1. THE PARTIES
The Supplier: J & K Burness Pty Ltd (ACN 109 542 029) trading as John’s Doors & Gates
The Customer: ______________________________________________________________
The Premises: ______________________________________________________________
2.1. The Customer includes any person engaging the Supplier on behalf of and with the authority of the Customer that the Order is provided for.
2.2. The Order shall be defined as any request for the provision of Services by the Customer with the Supplier which has been accepted by the Supplier.
2.3. The Services include but are not limited to the supply and installation of: garage doors, automatic gates, roller shutters, remote control units, boom gates and associated works to be carried out at the Premises, including any advice or recommendations given.
2.4. The Goods are the parts, components and materials provided by the Supplier and used up by the Supplier in performing the Services.
2.5. The Premises are the land or land and buildings where the Services are to be carried out, or which are the subject of the Services to be performed.
2.6. The Price is the amount invoiced for the Services provided.
2.7. Reference to loss and damage includes Indirect, Special or Consequential loss and/or damage including i) any loss of income profit or business; ii) any loss of good will or reputation; iii) any loss of value of intellectual property.
2.8. Major failure is as defined under the Competition and Consumer Act 2010 (Cth).
2.9. GST refers to Goods and Services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST Act”) and terms used herein have the meanings contained within the GST Act.
3.1. These terms and conditions together with the Supplier’s quotation and credit application form (if any) constitute the agreement between the Supplier and the Customer (“the Agreement”).
3.2. Any Order requested by the Customer is deemed to be an Order incorporating these terms and conditions and may not be varied unless expressly agreed to by the parties in writing. In the event that an inconsistency exists and/or arises between these terms and the Order it is acknowledged between the parties that these terms and conditions will prevail.
3.3. No subsequent correspondence or document or discussion shall modify or otherwise vary these terms and conditions unless such variation is in writing and signed by the Parties.
3.4. The terms and conditions are binding on the Customer, and the Customer’s heirs, assignees, executors, trustees and where applicable, any liquidator, receiver or administrator.
3.5. In these terms and conditions, the singular shall include the plural, the masculine shall include feminine and neuter and words importing persons shall apply to corporations.
3.6. Where more than one Customer completes this Agreement each shall be liable jointly and severally.
3.7. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired and the offending provision shall be deemed as severed from these terms and conditions.
3.8. The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent but the Supplier acknowledges that it remains at all times liable to the Customer in accordance with the terms herein.
3.9. The failure by the Parties to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect a Parties’ right to subsequently enforce that provision.
3.10. The Customer acknowledges that the Supplier may detail these terms and conditions on its website. In this event, the Terms and Conditions on the Supplier’s website shall apply to any future dealings as between the parties and the Customer is deemed to have notice of any such Terms and Conditions and/or amendments.
4. QUOTATIONS AND PLACEMENT OF ORDERS
4.1. Any quotation given by the Supplier will expire after thirty (30) days.
4.2. A written quotation from the Supplier will include a scope of works detailing the specific Goods and Services to be performed by the Supplier.
4.3. The Supplier does not represent that it will provide any Goods and Services unless it is included in the quotation.
4.4. The Supplier’s quotation may require the payment of a deposit or payment of the Price by interim or progress payments made at specified intervals or stage in the completion of the Services. If a deposit is required the Supplier may not be deemed to have accepted the Customer’s request for Goods and Services unless or until such deposit has been paid.
4.5. An Order may be placed by the Customer with the Supplier either verbally or in writing however the Supplier may require the Customer to provide a written order or purchase order document on request prior to providing any Goods and Services.
4.6. The Supplier may agree to provide, on request from the Customer, additional Goods and Services not included or specifically excluded in the quotation given or in the Customer’s Order. In this event, the Supplier shall be entitled to make an additional charge. Additional Goods and Services include, but is not limited to additions alterations or amendments to the quote or scope of works (“a variation”).
4.7. All prices quoted are based on taxes and statutory charges current at the time of the quotation. Should these vary during the period from the date of the quotation to the date of the invoice, the difference will become the responsibility of the Customer and the Customer will be invoiced for the extra charge by the Supplier.
5.1. GST will be charged on the Goods and Services provided by the Supplier that attract GST at the applicable rate.
5.2. The Supplier reserves the right to change the Price in the event of a variation. Notice will be provided in writing by the Supplier within a reasonable time.
5.3. At the Supplier’s sole discretion the Price shall be either:
5.3.1. The Supplier’s quoted Price for the Order (subject to clause 5.2); or
5.3.2. As detailed on invoices provided by the Supplier to the Customer in respect of Services supplied.
6. PROVISION OF THE GOODS AND SERVICES
6.1. The Supplier reserves its right to:
6.1.1. Decline requests for any Goods and Services requested by the Customer.
6.1.2. Cancel or postpone appointments at their discretion.
6.2. Unless specified by the Supplier to the contrary in the Order or quotation, the Supplier does not warrant that it will be capable of providing the Goods and Services at specific times requested by the Customer during the term of the agreement.
