Terms and Conditions
To the fullest extent legally permissible all dealings between Tux Lux and any Customer relating to any products [“Products”] and/or services are subject to the following terms and conditions of trade [“these Terms”] unless otherwise agreed in writing:
1. Limitation of Liability: The Customer agrees: In the event that any supply agreement constitutes a supply of products or services to a purchaser as defined in the Trade Practices Act 1974, as amended, (“the Act”) nothing herein excludes, restricts or modifies any condition, warranty, right or remedy which pursuant to the act is applicable or is conferred on a purchase or any third party provided that Tux Lux liability for such breach including any consequential loss which the customer sustains or incurs shall be limited (except to the extent specifically set forth herein) to:
The repair or replacement of the product(s) or the supply of equivalent product(s) by Tux Lux at the discretion of Tux Lux or if in the case that Tux Lux cannot repair or replace the product(s);
i. The payment of the cost of having the product(s) repaired or replaced, at the discretion of Tux Lux and based on Tux Lux agreeing that the costs submitted to Tux Lux prior to carrying out the repair or supply of the replacement(s) are fair and reasonable;
ii. that Tux Lux shall not be liable for any loss or expense arising after seven days from delivery (or at all once Products have been unpacked, affixed and/or otherwise used or applied) after which there shall be deemed to be unqualified acceptance;
iii. that to the fullest extent legally permissible Tux Lux shall not be liable for any damages for personal injury, any damage to property and/or any contingent, consequential, direct, indirect, special or punitive damages whether due to negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly; and
iv. that to the fullest extent legally permissible no other term, condition, agreement, warranty, representation and/or understanding whether express or implied, in any way extending to, otherwise relating to or binding upon Tux Lux other than these Terms is made or given by or on behalf of Tux Lux other than by these Terms save and except to the extent otherwise required by law.
2. Exclusions: The Customer agrees that:
no dealing between Tux Lux and the Customer shall be or be deemed to be a sale by sample;
i. the Customer shall rely on its own knowledge and expertise in selecting Products for any purpose and any advice or assistance given by or on behalf of Tux Lux shall be accepted at the Customer’s risk and shall not be deemed to have been given as an expert or adviser nor to have been relied upon;
ii. the customer acknowledges that all measurements and products choices are done so at their own risk, Tux Lux holds no responsibility in receiving any measurements wherein the customer has incorrectly measured and chosen unsuitable products, the customer herein takes full responsibility on all final purchases made
iii. Products are sold subject to each and every manufacturer’s trading terms and conditions and are protected by each and every manufacturer’s warranty and Tux Lux shall not be liable to the extent that any manufacturer is liable under a manufacturer’s warranty unless otherwise required by law; and
iv. Tux Lux shall not be liable nor responsible for any failure to comply with any requirements of the Customer or any other person (whether relating to manufacture, design, fabrication, installation and/or any other particular intended use of any Products and/or otherwise) which are not precisely and accurately communicated in writing directly to the appropriate personnel at Tux Lux. Tux Lux retains the right to refuse to manufacture and supply Products if we believe they will not be suitable for your requirements. If the Customer proceeds with an order for those Products, which are deemed by Tux Lux to be unsuitable, then the responsibility for their suitability for the purpose to which the Customer intends to use them, lies with the Customer.
3. Cancellations and Returns: The Customer agrees that:
the Customer shall at no time cancel the whole or part of any order placed unless with Tux Lux’s prior approval.
i. notwithstanding any other provisions of these Terms the Customer shall not return any Products which have been custom made, custom cut, custom processed or custom acquired. If the order is cancelled prior to production a 10% charge will be applied at the discretion of Tux Lux which will be deducted from the deposit to cover the cost of return of the raw materials and administration costs.
4. Customer responsibilities: The Customer agrees that:
any advice given by Tux Lux is general in nature only and may not take into consideration the specific needs of the Customer’s situation. It is the Customer’s responsibility to check whether information given is applicable to them and by going ahead with any order, the Customer takes responsibility for, and agrees that, the details of all items as listed on Tux Lux’s quote(s)/invoice(s) and any supporting correspondence, are correct. If unsure, the Customer is advised to engage the services of a suitably qualified and licensed professional;
i. if the Customer is a “Do It Yourselfer” (DIY’er), the customer acknowledges that they are not an industry professional. If the Customer goes ahead with an order, the Customer agrees to accept responsibility for any errors that occur due to misinformation that they supply, or Tux Lux misinterpretation of the Customer’s information if it is not as per industry standard. Tux Lux encourages all orders to be lodged on Tux Lux’s online DIY page in an effort to limit errors and misinterpretation of information;
ii. as all Tux Lux doors and panels are made with a combination of computer controlled and hand operated machinery, then sanded and spray painted by hand, the components of manufacture that are made by hand are subject to minor variations in size and finish. Tux Lux performs quality control and checks all items for imperfections, and will reject those with obvious faults. However, any minor imperfections and variations which are not immediately obvious, are not considered faults;
iii. each order it places shall be deemed to include a representation that it is solvent and able to pay all of its debts as and when they fall due; and
iv. when any order is placed the Customer shall inform Tux Lux of any facts which might reasonably affect any decision to accept the order and/or grant credit and that any failure to do so shall be deemed to create and constitute an inequality of bargaining position, the taking of an unfair advantage of Tux Lux and to be unconscionable, misleading and deceptive;
5. Purchase Price: The Customer agrees that all sales are otherwise made by Tux Lux at its ruling price at the time of delivery and on such other terms as Tux Lux considers to be reasonable.
