TERMS AND CONDITIONS FOR SUPPLY BY Skilled + Reliable Pty Ltd (ABN 86 606 798 341)
These Trading Terms & Conditions (“Terms and Conditions”) apply (unless otherwise previously agreed in writing) to the supply of Goods by S + R to a Customer from time to time. Any supply of Goods by S + R to the Customer made after the date of acceptance of these Terms and Conditions is a supply pursuant to the supply agreement constituted by these Terms and Conditions and the relevant order accepted by S + R and any such supply does not give rise to a new or separate agreement.
“Agreement” means the agreement formed by the acceptance of these Terms and Conditions by Customer, together with the relevant Quotation and Order Form. These Terms and Conditions will override any conditions contained in the Customer’s order. An Order Form that has been accepted by S + R cannot be cancelled by the Customer without obtaining the prior written approval of T rend, which it may refuse in its absolute discretion. “Customer” means the customer on the Order Form. “Goods and Services” means the goods and services supplied by S + R to the Customer. “Order Form” means the order form issued by the Customer to S + R stipulating the Goods and Services to be provided in accordance with any Quotation and issued within the valid time frame of such Quotation. “Quotation” means any quotation issued by S + R to the Customer for the supply of Goods and Services. “Terms and Conditions” means these terms and conditions for supply by S + R. “S + R” means Skilled and Reliable Pty Ltd ABN 86 606 798 341.
These Terms and Conditions form the basis upon which S + R agrees to supply Goods and Services.
Any stipulations, terms or conditions contained in the Order Form that conflict with any of these Terms and Conditions will be inapplicable to any order placed with S + R unless agreed upon in writing by S + R prior to delivery of Goods. Any person who accepts the Quotation warrants that for all purposes he/she is the duly authorised agent of the Customer and if such person is not the duly authorised agent of the Customer then in consideration of S + R performing its obligation under these Terms and Conditions, such person is deemed to be the Customer and will be bound by these Terms and Conditions.
A Quotation will be open for acceptance by a Customer for a period of 30 days from the date of Quotation unless such Quotation is withdrawn by notice in writing. Prices will be fixed for 30 days from date of acceptance of Quotation by the Customer. Thereafter, prices are subject to review by S + R and may rise or fall unless otherwise represented by S + R. Goods + Services Tax (“GST”) and any other State or Federal Tax, cartage, scaffolding and/or hoisting facilities and electrical power are not included in the Quotation unless specifically mentioned. The Customer will pay to S + R an amount equivalent to the GST payable or paid by S + R for the Goods and Services. The amount payable by the Customer in respect of the GST will be included in a tax invoice to the Customer from S + R. The window and/or door as described in the quotation and any accompanying documentation is for the unit as manufactured or supplied by S + R and specifically does not include, flashings, facings, architraves, beads, sealing or any other material required for installation. Provision and cost of scaffolding and/or hoisting facilities, if required, is the responsibility of the Customer and Customer must ensure such work conforms with any statutory requirements in force at that time and is suitable for S + R’s needs unless otherwise represented by S + R. Prices quoted are subject to the Customer taking delivery of the whole amount stated in the Quotation. Where additional costs are incurred by S + R from the imposition of a special site allowance, or allowances applying to a project of which S + R was not advised in writing before the date of Quotation or where special site allowance or allowances apply to a project are not allowed for, such additional costs relating to new or additional site allowances must be paid by the Customer to S + R as amounts payable in addition to the sum stated in the Agreement.
The Customer must check all details of the Goods and Services in the Quotation and/or Order Form in relation to quantities, description, sizes, dimensions, colour, glass (if not clear float) and accessories. Unless otherwise represented by S + R, S + R will be responsible for the accuracy of measurements only where S + R has agreed to do so at the Customer’s request. Unless S + R agrees otherwise, orders must be signed by the Customer or its duly authorised agent, stating full details in writing and must be delivered to S + R at the time of acceptance of the Quotation. All variations to an order must be in writing and include agreed value to be added to or deducted from the original order value. In the event of a Customer making any variation to an order after production has commenced, the Customer must pay for all work carried out in relation to such alteration. In the event of the Customer’s cancellation of an order the Customer is liable to pay for work done pursuant to the order up to the date of such cancellation and to pay S + R compensation for losses incurred by S + R as a result of such cancellation. Time will not be deemed to be the essence of any order, unless expressly agreed between S + R and the Customer.
