Terms and Conditions of Trade
Glass World P/L Ltd (ABN 52 613 241 204) Trading as All Things Glass - Terms and Conditions of Trade
1. Definitions
1.1 Agreement means the agreement including these terms and conditions between the Company and the Customer for the supply of the Goods.
1.2 Company means Glass World Pty Ltd ABN (52 613 242 204).
1.3 Customer means the person or entity (if more than one, jointly and severally) buying the Goods as specified in the invoice or order.
1.4 Delivery has the meaning in clause 6.
1.5 Goods means all Goods supplied by the Company to the Customer under this Agreement. In context, Goods include Services.
1.6 PPSA means the Personal Property Securities Act 2009 (Cwth) as amended from time to time.
1.7 PPSR means the Personal Property Securities Register under the PPSA.
1.8 Price means the price payable for the Goods agreed between the Company and the Customer in this Agreement.
1.9 Services means all services requested and supplied by the Company to the Customer, including installation of the Goods.
2. Acceptance
2.1 The Customer accepts and is bound by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended by agreement in writing. To the extent of any inconsistency, these terms and conditions prevail over any other agreement between the Customer and the Company.
3. Change in Control
3.1 The Customer must give the Company at least 14 days prior written notice of any:
(a) proposed change of ownership of the Customer;
(b) other change in the Customer’s details (e.g. changes to the Customer’s name, address, email, contact phone or fax numbers).
3.2 The Customer is liable for any loss incurred by the Company as a result of the Customer’s failure to comply with clause 3.1.
4. Price and Payment
4.1 At the Company’s sole discretion, the Price shall be (in order):
(a) the sum on any invoice provided by the Company to the Customer in accordance with this Agreement; or
(b) the Company’s quoted price which is valid for the period stated in the quotation or if no period is stated then a period of 30 days; or
(c) the Company's current price list as at the date of Delivery.
4.2 The Customer must pay the following deposit to the Company at the time of placing the order or within a reasonable time after placing the order:
(a) 6.5% of the Price if the Price is $7,500 or more; or
(b) 50% of the Price if the Price is below $7,500.
4.3 Where the Customer supplies its own sizing, the Customer must confirm the sizing in writing by email, fax or post within a reasonable time after placing the order.
4.4 The Company will not order any glass or materials or commence any work before it receives:
(a) the deposit under clause 4.2;
(b) the sizing confirmation under clause 4.3.
4.5 To the extent permitted by law, the Customer's deposit is not refundable.
4.6 If there is any variation to the Goods or scope of Services, the Company will seek the Customer's consent before proceeding with the variation. Once the Customer consents to the variation and the price of the variation, the Customer must pay the Company for the increases to the Price.
4.7 The Customer must pay the Company's invoice (less any deposit) on the date of installation of the Goods, unless another due date is specified on the invoice.
4.8 Payment is by cash, cheque, electronic online banking, credit card or any other method agreed between the Customer and the Company.
4.9 Unless otherwise stated, the Price does not include GST. The Customer must pay GST on the Price at the same time. The Customer must also pay any other applicable taxes and duties except where these are expressly included in the Price. Time is of the essence for all payments.
5. Customer's Acknowledgements
5.1 The Customer acknowledges that the Goods may vary in its appearance or quality (e.g. in shade, colour, texture, finish) from the Company's catalogue or samples and may change colour over time. This is due to the inherent characteristics of or greenness in glass and cannot be avoided. Variations can be expected due to varying amounts of greenness in glass and varying amounts of iron in different batches of glass. Therefore the Company does not guarantee that all glass panels will match exactly. The Company will try and mitigate this risk wherever possible. If the Customer requires a closer to exact colour math, then a low-iron content glass (e.g.Optiwhite, Starphire, Daiamnt Extra Clear) must be used, and the Customer agrees to pay for any additional cost.
5.2 Painted glass is not a perfect medium and minor imperfections are a characteristic of glass. The Company will try to mitigate these imperfections but sometimes this is simply not possible. The Customer agrees to accept reasonable imperfections where these are caused by the glass manufacturing, painting process or toughening process. If there is any dispute, the Company and Customer agree to accept imperfections in accordance with ASNZS 4667-2000 Quality requirements for cut-to-size and processed glass.
5.3 The glass industry accepts a plus or minus 2mm tolerance on all dimensions. The Customer accepts the Goods and installation will not be to exact size or measurement due to practical limitations involved in working with glass, and accepts a tolerance of 5mm gap at each joint.
6. Delivery of Goods
6.1 Delivery is taken to occur at the time the Customer (or the Customer's nominee) takes possession of or has control over the Goods even if the Company has not completed installation of the Goods at the Customer's premises. The Customer must make all arrangements to take delivery of the Goods whenever they are tendered for delivery. If the Customer is unable to take delivery of the Goods as arranged then the Company may charge a reasonable fee for re-delivery and storage costs. Unless specified by the Company, delivery costs are not included in the Price.
6.2 Any time or date given by the Company to the Customer for Delivery or completion of the works is an estimate only. Late delivery or delay to the work will not entitle the Customer to treat this Agreement as repudiated. The Company is not liable for any loss due to late Delivery.
6.3 Where the Company agrees to perform the Services:
(a) the Customer shall provide good clear access to the site to enable the Company to undertake the works;
(b) the Customer must notify the Company of the precise location and must mark the location of all hidden mains or services including but not limited to electrical, gas, water, sewer, telephone and fibre optic services, pipes, wiring, cables, mains and any other services that may be on site (called hidden services).
(c) while the Company shall take all reasonable care to avoid damage to any hidden services, the Company shall not be liable for any damage to hidden services, and the Customer shall indemnify the Company for any liability claim action damage loss costs or fines as a result of damage to hidden services not precisely located and notified as required under clause 6.3(b);
(d) subject to clause 6.3(c), the Company is not liable for loss or damage to the site except where due to the negligence of the Company.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery. If any Goods are damaged or destroyed following Delivery but prior to title passing to the Customer in accordance with clause 8.1, the Customer shall have no claim against the Company for any loss or damage. It is the Customer's responsibility to insure the Goods. The Customer must still pay the Price.
7.2 If the Customer requests the Company to deliver the Goods to an unattended location then the Goods shall be left at the Customer’s sole risk.
8. Title
8.1 The Company and the Customer agree that title and ownership of the Goods shall not pass until:
(a) the Customer has paid the Company all amounts owing to the Company in respect of the Goods; and
(b) the Customer has met all its other obligations to the Company.
8.2 Payments other than in cash are not deemed to be payment until that form of payment has been honoured, cleared or recognised.
8.3 The Customer and Company further agree:
(a) until title and ownership of the Goods passes to the Customer in accordance with clause 8.1, the Customer is only a bailee of the Goods and must at its expense return the Goods to the Company on request;
(b) the Customer must not sell, dispose of or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes of or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Company and must pay or deliver the Price from such proceeds to the Company on demand;
(c) if the Goods are not fully paid, the Customer irrevocably authorises the Company to enter into any premises where the Company believes the Goods are kept to recover possession of the Goods;
(d) the Company may recover possession of any unpaid Goods in transit whether or not Delivery has occurred; and
(e) the Company may commence proceedings to recover the Price even though ownership of the Goods has not passed to the Customer.
9. PPSA
9.1 In this clause 9, All Present and After-Acquired Property, Accessions, Commingled Goods, Financing Statement, Financing Change Statement, Purchase Money Security Interest, Registration, Security Agreement, Security Interest and Verification Statement are defined in the PPSA.
9.2 The Customer agrees that this Agreement including these terms and conditions constitute a Security Agreement for the purposes of the PPSA. The Customer grants to the Company a Purchase Money Security Interest in all Goods (including any Commingled Goods and Accessions) that have previously been supplied and that will be supplied in the future by the Company to the Customer. The Customer also grants to the Company Security Interests in the Customer's Personal Property and All Present and After-Acquired Property to secure the Customer's performance of its obligations (including payment obligations) to the Company.
9.3 The Customer agrees the Company can effect and maintain a Registration (in any manner that the Company considers appropriate) of its Security Interest on the PPSR in relation to any Security Interest created, contemplated or constituted by this Security Agreement.
9.4 The Customer undertakes to:
(a) promptly sign any documents and/or provide any information (such information to be complete, accurate and up-to-date in all respects) that the Company may reasonably require to:
(i) register a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPSR;
(ii) register any other document required to be registered by the PPSA;
(iii) correct a defect in a Financing Statement or Financing Change Statement;
(b) indemnify, and upon demand reimburse, the Company for all expenses incurred in registering or discharging a Financing Statement or Financing Change Statement on the PPSR;
(c) immediately advise the Company of any material change in its business practices of selling the Goods that would result in a change in the nature of proceeds derived from such sales.
9.5 The Customer agrees that sections 96 and 125 of the PPSA do not apply to this Security Agreement. The Customer waives its rights:
(a) to receive notices under sections 95, 118, 121(4), 130 and 132 and to receive a Verification Statement under section 157 of the PPSA;
(b) as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.6 The Customer must unconditionally ratify any actions taken by the Company under this clause 9.
9.7 Unless permitted by the PPSA, nothing in this Agreement is intended to have the effect of contracting out of any provision of the PPSA.
9.8 If the Customer defaults in payment of the Price, the Company may take any enforcement actions pursuant to the PPSA. The Customer grants access to the premises where the Goods are installed and agrees the Company may remove and retain the Goods. The Customer agrees the Company will not be liable for causing any damage to the premises and the Company will not be liable to make good any damage.