6. Delivery: The Customer agrees that:
Tux Lux accepts no responsibility or duty to deliver but may elect to arrange delivery at its discretion and without liability and at the Customer’s cost and risk in all things;
i. Tux Lux shall not be liable for delay or any failure or inability to deliver;
ii. Products shall be deemed to be delivered as soon as they are ready for delivery at which time risk shall be deemed to have passed to the Customer; and
iii. Tux Lux may charge for frustrated delivery to cover Tux Lux’s reasonable expenses;
iv. Immediately upon delivery, the customer must inspect all Products prior to signing the delivery docket or tax invoice to ascertain that there is no damage to the Products. If damage is found, the purchaser must sign for the freight as damaged and the driver must acknowledge that the purchaser is signing for damaged freight. If transport of the Products is by a third party (other than Tux Lux or it’s agents) then it is the responsibility of the purchaser to file any freight claims resulting from this process. In the case of third party transport, Tux Lux has no liability after the Products are despatched from its premises.
7. Other Terms and Conditions: No terms and conditions sought to be imposed by the Customer upon Tux Lux shall apply.
8. Recovery Costs: The Customer shall pay all costs and expenses (including legal costs on an indemnity basis) incurred by Tux Lux and/or its agents in respect of the Customer whether relating to any debt, possession of Products and/or otherwise.
9. Customer Restructure: The Customer shall notify Tux Lux in writing of any change in its structure and/or management including any change in director, shareholder and/or management and any change in partnership or trusteeship within seven days of the date of any such change.
10. Jurisdiction: The Customer agrees that all contracts made with Tux Lux shall be deemed to be made in the State nominated by Tux Lux and the Customer agrees to submit to the jurisdiction of the appropriate Court nominated by Tux Lux in the capital city of that State.
11. Holding Orders: The Customer agrees to pay any costs and expenses of Tux Lux in handling and/or holding Products once ready for delivery.
12. Force Majeure: Tux Lux shall not be or be deemed to be in default or breach of any contract as a result of Force Majeure. Force Majeure shall include any cause beyond the reasonable control of Tux Lux including strikes and lockouts.
13. Defaults: Upon the appointment of an Administrator, Receiver, Receiver and Manager, Liquidator or Trustee in Bankruptcy to the Customer or a breach of any of these Terms by the Customer, Tux Lux may inter alia retain all monies paid, cease further deliveries, recover from the Customer any loss of profits arising and/or at Tux Lux election take immediate possession of Products not paid for without prejudice to any other rights Tux Lux may have and without Tux Lux being liable in any way to any person.
14. Severability: Any part of these Terms being a whole or part of a clause shall be capable of severance without affecting any other part of these Terms.
15. Warranty Policy:
. The buyer hereby waives all statutory warranties and all warranties implied by law in connection with the sale of the Products, and agrees that the only warranties made by and binding upon Tux Lux, is that Tux Lux warrants its goods for one year (365 days) from the date of purchase by the buyer against any defects in workmanship in the goods. Any damages for any defect is limited to repair or replacement of the defective Products at the discretion of the management of Tux Lux.
i. Routing of medium density fibreboard (MDF) material may cause a slight bowing of the material. This is normal and will most likely be within the Australian standards.
ii. The warranty does not apply for damage caused to the Products after receipt by the customer, by any factors, including without limitation: wear and tear, mishandling, abuse or accidental damage.
iii. Tux Lux in no manner warrants the fitness of its Products for any particular purpose for which the buyer intends to use them. The buyer assumes all risks associated with the Products and the use thereof.
iv. Save and except as required by law no warranty is given where Tux Lux is not the manufacturer of Products other than the warranty offered by the manufacturer and to the fullest extent legally permissible Tux Lux liability shall in all cases be strictly limited in accordance with clauses 4. & 5. of these Terms.
16. Notice: The Customer agrees that it shall be deemed to have notice of any change to these Terms and be bound by any subsequent versions of these Terms as they appear on the www.tuxlux.net
whether or not the Customer has actual notice thereof.