Should delivery or installation of materials by S + R be interrupted or delayed by the failure of the Customer to adhere to the building schedule agreed to between the Customer and S + R, S + R will be entitled to add to the sum stated in the Agreement the amount of such additional costs including any reasonable storage, handling or demurrage costs which may have been incurred in consequence of S + R procuring materials and/or proceeding with manufacture and/or delivery to site in conformity with such schedule. Risk in the Goods shall pass to the Customer on delivery to the site nominated by the Customer, provided delivery is between 7.00 a.m. and 4.00 p.m. Monday to Friday or such other time as the Customer and S + R agree. If at the time of such delivery the Customer is absent from the site, delivery shall be deemed to have been made at the place and time and the date certified by the carrier of the Goods. Any times or dates quoted for delivery and installation are estimated as accurately as possible, but in the absence of any specific representations, are not guaranteed nor is any such estimate of essence to or a condition of the Agreement and is subject to extension time to cover delay caused by lockouts, breakdowns, delays in transport, strikes, fire, non-delivery of raw materials and/or other items required for completion of the order or any cause beyond S + R’s control. S + R will not be responsibility for loss, damage or delay from any of the above causes outside S + R’s reasonable control and in such cases the Customer is not entitled to any compensation of any nature. The Customer is not relieved from any obligation to accept or pay for Goods by reason of any delay in delivery or despatch. Protection and insurance of the Goods delivered will not be the responsibility of S + R from the time of delivery. S + R and the Customer agree that delivery of the Goods will be effected during normal working hours for the building industry to the site nominated on the Order Form.
RETENTION OF TITLE
Notwithstanding that risk in the Goods may pass to the Customer, property in and title to the Goods will not pass to the Customer until those Goods and all other amounts owed to S + R by the Customer (regardless of any credit period) have been paid for in full and until then: the Customer will hold the Goods as bailee for S + R; the Goods must be stored separately and in a manner enabling them to be identified and cross- referenced to particular invoices and the Customer acknowledges that if it should mix the Goods with other products or items such that the Goods are no longer separately identifiable then the Customer and S + R will be owners in common of the new product; the Customer may sell the Goods in the ordinary course of its business as agent for S + R and will hold the proceeds of sales in a separate account on trust for S + R and account to S + R for those proceeds; and S + R may require the Customer to return the Goods to it on demand and may enter upon the premises of the Customer or controlled by the Customer to inspect or repossess the relevant Goods. In the event that the Customer uses the Goods in some manufacturing or construction of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for S + R. Such part will be an amount in dollar terms to the amount owing by the Customer to S + R at the time of the receipt of such proceeds. The Customer will pay S + R such funds held in trust upon demand by S + R.
PERSONAL PROPERTY SECURITIES ACT (“PPSA”)
Defined terms in this clause have the same meaning as given to them in the PPSA. S + R and Customer acknowledge that these Terms and Conditions constitute a Security Agreement and gives rise to a Purchase Money Security Interest (PMSI) in favour of S + R over the Goods supplied or to be supplied to the Grantor pursuant to these Terms and Conditions. The Goods supplied or to be supplied under these Terms and Conditions fall within the PPSA classification of “Other Goods” acquired by the Customer pursuant to these Terms and Conditions. S + R and the Customer acknowledge that S + R as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to the Customer as Grantor under these Terms and Conditions on the PPSA Register as Collateral. To the extent permissible at law, the Customer: waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to S + R. agrees to indemnify S + R on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the; registration or amendment or discharge of any Financing Statement registered by or on behalf of S + R; and enforcement or attempted enforcement of any Security Interest granted to S + R by the Customer. agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms and Conditions or the Security under these Terms and Conditions; agrees to waive its right to do any of the following under the PPSA: receive notice of removal of an Accession under section 95; receive notice of an intention to seize Collateral under section 123; object to the purchase of the Collateral by the Secured Party under section 129; receive notice of disposal of Collateral under section 130; receive a Statement of Account if there is no disposal under section 130(4); receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged. receive notice of retention of Collateral under section 135; redeem the Collateral under section 142; and reinstate the Security Agreement under section 143.