6.3. Subject to otherwise complying with its obligations under the agreement, the Supplier shall exercise its independent discretion as to its most appropriate and effective manner of providing the Goods and Services and of satisfying the Customer’s expectations of those Goods and Services.
6.4. The Customer grants full access to the Supplier and its servants and agents to the Premises and shall ensure a supply of water and/or electricity (at no cost) to enable the Supplier to carry out the Goods and Services.
6.5. The Customer covenants that he is either the owner of the Premises or is acting with the express authority of the Owner and the Customer indemnifies and will continue to indemnify the Supplier thereto; including in respect of any claims for loss and damage by the owner of the Premises against the Supplier.
6.6. The Customer is responsible for obtaining all necessary permits and to mark out the site at the Premises for the provision of the Goods and Services.
7. PAYMENT AND CREDIT POLICY
7.1. Non-Account Customers must make full payment to the Supplier within fourteen (14) days from the date of issue of the invoice, unless otherwise specified or agreed between the Parties in writing.
7.2. Credit will only be granted at the sole discretion of the Supplier and upon submission of a completed Credit Application Form.
7.3. On the acceptance by the Supplier of a completed credit application form, Account Customers must make full payment to the Supplier within thirty (30) days from the date of issue of the Supplier’s invoice for the Goods and Services, unless otherwise specified in the credit application form or agreed between the Parties in writing.
7.4. Any credit, or credit limit granted by the Supplier may be revised by the Supplier at any time and at its discretion.
7.5. The Supplier reserves the right to withdraw any credit facility upon any breach by the Customer of these Terms and Conditions or upon the Customer ceasing to trade and/or being subject to any legal proceedings and/or the Customer committing an act of insolvency.
7.6. The Customer agrees that upon such withdrawal, any and all monies owing on the account shall become immediately due and payable.
Account Customer’s Privacy
7.7. The Customer agrees;
7.7.1. For the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Supplier.
7.7.2. That the Supplier may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency.
7.7.3. The Customer consent to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
8.1. For the purposes of this clause the “default date” is the day after the date by which payment of the Price in full was due to be made by the Customer to the Supplier in accordance with the agreement and the “outstanding balance” is the Price, less any payments made by the Customer prior to the default date.
8.2. To the extent permitted by law, if the Supplier does not receive the outstanding balance on or before the default date the Customer acknowledges and agrees that:
8.2.1. The Customer may be liable for a dishonoured cheque fee of $40.00 for each cheque issued by the Customer and rejected by the Supplier’s bank;
8.2.2. The Customer will be liable for interest on the outstanding balance from the default date at the rate of twelve per centum (12%) per annum calculated on a daily basis;
8.2.3. The Customer will be liable for an account keeping fee of $15.00 to be charged at the end of each calendar month after the default date until the outstanding balance has been paid.
8.2.4. In the event the Supplier refers the Customer to a debt collection agency and/or law firm for collection of the outstanding balance, the Customer shall be liable for the recovery costs incurred, and if the agency charges commission on a contingency basis the Customer shall be liable to pay as a liquidated debt, the commission payable by the Supplier to the agency, fixed at the rate charged by the agency from time to time as if the agency has achieved one hundred per cent recovery and the following formula shall apply:
|Total Debt including Commission and GST =||Original Debt x 100|
|100 – Commission % charged by the agency (including GST)|
8.2.5. In the event where the agency is Prushka Fast Debt Recovery the applicable commission rate for the amount unpaid is as detailed on www.prushka.com.au
8.2.6. In the event where the Supplier or the Supplier’s agency refers the outstanding balance to a lawyer the Customer shall pay as a liquidated debt the charges reasonably made or claimed by the lawyer on the indemnity basis.
9. RISK AND LIABILITY
9.1. The Customer will ensure when placing Orders that there is sufficient information and specifications to enable the Supplier to execute the Order, including, but not limited to advising or providing plans detailing any concealed easements, pipes or wiring and the like to the Supplier.
9.2. The Supplier takes no responsibility if the specifications provided by the Customer are wrong or inaccurate and the Customer will be liable in that event for the expenses incurred by the Supplier for any work required to rectify the Order.
9.3. The Customer acknowledges that the Supplier shall not be liable for and the Customer releases the Supplier from any loss and damage incurred as a result of delay or failure to observe any of these conditions due to an event of force majeure, being any cause or circumstance beyond the Supplier’s reasonable control.
