Terms & Conditions

1. Definitions

• "Agreement" means this trading term agreement;
• "Brian Cummins Group" means Brian Cummins Group Pty Ltd ABN 91 003 692 500;
• "Customer" means any person who or Company (including its Related Bodies Corporate, administrators, successors and/or permitted assignees) which is named as the Customer overleaf;
• "Goods" means the materials, equipment and supplies described overleaf;
• "Guarantor" means that person (or persons) or entity who agrees to be liable for the debts of the Customer pursuant to the Guarantee and to be personally liable for any outstanding amount owed to Brian Cummins Group by the Customer under this Agreement;
• "Order" means a written or verbal acceptance of the Quotation from the Customer to Brian Cummins Group;
• "Price" means the amount described overleaf;
• "Quotation" means a written quotation provided by Brian Cummins Group to the Customer;
• "Related Bodies Corporate" has the same meaning as in the Corporations Act 2001; and;
• "Services" means set-up, repair or maintenance services (if any) in connection with the Goods. "User" means the person or entity using the website.
• "Owner" means the company that owns the website, Standard Design 2012 Internal "Service Provider" means the company providing the website content management system and hosting services to the Owner for the website.
• "Website" means "http://briancummins.com.au and attached sites/"

2. Incorporation

2.1. These Terms and Conditions govern all contracts for the supply of Goods and Services by Brian Cummins Group to the Customer and constitute the entire contract between the parties in connection with the supply of Goods and Services agreed between Brian Cummins Group and the Customer. All other terms and conditions, express or implied are excluded to the fullest extent permitted by law including without limitation any terms and conditions of the Customer.
2.2. No modification or variation of these Terms and Conditions shall bind Brian Cummins Group unless expressly agreed to in writing by an authorised employee of Brian Cummins Group.
2.3. These Terms and Conditions supersede any terms and conditions which have previously governed a contract for supply of Goods and Services between the Customer and Brian Cummins Group.
2.4. These Terms and Conditions will prevail to the extent of any inconsistency between a Quotation or Order and these Terms and Conditions.

3. Quotations and Order

3.1. Unless previously withdrawn a Quotation is valid for thirty (30) days from issue or such other period as is stated therein and is subject to withdrawal or change at any time.
3.2. Once the Customer has accepted a Quotation and the Order made, the Customer may not alter or modify the Order unless written consent of an authorised employee of Brian Cummins Group is obtained.
3.3. An Order made by the Customer shall be taken to be an offer incorporating all the conditions herein. Brian Cummins Group reserves the right to accept Orders in whole or part. A contract for the supply of Goods and Services shall not come into existence until an authorised employee of Brian Cummins Group accepts the Customer's offer.

4. Price

4.1. In addition to the Price, the Customer agrees to pay for, if so requested by Brian Cummins Group:
(a) any increases in taxes and duties which Brian Cummins Group may be required to collect or pay after the date set out overleaf;
(b) all goods and services tax payable not otherwise included in the Price. Brian Cummins Group shall issue a tax invoice to the Customer for goods and services tax;
(c) the cost of holding, storing and insuring the Goods if delivery is delayed by or at the request of the Customer;
(d) the cost of set up and installation of the Goods;
(e) interest accruing daily on the unpaid balance of the Price or any amount payable from its due date until the date of payment at the rate of nine percent (9%) per annum; and
(f) extra or additional costs or expenses incurred by Brian Cummins Group due to incorrect instructions or information given by the Customer, lack of instructions or by reason of any variations or amendments to the specifications or your requirements for the Goods and Services or the type of goods being produced by Brian Cummins Group. Any such extra or additional cost will be accepted by the Customer and added to the Price and will be paid by the Customer in accordance with these Terms and Conditions.

5. Deposit

5.1. Once acceptance of the quotation has been communicated and therefore an Order having been made, Brian Cummins Group may at its discretion require the Customer to pay a minimum 20% Deposit of the quotation prior to manufacture of the Goods.

6. Payment

6.1. The Customer shall pay the Price and other amounts payable upon delivery subject to the following conditions:
(a) If the Customer has an account and credit has been given by Brian Cummins Group, the Customer shall pay the Price within thirty (30) days from the date of the invoice.
(b) Interest at the rate specified in clause 4.1 (e) hereof shall accrue daily on any amount due and unpaid.
(c) Accounts that remain outstanding for a period of thirty (30) days will incur a $25.00 Per Month Administration Fee.
6.2. Time of payment is of the essence to the contract. The Customer will indemnify Brian Cummins Group on demand against all costs, charges, expenses and legal costs (on a solicitor and own client basis) incurred by Brian Cummins Group in recovering sums owed by the Customer.
6.3. Unless otherwise indicated, all payments shall be made in Australian currency.

7. Delivery and Risk

7.1. Risk in the Goods will pass to the Customer at Brian Cummins Group's warehouse upon the Goods being packed upon the vessel or vehicle which is to deliver the Goods to the Customer.
7.2. Brian Cummins Group gives or accepts delivery dates in good faith, but does not guarantee those dates. Brian Cummins Group shall not be liable to the Customer for any loss or damage whatsoever should Brian Cummins Group be delayed or prevented from delivering Goods or otherwise performing any of its contractual obligations due to any cause or circumstance of any kind whatsoever beyond its control.
7.3. Subject to clause 7.2, delivery dates shall not be varied by the Customer once they have been agreed to by Brian Cummins Group without the prior written consent of an authorised employee of Brian Cummins Group.

8. Retention of Title

8.1. Brian Cummins Group shall retain title to the Goods supplied to the Customer until it has received payment in full for the Goods and all other Goods supplied to the Customer.
8.2. Until title passes under clause 8.1:
(a) The Customer will hold Goods as bailee and fiduciary for Brian Cummins Group (in which full title to Goods will remain);
(b) The Customer will insure Goods against all usual risks to full replacement value until ownership passes to the Customer. The Customer will hold on Trust for Brian Cummins Group in a separate bank account any insurance monies received by the Customer for Goods supplied to the Customer but owned by Brian Cummins Group;
(c) The Customer will store each delivery of Goods separately, clearly identified as Brian Cummins Group's property and in a manner to enable them to be indentified and cross-referenced to particular invoices where reasonably possible; and
(d) The Customer will not pledge or allow lien, charge interest to arise over Goods.
8.3. Brian Cummins Group's rights as an unpaid seller shall not be effected by Brian Cummins Group retaining title to Goods supplied until the Goods have been paid for in full by the Customer.
8.4. Where the Customer has not fully paid Brian Cummins Group for Goods or the Customer enters into Bankruptcy, liquidation, a composition with its creditors, has a receiver or manager appointed over all or any part of its assets, enters into administration or becomes insolvent;
(a) the Customer may not sell, use or part with possession of the Goods; and
(b) Brian Cummins Group shall be entitled, without prejudice to Brian Cummins Group's other remedies, to recover and repossess such Goods and to enter any premises without notice for this purpose.
8.5. Brian Cummins Group has the right to enter the Customer's premises and recover Goods supplied if the Customer does not pay for them within the period stated in clause 6.1. Brian Cummins Group shall also be entitled to collect any of its Goods supplied under invoices that have been paid, so long as any unpaid debt remains, regardless of whether that debt relates to the good collected or not.
8.6. No provision of this clause 8 is intended to, nor shall it, constitute a charge in respect of the Goods supplied or in respect of any monies paid to the Customer by any purchaser of the Customer purchasing such Goods. If any provision of this contract creates a charge over the Goods supplied or monies paid to the Customer for any purchaser of the Customer purchasing such Goods, or shall be found to be void or unenforceable for any other reason, then that provision shall be severed and excised from the contract and the remainder of the provisions shall be read and constructed as if that severed and excised provision was not part of the contract.

9. Security and Charge

9.1. Notwithstanding anything to the contrary contained herein or any other rights which Brian Cummins Group may have howsoever:
(a) Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Brian Cummins Group or Brian Cummins Group's nominee to secure all amounts and other monetary obligations payable under this Agreement. The Customer and/or the Guarantor acknowledge and agree that Brian Cummins Group (or Brian Cummins Group's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met;
(b) Should Brian Cummins Group elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Brian Cummins Group from and against all Brian Cummins Group's costs and disbursements including legal costs on a solicitor and own client basis;
(c) To give effect to the provisions of clause 9.1(a) and (b) inclusive hereof the Customer and/or the Guarantor (if any) do hereby irrevocably nominate, constitute and appoint Brian Cummins Group or Brian Cummins Group's nominee, as the Customer's and/or Guarantor's true and lawful attorney to execute mortgages and charges (whether registrable or not) including such other terms and conditions as Brian Cummins Group and/or Brian Cummins Group's nominee shall think fit in its absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of Brian Cummins Group and in the Customer's and/or Guarantor's name as may be necessary to secure the said Customer's and/or Guarantor's obligations and indebtedness to Brian Cummins Group and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in Brian Cummins Group's absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.

10. Limitation of Liability

10.1. To the extent permitted by law:
(a) Brian Cummins Group will not be liable for any breach of statutory obligation or implied condition or warranty in respect of Goods and Services (or materials used in connection with Goods and Services) supplied to the Customer;
(b) Brian Cummins Group shall under no circumstance be liable in any way whatsoever to the Customer for any form of loss, damage or expense sustained or incurred by the Customer or any other party in consequence of or resulting directly or indirectly out of the supply of Goods or provision of Services by Brian Cummins Group, the use or performance thereof, any breach by Brian Cummins Group of any contract incorporating these Terms and Conditions, or the negligence of Brian Cummins Group. Without limiting the generality of the foregoing, Brian Cummins Group is not liable in any circumstance whatsoever for any indirect or consequential losses, loss of profits or use, any rectification costs or any third party claims in connection with the Goods, Services or the contract;
(c) Without limiting the generality of clause 9.1(b), Brian Cummins Group shall under no circumstance be liable in any way whatsoever for any form of expectation loss, including without limitation any indirect or consequential losses, loss of use, any rectification costs or any third person claim in connection with the Goods, Services or the Contract caused by or in any way relating to without limitation, the inability of Brian Cummins Group to provide the Goods and Services; and
(d) Should any law render a provision herein void or ineffective, the Customer agrees that the liability of Brian Cummins Group is limited to a refund of any Deposit paid.

11. Claims

Brian Cummins Group will not be liable for any claim for breach of any warranty given under clause 12 unless the Customer satisfies Brian Cummins Group that the Customer has strictly complied with any instructions of Brian Cummins Group relating to the relevant Goods and Services.
The Customer will:
(a) Notify Brian Cummins Group in writing if Goods or Services fail to comply with the relevant warranties within seven (7) days of delivery of the relevant Goods or performances of the relevant Services; and
(b) Preserve as far as possible for Brian Cummins Group's inspection, Goods that are alleged not to comply with the relevant warranties.

12. Termination

The Customer may terminate in whole or in part any contract for the supply of Goods and Services before the supply has been made provided the following conditions are satisfied:
(a) The written approval of an authorised employee of Brian Cummins Group has been obtained; and
(b) The Customer agrees to pay any cancellation charge, being a genuine pre-estimate of Brian Cummins Group's loss as determined and specified by Brian Cummins Group.
Brian Cummins Group reserves the right immediately to terminate or suspend Brian Cummins Group's performance of the whole or any outstanding part of any contract for the supply of Goods and Services without incurring any liability to the Customer in any of the following circumstances:
(c) The Customer fails to pay the Deposit or balance of the Price by the due date or breaches any other term of this Agreement;
(d) The Customer enters into Bankruptcy, liquidation or a composition with its creditors, has a receiver or manager appointed over all or any part of its assets, enters into administration or becomes insolvent;
(e) Brian Cummins Group notifies the Customer of having reasonable grounds for suspecting that an event in clause 12.2(b) has occurred or will occur, or that the Customer will not pay for Goods and/or Services on the due date; or
(f) Contractual performance by either Brian Cummins Group or the Customer is delayed or prevented due to any cause or circumstance.
Termination by Brian Cummins Group under clause 12.2 shall be without prejudice to Brian Cummins Group's other remedies and right to recover payment from the Customer for breach of contract and for any Goods and/or Services previously provided by Brian Cummins Group.

13. Warranty

Subject to clause 10 above, Brian Cummins Group shall have no obligations to repair or replace Goods which have a normal life under twelve (12) months.
Should the Goods supplied require service or repair work, Brian Cummins Group or the manufacturer are the only companies authorised to carry out service work on the Goods during the warranty period. The warranty will become void should any other company service the equipment during the warranty period, unless authorisation is received by Brian Cummins Group prior to the service being carried out. 
Brian Cummins Group denies liability and responsibility for Goods or subsequent damage occasioned by, or from the following events:
(a) Damage caused by water, fire lightning, act of god, riot or war;
(b) Where damage has occurred as a result of the gross negligence of the Customer or employees or guests at the Customers function;
(c) Degradation of Goods due to wear and tear in normal use;
(d) Customer change of mind.
Should services be sought from Brian Cummins Group to remedy or replace any Goods due to the above events, then such services will be charged at Brian Cummins Group's prevailing casual consulting rates at the time.
Where Goods are repaired or replaced, the warranty on the replacement or repaired goods is for the remaining period of the original warranty and not a further twelve (12) months.
Brian Cummins Group does not warrant fabrics and finishes of the Goods provided.
Brian Cummins Group has a strict no return policy, subject to the warranties permitted by law, where the Customer has changed their mind, made an incorrect choice, mistake or provided incorrect instructions.
Brian Cummins Group will not be responsible for replacement of Goods where the Goods do not match the exact description in terms of colour or finishes requested by the Customer and the Goods are in essence materially the same.

14. Force majeure

Brian Cummins Group shall not be liable for failure to supply the Goods and/or Services for any reason whatsoever outside the reasonable control of Brian Cummins Group including, without limitation to the generality of the forgoing industrial action, war, governmental action or regulation, act of God, riots, or non availability of stock or materials. Any such failure shall not affect the obligation of the Customer to pay for Goods and/or Services already supplied.

15. Severability

If any provision of these Terms and Conditions is or becomes invalid and not enforceable in accordance with its terms, all other provisions which are self-sustaining and capable of separate enforcement without regard to the invalid provisions shall be and continue to be valid and enforceable in accordance with their terms.

16. Agreement to be bound by terms

It is a condition of use of this site that Users agree to these Terms and Conditions. By registering to use this site Users agree to be bound by these Terms and Conditions.

17. Identification

The User warrants that they are either the person, or in the case of a corporation, an authorised representative of the corporation, that is named as the User in the registration form. It is a breach of this User agreement and also a misrepresentation with both potential civil and criminal consequences for a person to register as a User that they are not authorised to represent for this purpose. The Owner reserves the right at any stage to contact a User to confirm both the validity of the account and also the currency and security of the passwords used.

18. Unavailability

From time to time information that would normally be available through the site (including supplier's catalogs) may not be able to be accessed online because of technical or other problems. The Owner, and the Service Provider expressly excludes liability to any User of this site in respect of the unavailability of content regardless of whether or not this unavailability is caused by the negligence of the Owner or the Service Provider.

19. Privacy and Storage of your personal information

It is necessary for the Owner to capture information about you in order to provide the services offered through this website. The use of the information and your rights in respect of it is set out in the Privacy Statement on this Website.

20. Pricing

Whilst all effort is made to keep pricing on this website up to date it is possible at times it may be out of date. As such prices on this website should only be considered as an "invitation to treat" rather than as an offer to provide these products at these prices. Your order and payment of goods will be deemed to be an offer and acceptance only happens when we accept the order. The website automatically sends you an order confirmation email. This email merely acknowledges that we have received your order but does not commit us to supply at the prices contained in the offer. Acceptance of your offer will be communicated manually.

21. Indemnity

The User agrees to indemnify the Owner and the Service Provider against any claim for loss or damage of any kind by any third party arising out of, or in relation to, the use of the Website by the User.

22. Copyright

Material on this site is all the copyright of the Owner or the Service Provider and the copying or use of this information is not permitted unless prior written permission is received from the site owner.

23. Credit Card

Credit Card transactions are processed in Australian Dollars using:

• payment pages which comply with the Industry standard and use TSL 1.0 (SSL 3.0)
• a 128-bit SSL encryption
• secure SSL tunnel to connect to the payment gateway