S + R’s standard range of windows, louvres and doors are produced in accordance with standard industry specifications and are suitable for installing in Terrain Category 3 (fully sheltered) as defined in Australian Building Standard AS4055. The Customer is responsible for advising S + R in writing if Goods are required to comply with the specifications and ratings of other Terrain Categories or any other relevant building code, or any other applicable Australian Standard. The Customer must inform S + R on the Order Form as to any specific purpose for which the Goods are to be used.
WARRANTY AND COMPLIANCE
(a) The following statement only applies to a consumer sale of goods or services as defined in the Australian Consumer Law: Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure. S + R warrants that all Goods supplied (with the exception of consumables such as fly mesh and beading) will be free from defects arising from faulty workmanship or materials for a period of six (6) years (one (1) year for Goods considered by S + R as moving parts, including but not limited to hardware) from date of delivery and warrants that services will be rendered with due care and skill. These warranties are subject to the following conditions being complied with by the Customer: The Goods are installed (where Goods are not installed by S + R) and maintained in accordance with the manufacturer’s recommendations (refer to S + R’s Installation Guide and Care and Maintenance Guide, available from S + R’s Sales offices) and has not been subject to misuse, abuse or neglect; Timber Goods are sealed (within one (1) month of delivery) with two coats of paint, varnish or sealer to both faces and edges including top and bottom. Exterior quality finishes in light reflective colours (NOT dark colours) must be applied to all Goods exposed to direct sunlight or the elements; All solid construction timber doors are hung with two (2) 100mm hinges; A warp in a door will not be considered a defect unless it exceeds 4mm for doors up to 2,150mm high, 6mm for door heights between 2,150mm and 2,400mm and 7mm for door heights above 2,400mm; Notwithstanding clause 9(a), the liability of S + R in respect of a breach of a consumer guarantee or any warranty made under these Terms and Conditions for any Goods not of a kind ordinarily acquired for personal, domestic or household use is limited, to the extent permitted by law and at the option of S + R to: in the case of supply of Goods; replacing the Goods or the supply of equivalent Goods; the repair of the Goods; the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or the payment of the cost of having the Goods repaired. in the case of supply of Services; the supplying of the Services again; or the payment of the cost of having the Services supplied again. To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms and Conditions are excluded and S + R is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for: any increased costs or expenses; any loss of profit, revenue, business, contracts or anticipated savings; any loss or expense resulting from a claim by a third party; or any special, indirect or consequential loss or damage of any nature whatsoever caused by S + R’s failure to complete or delay in completing the order to deliver the Goods. To claim the warranty provided under this clause, the Customer must, within 7 days of identifying the defect in the Goods, provide written notice of the defect to the supplier from whom the Goods were purchased or to the nearest S + R location listed on the S + R website. Further details of the procedure for making a warranty claim are available on S + R’s website www.S + Rwindows.com.au. Where S + R determines that the Customer is entitled to the warranty under this clause and the Goods have not been affixed to property to the extent that S + R cannot easily remove the Goods from the property, S + R agrees to bear the cost of claiming the warranty. Compliance Certificate. S + R reserves the right to issue a compliance certificate to the customer provided the terms of trade as defined by the terms and conditions of sales are complied with by the customer. S + R will issue a certificate of compliance for a fee of $960 plus GST. This fee will be waived provided the terms and conditions are adhered to by the customer. The benefits provided to the Customer by the warranty are in addition to other rights and remedies available to the Customer under law.
The Customer will indemnify and keep indemnified S + R and its successors and assigns from and against any liability and any loss or damage S + R may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms and Conditions by the Customer or its representatives.
DISPUTES AND JURISDICTION
The proper law of all contracts arising between S + R and the Customer is dependent upon the State or Territory of Australia in which the Goods are supplied and the law to be applied is the law of that State or Territory and the parties agree to submit to the jurisdiction of the Courts of that State or Territory. All claims by the Customer in respect of the Goods or Services must be in writing.