9.9 If the Customer has not fully paid for the Goods, the Customer must not grant any Security Interest in the Goods to any person.
10. Security and Charge
10.1 The Customer charges all of its rights title and interest in any land or other assets capable of being charged owned by the Customer either now or in the future to secure performance of all the Customer's obligations under this Agreement. The Customer authorises the Company to lodge at the Customer's expense a caveat against the title of any such land or assets. The Customer indemnifies the Company for all the Company’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Company’s rights under clause 10.
10.2 The Customer irrevocably appoints the Company and each of its directors as the Customer's attorney to do anything necessary to give effect to this clause 10 including but not limited to signing any document on the Customer’s behalf.
11. Guarantee and Indemnity
In consideration of the Company agreeing to supply the Goods to the Customer, the Guarantor agrees:
(a) to guarantee the due and punctual performance by the Customer of all the Customer’s obligations under this Agreement including the payment by the Customer to the Company of all monies owing by the Customer;
(b) to indemnify and keep indemnified the Company from and against all losses, damages, costs, charges and expenses whatsoever including all legal costs on a solicitor and own client basis which the Company may suffer or incur by reason of the failure or default of the Customer;
(c) and hereby charges in favour of the Company its land and other assets whatsoever and wherever situated, held now or in the future, as security for the Guarantor's obligations under this Agreement;
(d) the Company can effect a Registration on the PPSR to perfect its Security Interest. The Company's rights in clause 9 apply to the Guarantor;
(e) to sign, execute and deliver all documents and instruments to give full effect to this clause 11;
(f) that the Company and each of its directors shall be the Guarantor’s attorney to do anything necessary to give effect to this clause 11 and the Guarantor agrees to ratify all the attorney's acts;
(g) the Guarantor's liability to the Company is as principal debtor and the Company is not obliged to take action against the Customer before taking any action against the Guarantor.
12. Defects, Warranties, Competition and Consumer Act 2010 (CCA), Fair Trading Act (FTA)
12.1 The Customer shall inspect the Goods on Delivery and on installation (where installation is an agreed Service). The Customer shall within 24 hours of delivery (time being of the essence) notify the Company of any alleged damage or defect in the Goods. The Customer shall permit the Company reasonable access to the Goods to inspect the alleged damage or defect. If no notice is given strictly in accordance with this clause 12.1, the Customer is deemed to have accepted the Goods free from damage or defect.
12.2 Subject to clauses 5, 12.3 and 12.4, the Company will rectify any acknowledged defect in the Goods or workmanship if the Customer gives notice of the defect to the Company within 1 year (time being of the essence) from the date of delivery of the Goods (if the defect is in the Goods) or the completion of the Services (if the defect is in the Services). Nothing in this clause is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA, except to the extent permitted by those Acts where applicable.
12.3 The warranty in clause 12.2 shall not cover any defect or damage which may be caused or partly caused by or arise through:
(a) failure by the Customer, its employees, agents or contractors to properly maintain the Goods;
(b) failure by the Customer, its employees, agents or contractors to follow any instructions or guidelines provided by the Company;
(c) any use of the Goods other than that which is specified in the Customer's order or the Company's quotation;
(d) the continued use of the Goods after any defect becomes apparent or would have become apparent to a reasonably prudent user; or
(e) fair wear and tear, accident or act of God.
12.4 The warranty in clause 12.1 is void if the Customer, its employees, agents or contractors modifies, alters or otherwise interferes with the Goods without the Company's consent.
12.5 The Company's liability under clause 12.1 will be limited, at the option of the Company, to one or more of the following:
(a) if the breach relates to Goods: the replacement of the Goods or the supply of equivalent goods; the repair of the Goods; the payment of the cost of replacing the Goods or acquiring equivalent goods; or payment of the cost of having the Goods repaired;
(b) if the breach relates to Services: the supplying of the Services again; or payment of the cost of having the Services supplied again.
13. Exclusion of Liability
The Company will not be liable to the Customer for any actions, claims, or loss in any way arising out of or relating to the Goods for an amount greater than the Price. The Company is not liable to the Customer for any special, indirect, consequential or punitive damages costs expenses or losses of any kind, including loss of profits.
14. Customer's Waiver
14.1 The Customer warrants that it has not relied on any representation made by the Company in any form (including but not limited to the Company's marketing materials or website) which has not been stated expressly in this Agreement or on any descriptions, illustrations or specifications or any documentation provided by the Company.
14.2 To the extent the Company has made any representation which is not expressed in this Agreement or any other document, the Customer has been given the opportunity to independently verify the accuracy of that representation.
15. Default
15.1 If the Customer defaults in payment (including by way of dishonoured cheques), the Customer shall:
(a) pay interest on overdue amounts at a rate of 12% per annum accruing daily from the due date until the date of payment;
(b) indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs (on a solicitor and own client basis), reasonable administration fees, the collection agency costs and bank dishonour fees.
15.2 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under this Agreement, the Company may suspend the supply of the Goods or terminate this Agreement. The Company will not be liable to the Customer for any loss or damage the Customer suffers if the Company has exercised its rights under this clause.
15.3 Without prejudice to the Company’s other remedies at law, the Company may terminate this Agreement and all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Company becomes overdue, or in the Company’s reasonable opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors, proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors or a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
16. Termination
16.1 The Company may terminate this Agreement or cancel delivery of the Goods at any time before the Goods are delivered by giving written notice to the Customer, for any reason. On giving such notice, the Company shall refund any money paid by the Customer for the Goods. The Company shall not be liable for any loss or damage whatsoever arising from such termination. The Customer agrees that such termination shall not constitute repudiation by the Company of this Agreement.
16.2 If the Customer terminates this Agreement or cancels delivery of the Goods, the Customer shall be liable for any and all costs (including materials and manufacturing costs) or losses incurred (whether directly or indirectly including any loss of profits) by the Company arising from the termination or cancellation of the Goods. Cancellation of orders by the Customer for Goods made to the Customer’s specifications, or for unstocked Goods will not be effective once production has commenced, or an order has been placed.
17. Privacy Act 1988
17.1 In this clause 17, Customer includes the Guarantor(s) and the Customer's directors or principals; and Purpose means to assess a Customer's application; to notify other credit providers of a Customer's default; to exchange information with other credit providers as to the status of this credit account where the Customer is in default with other credit providers; or to assess the Customer's creditworthiness.
17.2 The Customer consents to: the Company obtaining from a credit reporting agency a credit report containing credit information about the Customer; the Company disclosing information about the Customer to credit reporting bodies or the Customer's credit providers for any Purpose; the Company obtaining information from credit reporting bodies or the Customer's credit providers (whether named as trade referees by the Customer or named in a credit report) for any Purpose.
17.3 The information contemplated in clause 17.2 can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit reporting bodies or credit providers are allowed to disclose under the Privacy Act 1988, the Privacy Regulations 2013 or the Privacy (Credit Reporting) Code (CR Code). This information may include: personal particulars (the Customer’s name, sex, address, previous addresses, birth date, employer name and driver’s licence number); details concerning the Customer’s application for credit or commercial credit and the amount requested; the fact that the Company is a current credit provider to the Customer; overdue amounts or any outstanding monies owing by the Customer over 60 days; information that, in the opinion of the Company, the Customer has committed a serious infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations); advice that cheques drawn by the Customer for $100 or more have been dishonoured more than once; and/or that credit provided to the Customer by the Company has been paid or otherwise discharged.
17.4 The Customer agrees that credit information about the Customer may be used and retained by the Company for any of the following purposes: the provision of Goods or the marketing of Goods by the Company; analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; collection of amounts outstanding in the Customer’s account in relation to the Goods.
18. Construction Contracts Act 2004 (WA)
At the Company’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Construction Contracts Act 2004 may apply. Nothing in this Agreement is intended to have the effect of contracting out of any provisions of the Construction Contracts Act 2004, except to the extent permitted by the Act where applicable.
19. Force Majeure
If the Company is delayed or otherwise prevented from complying with its obligations under this Agreement by reason of events beyond the reasonable control of the Company including but not limited to act of God, war, riot, strike, lock-out, trade dispute, labour disturbance, breakdown of plant or machinery, accident, storm, fire, flood, difficulty in obtaining material, goods, transport or labour or anything else affecting the supply of the Goods, the Customer agrees that both parties' obligations under this Agreement are suspended for the duration of the force majeure event. The Company is not liable to the Customer for any loss or damage suffered by the Customer as a result of any such event.
20. General
20.1 The Customer shall not set off or make any deductions from the Price or withhold payment of any invoice where part of an invoice is disputed.
20.2 The failure by the Company to enforce any provision of this Agreement shall not be treated as a waiver of that provision.
20.3 If any clause in this Agreement is invalid void illegal or unenforceable, the validity legality and enforceability of the remaining clauses are not affected, prejudiced or impaired.
20.4 The Company may license or sub-contract all or any part of its rights and obligations to any person without the Customer’s consent.
20.5 The Company may assign this Agreement to any person without the Customer’s consent.
20.6 This Agreement is governed by the laws of Western Australia, and is subject to the jurisdiction of the courts of Western Australia.
Please forward to All Things Glass a copy of these signed, witnessed and dated terms and conditions before we go ahead with this job:
Post: Unit 2/ 10 Niche Parade, Wangara WA 6065 OR Fax: (08) 9302 6225 OR Email: [email protected]
1. Definitions
1.1 Agreement means the agreement including these terms and conditions between the Company and the Customer for the supply of the Goods.
1.2 Company means Glass World Pty Ltd ABN (52 613 242 204).
1.3 Customer means the person or entity (if more than one, jointly and severally) buying the Goods as specified in the invoice or order.
1.4 Delivery has the meaning in clause 6.
1.5 Goods means all Goods supplied by the Company to the Customer under this Agreement. In context, Goods include Services.
1.6 PPSA means the Personal Property Securities Act 2009 (Cwth) as amended from time to time.
1.7 PPSR means the Personal Property Securities Register under the PPSA.
1.8 Price means the price payable for the Goods agreed between the Company and the Customer in this Agreement.
1.9 Services means all services requested and supplied by the Company to the Customer, including installation of the Goods.
2. Acceptance
2.1 The Customer accepts and is bound by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended by agreement in writing. To the extent of any inconsistency, these terms and conditions prevail over any other agreement between the Customer and the Company.
3. Change in Control
3.1 The Customer must give the Company at least 14 days prior written notice of any:
(a) proposed change of ownership of the Customer;
(b) other change in the Customer’s details (e.g. changes to the Customer’s name, address, email, contact phone or fax numbers).
3.2 The Customer is liable for any loss incurred by the Company as a result of the Customer’s failure to comply with clause 3.1.
4. Price and Payment
4.1 At the Company’s sole discretion, the Price shall be (in order):
(a) the sum on any invoice provided by the Company to the Customer in accordance with this Agreement; or
(b) the Company’s quoted price which is valid for the period stated in the quotation or if no period is stated then a period of 30 days; or
(c) the Company's current price list as at the date of Delivery.
4.2 The Customer must pay the following deposit to the Company at the time of placing the order or within a reasonable time after placing the order:
(a) 6.5% of the Price if the Price is $7,500 or more; or
(b) 50% of the Price if the Price is below $7,500.
4.3 Where the Customer supplies its own sizing, the Customer must confirm the sizing in writing by email, fax or post within a reasonable time after placing the order.
4.4 The Company will not order any glass or materials or commence any work before it receives:
(a) the deposit under clause 4.2;
(b) the sizing confirmation under clause 4.3.
4.5 To the extent permitted by law, the Customer's deposit is not refundable.
4.6 If there is any variation to the Goods or scope of Services, the Company will seek the Customer's consent before proceeding with the variation. Once the Customer consents to the variation and the price of the variation, the Customer must pay the Company for the increases to the Price.
4.7 The Customer must pay the Company's invoice (less any deposit) on the date of installation of the Goods, unless another due date is specified on the invoice.
4.8 Payment is by cash, cheque, electronic online banking, credit card or any other method agreed between the Customer and the Company.
4.9 Unless otherwise stated, the Price does not include GST. The Customer must pay GST on the Price at the same time. The Customer must also pay any other applicable taxes and duties except where these are expressly included in the Price. Time is of the essence for all payments.
5. Customer's Acknowledgements
5.1 The Customer acknowledges that the Goods may vary in its appearance or quality (e.g. in shade, colour, texture, finish) from the Company's catalogue or samples and may change colour over time. This is due to the inherent characteristics of or greenness in glass and cannot be avoided. Variations can be expected due to varying amounts of greenness in glass and varying amounts of iron in different batches of glass. Therefore the Company does not guarantee that all glass panels will match exactly. The Company will try and mitigate this risk wherever possible. If the Customer requires a closer to exact colour math, then a low-iron content glass (e.g.Optiwhite, Starphire, Daiamnt Extra Clear) must be used, and the Customer agrees to pay for any additional cost.
5.2 Painted glass is not a perfect medium and minor imperfections are a characteristic of glass. The Company will try to mitigate these imperfections but sometimes this is simply not possible. The Customer agrees to accept reasonable imperfections where these are caused by the glass manufacturing, painting process or toughening process. If there is any dispute, the Company and Customer agree to accept imperfections in accordance with ASNZS 4667-2000 Quality requirements for cut-to-size and processed glass.
5.3 The glass industry accepts a plus or minus 2mm tolerance on all dimensions. The Customer accepts the Goods and installation will not be to exact size or measurement due to practical limitations involved in working with glass, and accepts a tolerance of 5mm gap at each joint.
6. Delivery of Goods
6.1 Delivery is taken to occur at the time the Customer (or the Customer's nominee) takes possession of or has control over the Goods even if the Company has not completed installation of the Goods at the Customer's premises. The Customer must make all arrangements to take delivery of the Goods whenever they are tendered for delivery. If the Customer is unable to take delivery of the Goods as arranged then the Company may charge a reasonable fee for re-delivery and storage costs. Unless specified by the Company, delivery costs are not included in the Price.
