IN GLASS DESIGN PTY LTD TERMS AND CONDITIONS OF SUPPLY
1. APPLICATION OF THESE TERMS AND CONDITIONS
The Customer agrees that prior to placing an order with the Supplier the Customer has read and agreed to these Terms and Conditions as set out here under. In this agreement, “the Supplier” is In Glass Design Pty Ltd ABN 42 098 491 500 trading as In Glass Design, and its successors and assigns or any person acting on behalf of and with the authority of In Glass Design Pty Ltd; “the Customer” is the applicant named on the credit account with the Supplier or where no account exists then the legal entity or individual ordering and receiving goods and services from the Supplier and includes any person acting on behalf of and with the authority of the Customer; “Australian Consumer Law” means The Australian Consumer Law Schedule 2 of the Competition and Consumer Act 2010 (Cwth) and any other equivalent legislation; “Consequential Loss” means any loss or damage suffered by a party or any other person which is indirect or consequential, or which relates to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity; “Contract” means any signed agreement between the Supplier and the Customer; “Defect/s” means a defect, fault or imperfection in the Goods which prevents the Goods from being used for the purposes they were intended; “Goods” mean all goods sold, bailed, consigned or otherwise made available to the Customer including but not limited to splashbacks, frameless shower screens, partitions, frameless balustrades, signage and associated glass products; “GST” means goods and services tax; “PPSA” means the Personal Property Securities Act 2009 (Cth); “Services” means any agreed work to be performed by the Supplier including but not limited to the manufacture and installation of the Goods; and “Site” means the location where the Goods will be installed.
2.1 Supplier’s Quote
The Supplier will give the Customer a quote, valid for thirty (30) days, specifying the Goods and Services required to fulfill the Customer’s requirements and an estimate of the Supplier’s fee, excluding GST (as defined in the Goods and Services Tax Act 1999).
Any price indications or price lists provided by the Supplier to the Customer or otherwise made available to the Customer are subject to alteration in accordance with the price ruling at the date of ordering.
2.3 Remote Work
The Supplier may charge an additional amount to cover travel time to remote areas.
2.4 Business Hours
All Goods and Services including warranty work shall be provided during the Supplier’s normal business hours 8.30am to 4pm, Monday to Friday. Urgent work requested outside of normal business hours will be at an additional cost (details available on application to the Supplier’s office).
2.5 Acceptance of the Quote
The Customer shall accept the quote by signing and returning a true copy of the quote with a purchase order number, if applicable, or by completing the Supplier’s online quote acceptance form.
2.6 Supplier May Revise Quote
The Supplier may amend an unsigned quote after a period of thirty (30) days to take into account any rise or fall in the cost of providing the Goods and/or Services. The Supplier shall notify the Customer of such amendment as soon as practicable thereafter. The Supplier will not be obliged to process the Customer’s order until such time as the Customer agrees to the amendment of the quote.
3.1 The Customer shall indemnify the Supplier from any additional cost incurred by the Supplier should the Customer make changes to or increase the scope of the Goods and/or Services specified in the Supplier’s quote or Contract.
3.2 A variation may apply if additional work is required for the correct installation of the Goods due to walls and surfaces not being suitable for fixing the Goods.
The Customer shall reimburse the Supplier for any costs, expenses or losses incurred by the Supplier should the Customer cancel an accepted quote or Contract. All cancellations must be in writing quoting purchase order numbers (if applicable).
The Supplier may require a fifty percent (50%) deposit from the Customer and the Customer acknowledges the Supplier is under no obligation to start any order as requested by the Customer until the deposit is received by the Supplier in full and when all details pertaining to the Contract are finalised. In the event of default as to payment owing to the Supplier on the part of the Customer, the Supplier shall be entitled to forfeit the deposit and claim any profit or margin contemplated by or allowed for in the Contract in addition to any remedy available to the Supplier at law or in equity.
5.2 Balance of Payment
Unless otherwise advised in writing, the balance of the outstanding payment is due on completion of the installation or, for supply only, before dispatch or before customer pick up. The Supplier reserves the right to alter the time for payment at its discretion with notice to the Customer.
5.3 Payment Default
Should the Customer’s account exceed the Supplier’s agreed payment terms then the Supplier reserves the right to:
a) charge a monthly administration fee of twenty-five dollars ($25); and/or
b) charge interest at the rate of fifteen percent (15%) per annum calculated on a daily basis on amounts not paid when due; and/or
c) cancel or suspend any further delivery to the Customer.
The Customer must pay to the Supplier any costs, expenses or losses incurred by the Supplier as a result of the Customer’s failure to pay to the Supplier all sums outstanding as owed by the Customer to the Supplier including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.
6. SITE MEASURE AND INSTALLATION
6.1 The Customer is required to read the Supplier’s “Glass Splashback Measure and Installation” handout and comply with all instructions and requirements stated therein. All relevant fixtures and fittings must be installed prior to the date the Supplier has arranged to conduct a site measure at the Customer’s site. Additional costs may apply if the measure and/or installation is delayed or postponed because the Customer has not complied with the written instructions.
6.2 The Customer shall make access to the Site available to the Supplier for the installation of the Goods. Failure to do so may incur additional costs to the Customer.
7.1 Delivery of Goods on supply only can be arranged on a ‘supply-crate-ship’ basis if so requested.
7.2 Delivery of the Goods made to the Customer at the Supplier’s address will be on an agreed date and failure by the Customer to uplift completed Goods from the Supplier’s address on this agreed date will entitle the Supplier to raise an invoice subject to the Supplier’s payment terms (as if the Customer had taken possession of the Goods). In addition the Customer may incur storage charges estimated on a daily basis.