Customer with approved credit accounts must make payment in full for all Goods and Services no later than the last business day in the month, following delivery of Goods or provision of Services (i.e. net 30 days). Unless otherwise agreed in writing, a Customer who has not been granted an approved credit account must pay a deposit equal to 50% of the net order value upon placement of the order and the balance no later than eight (8) business days prior to the agreed delivery date. Goods will be invoiced on delivery. Fly screens and/or fly wire doors may, at the request of the Customer, be held in storage free of charge for a period not exceeding 90 days and if Goods are held in storage, delivery will be deemed to have been effected on the issue of the invoice. Such storage will not affect the operation of clause 12 (e). In the event that the Customer purports to terminate and/or repudiate or cancel the Agreement, or if S + R terminates the Agreement pursuant to these Terns and Conditions, then, without prejudice to S + R’s other rights and remedies, S + R may recover from the Customer all costs and expenses incurred by S + R in its performance of the Agreement, and all loss and damages arising from or related to the termination or repudiation. S + R may, without prejudice to any other rights it may have, refuse to supply or deliver further Goods to the Customer detailed in the Quotation or otherwise until such time as the Customer has remedied the default. Should payment remain outstanding beyond S + R’s payment terms as outlined in subclause 12 (a) or 12 (b) as the case may be, the Customer agrees to pay interest on all amounts outstanding from the due date until the date of payment at 1.5% per month. If in the opinion of S + R the credit worthiness or credit standing of the Customer alters from that indicated by the Customer in any application for credit executed by the Customer, S + R has the right to immediately stop supply to the Customer without being obligated to give the Customer any reason whatsoever and has the right to demand payment in full for any outstanding account within seven (7) days. Should S + R exercise its right pursuant to subclause (f) above S + R may refuse to deliver further supplies to the Customer unless such supplies are paid by the Customer in cash before delivery. A statement in writing made up from the books of S + R and signed by any manager or accountant of S + R as to monies owing in respect of the account of the Customer at the date mentioned shall be prima facie evidence that such money is so owing. Should payment remain outstanding beyond S + R’s payment terms the Customer is liable for all costs including legal costs (on a Solicitor/Own Client basis) and mercantile agents’ fees incurred by S + R in recovering the amount outstanding. If the Customer carries on business under a business name the Customer must notify S + R in writing of any change of ownership of the business name within seven days of the change and will indemnify S + R against any loss or damage suffered by S + R as a result of the Customer’s failure to notify S + R of such change.
Customers may pay tax invoices issued by S + R by cash, direct deposit, bank cheque, personal cheque, money order. Customers may not set off against any payment due any amount(s) the Customer claims for return of Goods, short deliveries, incorrect or defective Goods.
LIEN AND CHARGE
The Customer hereby acknowledges and agrees that S + R has a lien over all Goods in its possession belonging to the Customer to secure payment of any or all amounts outstanding from time to time. The Customer hereby charges all real estate owned by the Customer at any time in respect of any monies that may hereinafter be owing to S + R under these Terms and Conditions by the Customer or otherwise and hereby authorises S & R or S + R’s solicitors to execute any consent form as its attorney for the purpose of registering a caveat over the title to any real estate owned by the Customer at any time.
Where Goods are manufactured to the Customer’s specification, the Customer will indemnify and keep indemnified S + R against any liability to or action by a third party for infringement or alleged infringement of a patent, registered design, trademark or copyright arising from S + R complying with the Customer’s specification. No right or licence is hereby granted to the Customer to use any patent, copyright, registered design, trademark or other industrial property right of S + R or otherwise.
S + R reserves the right to supply Goods of more recent or modern design if the cost of same is no higher and its performance equals or exceeds that of the Goods originally specified.
Obligations and rights under these Terms and Conditions cannot be assigned or transferred to any third party without S + R’s written consent.
WAIVER OF CONDITIONS
Failure by S + R to insist upon performance of any term, warranty or condition of these Terms and Conditions will not be deemed a waiver thereof or of any rights S + R may have and no express waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.