6.2 Any time or date given by the Company to the Customer for Delivery or completion of the works is an estimate only. Late delivery or delay to the work will not entitle the Customer to treat this Agreement as repudiated. The Company is not liable for any loss due to late Delivery.
6.3 Where the Company agrees to perform the Services:
(a) the Customer shall provide good clear access to the site to enable the Company to undertake the works;
(b) the Customer must notify the Company of the precise location and must mark the location of all hidden mains or services including but not limited to electrical, gas, water, sewer, telephone and fibre optic services, pipes, wiring, cables, mains and any other services that may be on site (called hidden services).
(c) while the Company shall take all reasonable care to avoid damage to any hidden services, the Company shall not be liable for any damage to hidden services, and the Customer shall indemnify the Company for any liability claim action damage loss costs or fines as a result of damage to hidden services not precisely located and notified as required under clause 6.3(b);
(d) subject to clause 6.3(c), the Company is not liable for loss or damage to the site except where due to the negligence of the Company.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery. If any Goods are damaged or destroyed following Delivery but prior to title passing to the Customer in accordance with clause 8.1, the Customer shall have no claim against the Company for any loss or damage. It is the Customer's responsibility to insure the Goods. The Customer must still pay the Price.
7.2 If the Customer requests the Company to deliver the Goods to an unattended location then the Goods shall be left at the Customer’s sole risk.
8. Title
8.1 The Company and the Customer agree that title and ownership of the Goods shall not pass until:
(a) the Customer has paid the Company all amounts owing to the Company in respect of the Goods; and
(b) the Customer has met all its other obligations to the Company.
8.2 Payments other than in cash are not deemed to be payment until that form of payment has been honoured, cleared or recognised.
8.3 The Customer and Company further agree:
(a) until title and ownership of the Goods passes to the Customer in accordance with clause 8.1, the Customer is only a bailee of the Goods and must at its expense return the Goods to the Company on request;
(b) the Customer must not sell, dispose of or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes of or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Company and must pay or deliver the Price from such proceeds to the Company on demand;
(c) if the Goods are not fully paid, the Customer irrevocably authorises the Company to enter into any premises where the Company believes the Goods are kept to recover possession of the Goods;
(d) the Company may recover possession of any unpaid Goods in transit whether or not Delivery has occurred; and
(e) the Company may commence proceedings to recover the Price even though ownership of the Goods has not passed to the Customer.
9. PPSA
9.1 In this clause 9, All Present and After-Acquired Property, Accessions, Commingled Goods, Financing Statement, Financing Change Statement, Purchase Money Security Interest, Registration, Security Agreement, Security Interest and Verification Statement are defined in the PPSA.
9.2 The Customer agrees that this Agreement including these terms and conditions constitute a Security Agreement for the purposes of the PPSA. The Customer grants to the Company a Purchase Money Security Interest in all Goods (including any Commingled Goods and Accessions) that have previously been supplied and that will be supplied in the future by the Company to the Customer. The Customer also grants to the Company Security Interests in the Customer's Personal Property and All Present and After-Acquired Property to secure the Customer's performance of its obligations (including payment obligations) to the Company.
9.3 The Customer agrees the Company can effect and maintain a Registration (in any manner that the Company considers appropriate) of its Security Interest on the PPSR in relation to any Security Interest created, contemplated or constituted by this Security Agreement.
9.4 The Customer undertakes to:
(a) promptly sign any documents and/or provide any information (such information to be complete, accurate and up-to-date in all respects) that the Company may reasonably require to:
(i) register a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPSR;
(ii) register any other document required to be registered by the PPSA;
(iii) correct a defect in a Financing Statement or Financing Change Statement;
(b) indemnify, and upon demand reimburse, the Company for all expenses incurred in registering or discharging a Financing Statement or Financing Change Statement on the PPSR;
(c) immediately advise the Company of any material change in its business practices of selling the Goods that would result in a change in the nature of proceeds derived from such sales.
9.5 The Customer agrees that sections 96 and 125 of the PPSA do not apply to this Security Agreement. The Customer waives its rights:
(a) to receive notices under sections 95, 118, 121(4), 130 and 132 and to receive a Verification Statement under section 157 of the PPSA;
(b) as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.6 The Customer must unconditionally ratify any actions taken by the Company under this clause 9.
9.7 Unless permitted by the PPSA, nothing in this Agreement is intended to have the effect of contracting out of any provision of the PPSA.
9.8 If the Customer defaults in payment of the Price, the Company may take any enforcement actions pursuant to the PPSA. The Customer grants access to the premises where the Goods are installed and agrees the Company may remove and retain the Goods. The Customer agrees the Company will not be liable for causing any damage to the premises and the Company will not be liable to make good any damage.
9.9 If the Customer has not fully paid for the Goods, the Customer must not grant any Security Interest in the Goods to any person.
10. Security and Charge
10.1 The Customer charges all of its rights title and interest in any land or other assets capable of being charged owned by the Customer either now or in the future to secure performance of all the Customer's obligations under this Agreement. The Customer authorises the Company to lodge at the Customer's expense a caveat against the title of any such land or assets. The Customer indemnifies the Company for all the Company’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Company’s rights under clause 10.
10.2 The Customer irrevocably appoints the Company and each of its directors as the Customer's attorney to do anything necessary to give effect to this clause 10 including but not limited to signing any document on the Customer’s behalf.
11. Guarantee and Indemnity
In consideration of the Company agreeing to supply the Goods to the Customer, the Guarantor agrees:
(a) to guarantee the due and punctual performance by the Customer of all the Customer’s obligations under this Agreement including the payment by the Customer to the Company of all monies owing by the Customer;
(b) to indemnify and keep indemnified the Company from and against all losses, damages, costs, charges and expenses whatsoever including all legal costs on a solicitor and own client basis which the Company may suffer or incur by reason of the failure or default of the Customer;
(c) and hereby charges in favour of the Company its land and other assets whatsoever and wherever situated, held now or in the future, as security for the Guarantor's obligations under this Agreement;
(d) the Company can effect a Registration on the PPSR to perfect its Security Interest. The Company's rights in clause 9 apply to the Guarantor;
(e) to sign, execute and deliver all documents and instruments to give full effect to this clause 11;
(f) that the Company and each of its directors shall be the Guarantor’s attorney to do anything necessary to give effect to this clause 11 and the Guarantor agrees to ratify all the attorney's acts;
(g) the Guarantor's liability to the Company is as principal debtor and the Company is not obliged to take action against the Customer before taking any action against the Guarantor.
12. Defects, Warranties, Competition and Consumer Act 2010 (CCA), Fair Trading Act (FTA)
12.1 The Customer shall inspect the Goods on Delivery and on installation (where installation is an agreed Service). The Customer shall within 24 hours of delivery (time being of the essence) notify the Company of any alleged damage or defect in the Goods. The Customer shall permit the Company reasonable access to the Goods to inspect the alleged damage or defect. If no notice is given strictly in accordance with this clause 12.1, the Customer is deemed to have accepted the Goods free from damage or defect.
12.2 Subject to clauses 5, 12.3 and 12.4, the Company will rectify any acknowledged defect in the Goods or workmanship if the Customer gives notice of the defect to the Company within 1 year (time being of the essence) from the date of delivery of the Goods (if the defect is in the Goods) or the completion of the Services (if the defect is in the Services). Nothing in this clause is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA, except to the extent permitted by those Acts where applicable.
12.3 The warranty in clause 12.2 shall not cover any defect or damage which may be caused or partly caused by or arise through:
(a) failure by the Customer, its employees, agents or contractors to properly maintain the Goods;
(b) failure by the Customer, its employees, agents or contractors to follow any instructions or guidelines provided by the Company;
(c) any use of the Goods other than that which is specified in the Customer's order or the Company's quotation;
(d) the continued use of the Goods after any defect becomes apparent or would have become apparent to a reasonably prudent user; or
(e) fair wear and tear, accident or act of God.
12.4 The warranty in clause 12.1 is void if the Customer, its employees, agents or contractors modifies, alters or otherwise interferes with the Goods without the Company's consent.
12.5 The Company's liability under clause 12.1 will be limited, at the option of the Company, to one or more of the following:
(a) if the breach relates to Goods: the replacement of the Goods or the supply of equivalent goods; the repair of the Goods; the payment of the cost of replacing the Goods or acquiring equivalent goods; or payment of the cost of having the Goods repaired;
(b) if the breach relates to Services: the supplying of the Services again; or payment of the cost of having the Services supplied again.
13. Exclusion of Liability
The Company will not be liable to the Customer for any actions, claims, or loss in any way arising out of or relating to the Goods for an amount greater than the Price. The Company is not liable to the Customer for any special, indirect, consequential or punitive damages costs expenses or losses of any kind, including loss of profits.
14. Customer's Waiver
14.1 The Customer warrants that it has not relied on any representation made by the Company in any form (including but not limited to the Company's marketing materials or website) which has not been stated expressly in this Agreement or on any descriptions, illustrations or specifications or any documentation provided by the Company.
14.2 To the extent the Company has made any representation which is not expressed in this Agreement or any other document, the Customer has been given the opportunity to independently verify the accuracy of that representation.
15. Default
15.1 If the Customer defaults in payment (including by way of dishonoured cheques), the Customer shall:
(a) pay interest on overdue amounts at a rate of 12% per annum accruing daily from the due date until the date of payment;
(b) indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs (on a solicitor and own client basis), reasonable administration fees, the collection agency costs and bank dishonour fees.
15.2 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under this Agreement, the Company may suspend the supply of the Goods or terminate this Agreement. The Company will not be liable to the Customer for any loss or damage the Customer suffers if the Company has exercised its rights under this clause.
15.3 Without prejudice to the Company’s other remedies at law, the Company may terminate this Agreement and all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Company becomes overdue, or in the Company’s reasonable opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors, proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors or a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
16. Termination
16.1 The Company may terminate this Agreement or cancel delivery of the Goods at any time before the Goods are delivered by giving written notice to the Customer, for any reason. On giving such notice, the Company shall refund any money paid by the Customer for the Goods. The Company shall not be liable for any loss or damage whatsoever arising from such termination. The Customer agrees that such termination shall not constitute repudiation by the Company of this Agreement.
16.2 If the Customer terminates this Agreement or cancels delivery of the Goods, the Customer shall be liable for any and all costs (including materials and manufacturing costs) or losses incurred (whether directly or indirectly including any loss of profits) by the Company arising from the termination or cancellation of the Goods. Cancellation of orders by the Customer for Goods made to the Customer’s specifications, or for unstocked Goods will not be effective once production has commenced, or an order has been placed.
17. Privacy Act 1988
17.1 In this clause 17, Customer includes the Guarantor(s) and the Customer's directors or principals; and Purpose means to assess a Customer's application; to notify other credit providers of a Customer's default; to exchange information with other credit providers as to the status of this credit account where the Customer is in default with other credit providers; or to assess the Customer's creditworthiness.
17.2 The Customer consents to: the Company obtaining from a credit reporting agency a credit report containing credit information about the Customer; the Company disclosing information about the Customer to credit reporting bodies or the Customer's credit providers for any Purpose; the Company obtaining information from credit reporting bodies or the Customer's credit providers (whether named as trade referees by the Customer or named in a credit report) for any Purpose.
17.3 The information contemplated in clause 17.2 can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit reporting bodies or credit providers are allowed to disclose under the Privacy Act 1988, the Privacy Regulations 2013 or the Privacy (Credit Reporting) Code (CR Code). This information may include: personal particulars (the Customer’s name, sex, address, previous addresses, birth date, employer name and driver’s licence number); details concerning the Customer’s application for credit or commercial credit and the amount requested; the fact that the Company is a current credit provider to the Customer; overdue amounts or any outstanding monies owing by the Customer over 60 days; information that, in the opinion of the Company, the Customer has committed a serious infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations); advice that cheques drawn by the Customer for $100 or more have been dishonoured more than once; and/or that credit provided to the Customer by the Company has been paid or otherwise discharged.
17.4 The Customer agrees that credit information about the Customer may be used and retained by the Company for any of the following purposes: the provision of Goods or the marketing of Goods by the Company; analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; collection of amounts outstanding in the Customer’s account in relation to the Goods.
18. Construction Contracts Act 2004 (WA)
At the Company’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Construction Contracts Act 2004 may apply. Nothing in this Agreement is intended to have the effect of contracting out of any provisions of the Construction Contracts Act 2004, except to the extent permitted by the Act where applicable.
19. Force Majeure
If the Company is delayed or otherwise prevented from complying with its obligations under this Agreement by reason of events beyond the reasonable control of the Company including but not limited to act of God, war, riot, strike, lock-out, trade dispute, labour disturbance, breakdown of plant or machinery, accident, storm, fire, flood, difficulty in obtaining material, goods, transport or labour or anything else affecting the supply of the Goods, the Customer agrees that both parties' obligations under this Agreement are suspended for the duration of the force majeure event. The Company is not liable to the Customer for any loss or damage suffered by the Customer as a result of any such event.
20. General
20.1 The Customer shall not set off or make any deductions from the Price or withhold payment of any invoice where part of an invoice is disputed.
20.2 The failure by the Company to enforce any provision of this Agreement shall not be treated as a waiver of that provision.
20.3 If any clause in this Agreement is invalid void illegal or unenforceable, the validity legality and enforceability of the remaining clauses are not affected, prejudiced or impaired.
20.4 The Company may license or sub-contract all or any part of its rights and obligations to any person without the Customer’s consent.
20.5 The Company may assign this Agreement to any person without the Customer’s consent.
20.6 This Agreement is governed by the laws of Western Australia, and is subject to the jurisdiction of the courts of Western Australia.
Please forward to All Things Glass a copy of these signed, witnessed and dated terms and conditions before we go ahead with this job:
Post: Unit 2/ 10 Niche Parade, Wangara WA 6065 OR Fax: (08) 9302 6225 OR Email: [email protected]