9.4. The Customer will ensure the Premises are in a safe condition for the Supplier’s servants and agents to perform the Services, and the Customer indemnifies and agrees to keep the Supplier indemnified against any and all claims for personal injury and loss and damage arising from or in connection with failing to keep the Premises safe to work in, including but not limited to injury caused by any feature or condition of the Premises, whether or not any such feature or condition is reasonably obvious and whether or not the feature or condition is known to the Customer.
9.5. The Customer is responsible for ensuring that the Goods and any tools or equipment of the Supplier are secured at the Premises and warrants to be responsible for any loss, damage or theft of the Goods delivered by the Supplier to the Premises.
9.6. The Supplier is not liable to provide any insurance cover in relation to the provision of the Goods and Services. The Customer is responsible to effect whatever insurance cover required at his or her own expense.
9.7. Subject to the Supplier’s warranty for defective services, the Supplier’s liability for any loss and damage in associated with, arising from or in connection with the Goods and Services may not exceed the Price of the Order, including but not limited to personal injury and damage to property.
10.1. The Supplier warrants that the Customer’s rights and remedies in the agreement arising from a warranty against defects are in addition to other rights and remedies under any applicable law in relation to the goods and services to which the warranty relates.
10.2. The Supplier does not purport to restrict, modify or exclude any liability that cannot be excluded under the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as may be amended from time to time.
Warranty for Services
10.3. Provided that the Customer reports any defect in any Service provided, preferably within fourteen (14) days from the date that the defect became apparent, the Supplier will rectify any defect in the Services within a reasonable period of time.
10.4. In respect of all claims under warranty, the Supplier reserves it right to inspect the Services alleged to be defective.
10.5. To the extent permitted by law the Supplier’s liability in respect of defective services that does not constitute a major failure will be limited to:
10.5.1. The rectification by the Supplier of the defective Service; or
10.5.2. The payment of the reasonable costs of having the Services rectified or supplied again; or
10.5.3. The refund of the Price paid by the Customer in respect of the defective Service.
10.6. The Supplier shall not be liable to compensate the Customer for any reasonable delay in remedying any defective Services or in assessing the Customer’s claim.
10.7. The Customer warrants that it will use its best endeavours to assist the Supplier with identifying the nature of the defective Service claim.
Warranty for Goods
10.8. For Goods and/or components not manufactured by the Supplier, the warranty for Goods supplied shall be the current warranty provided by the manufacturer. The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer. The Supplier will use its best endeavours to assist the Customer with any claim with respect of the Goods.
10.9. For Goods supplied and/or manufactured by the Supplier, the Supplier warrants:
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 compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods or services repaired or replaced if the Goods or Services fail to be of acceptable quality and the failure does not amount to a major failure.
10.10. If the Goods and Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Supplier’s liability for a consumer guarantee under the Australian Consumer Law in relation to those Goods and Services is limited to, at the discretion of the Supplier:
10.10.1. The resupply of the Goods and Services;
10.10.2. The payment of the cost of providing the Goods and Services again.
Claims made under Warranty
10.11. Claims for warranty should be made in one of the following ways:
10.11.1. The Customer must send the claim in writing to the Supplier’s address of 19 Featherwood Road, Wagga Wagga NSW 2650;
10.11.2. The Customer must email the claim to the Supplier to email@example.com.
10.11.3. The Customer must contact the Supplier on the Supplier’s business number 0418 695 538.
11. TERMINATION AND CANCELLATION
Cancellation by Supplier
11.1. The Supplier may cancel any Order to which these terms and conditions apply at any time before payment is made by the Customer by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any sums paid in respect of the Price. The Supplier shall not be liable for any loss and damage whatsoever arising from such cancellation.
11.2. Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:
11.2.1. Any money payable to the Supplier including any progress payment becomes overdue for payment; or
11.2.2. The Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
11.2.3. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
Cancellation by Customer
11.3. The Customer may cancel any Order by providing no less than twenty-four (24) hours notice to the Supplier before the Services were due to be performed.
11.4. In the event that the Customer cancels the Order without providing the requisite notice, the Customer shall be liable for any loss and damage incurred by the Supplier (including, but not limited to, any loss of profits and Goods purchased by the Supplier to perform the Services at cost) up to the time of cancellation.
11.5. The Supplier may retain any sum or deposit paid in respect of the Price of the Order and offset such sum or deposit in satisfaction or partial satisfaction of any loss and damage suffered by the Supplier as a result of the Customer’s cancellation of the Order.
12. ENTIRE AGREEMENT
12.1. The agreement as defined herein constitutes the whole agreement between the Customer and the Supplier.
12.2. The agreement is deemed to be made in the State of New South Wales and all disputes hereunder shall be determined by the appropriate courts of New South Wales.
12.3. All prior discussions and negotiations are merged within this document and the Supplier expressly waives all prior representations made by him or on his behalf that are in conflict with any clauses in this document in any way.
12.4. Nothing in these terms and conditions is intended to have the effect of contravening any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia.