Warwick’s premises.
21.2 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, installation or possession of any of the goods sold by Warwick, unless recoverable from Warwick on the failure of any statutory guarantee under the ACL.
22.1 The customer must inspect the goods on delivery. This responsibility remains with the Customer even if the goods are delivered to a third party by agreement.
22.2 Warwick will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless:
(a) the Customer notifies Warwick and the Carrier with full details and description within 5 days of delivery;
(b) the goods have not been cut;
(c) the Customer, on request, makes the goods available for inspection;
otherwise the Customer is deemed to have accepted the goods.
22.3 When any shortages, claim for damaged goods or non-compliance with the Agreement specifications is accepted by Warwick, Warwick may, at its option, replace the goods, or refund the price of the goods.
22.3 If the goods are properly returned but Warwick finds there is a discrepancy in the stated reason or quantities provided by the Customer, Warwick reserves the right to refuse to credit the Customer.
23.1 Order values of $100 and under for delivery to the same destination will incur a handling fee of $20.00 plus 10% GST.
23.2 Order values of $100 and under for delivery of the same fabric to separate addresses will incur a handling fee of $20.00 plus 10% GST for each address.
24.1 The responsibility for ensuring the fabric is checked before cutting remains that of the Customer even when the goods are delivered to a third party (i.e. furniture manufacturer or curtain workroom etc.)
24.2 Warwick and Weave product orders must be processed separately by the Warwick sales team.
24.3 Please note all Weave cushion products need to be purchased in increments of two due to packing size.
25.1 Please note that all roll sizes and pattern repeats quoted within the Warwick Price List are approximate.
26.1 The law of Victoria from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
26.2 Warwick’s failure to enforce any of these Terms shall not be construed as a waiver of any of Warwick’s rights.
26.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
26.4 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.