7.3 Delivery of Goods to a third party and/or site nominated by the Customer is deemed to be delivery to the Customer for the purpose of this agreement.
7.4 The failure of the Supplier to deliver shall not entitle either party to treat this agreement as repudiated. The Supplier shall not be liable for any loss or damage whatsoever due to the failure by the Supplier to deliver the Goods, or any part of them, promptly.
The Customer must examine the Goods (on supply only) upon collection or delivery and for Goods to be installed, then upon installation. The Customer must then notify the Supplier of any Defects by email or text within forty eight (48) hours of collection, delivery or installation. If notification of a defect is not received within this time period, then subject to the Australian Consume Law, the Customer shall be deemed to have accepted the Goods.
The risk in the Goods shall pass to the Customer upon collection or delivery of the Goods to the Customer or its agent or to a nominated third party or when the Goods have been installed by the Supplier.
10. FORCE MAJEURE
The Supplier will have no liability to the Customer in relation to any loss, damage or expense caused by the Supplier’s failure to deliver the Goods or delay in delivering the Goods as a result of fire, flood, earthquake, civil disturbance, crime, strike, lockout, inability to obtain materials or parts or any other occurrence beyond the Supplier’s control, but any such delay shall not exempt the Customer from the obligation to accept or take delivery of and pay for the said Goods.
11.1 The Goods are hereby sold and warranted against any defect in workmanship appearing under proper usage during the appropriate warranty period. Full warranty information is available on application from the Supplier’s office during the Supplier’s normal business hours 8.30am to 4pm, Monday to Friday.
11.2 No express warranty is given as to fitness or suitability of the Goods for any specific application or use unless expressly endorsed by the Supplier. To the extent permitted by the Australian Consumer Law the liability of the Supplier shall in any case be limited, at the option of the Supplier, to the repair or replacement of the defective material at the Supplier’s workshop.
11.3 The Customer acknowledges that no person representing or purporting to represent the Supplier has authority to make any representations or warranties on behalf of the Supplier other than those set out expressly in the Contract and to the extent permitted by the Australian Consumer Law, and any further express or implied representations and warranties are expressly void.
11.4 The benefits given to the Customer under the Warranty are in addition to the other rights and remedies of the Customer under the Australian Consumer Law.
11.5 The Supplier reserves the right to make null and void the warranty should the Goods be modified, altered, damaged or put to any undue stress other than in the way the Goods were designed to perform. Work and/or Services carried out on the Goods by anyone other than the Supplier or its nominated agents shall make the warranty null and void unless the Customer obtains written approval from the Supplier before any remedial work is carried out.
12.1 Non-Excludable Rights
The parties acknowledge that, under the Australian Consumer Law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Customer in relation to the provision of goods and services which cannot be excluded, restricted or modified by this agreement (“Non-excludable Rights”).
12.2 Disclaimer of Liability
The Supplier disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non- excludable Rights. To the extent permitted by law, the liability of the Supplier for a breach Non-Excludable Right is limited, at the Supplier’s option, to the supplying of the Goods and/or Services again or payment of the cost of having the Goods and/or Services supplied again.
12.3 Indirect Losses
Notwithstanding any other provision of these Terms and Conditions, the Supplier is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Customer for:
a) any increased costs or expenses;
b) any loss of profit, revenue, business contracts or anticipated savings;
c) any loss or expense resulting from a claim by a third party; or
d) any special, indirect or consequential loss or damage of any nature caused by the Supplier’s failure to deliver the Goods or complete its Services.
13. RETENTION OF TITLE
Notwithstanding the collection, delivery or installation of the Goods, title in any particular Goods shall remain with the Supplier regardless of whether the Goods are on-sold by the Customer until the Customer has paid and discharged any and all monies owing pursuant to any invoice issued by the Supplier for the Goods, including all applicable GST and other taxes, levies and duties. Goods belonging to the Supplier, whether they are installed or in storage, shall be marked permanently so they are identifiable as such. Any payment made by or on behalf of the Customer which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge the Supplier’s title in the Goods nor the Customer’s indebtedness to the Supplier and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
The Customer acknowledges that it is in possession of the Goods solely as Bailee until payment of all invoices for the Goods is made pursuant to clause 13.1 and until that time the Customer is not entitled to sell the Goods but only in the ordinary course of business and the Customer must not encumber or otherwise charge the Goods. The Customer shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery of the Goods or the installation (by the Supplier) of the Goods.
The Customer hereby irrevocably grants to the Supplier the right, at its sole discretion, to remove or repossess any Goods from the Customer and sell or dispose of them, and the Supplier shall not be liable to the Customer or any person claiming through the Customer and the Supplier shall be entitled to retain the proceeds of any Goods sold and apply same towards the Customer’s indebtedness to the Supplier.
If the Customer commits an act of bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business or breaches any fundamental clause of this agreement, then the Supplier may, without prejudice to any other remedies it may have, repossess any Goods delivered to the Customer on any account which has not been paid in accordance with the Terms and Conditions herein and commence proceedings to recover the balance of any monies owing the Supplier by the Customer.
14. PERSONAL PROPERTY SECURITIES ACT (PPSA)
14.1 In this clause, the following words have the respective meanings given to them in the PPSA: Financing Statement, Financing Change Statement, Proceeds, Register, Security Agreement, Security Interest and Verification Statement.
14.2 The Customer acknowledges and agrees:
a) that these Terms and Conditions constitute a Security Agreement that creates a Security Interest in all Goods (and Proceeds):
(i) previously supplied by the Supplier to the Customer;
(ii) to be supplied in the future by the Supplier to the Customer;
b) that the Security Interest created by these Terms and Conditions is a continuing Security Interest in all Goods (supplied now or in the future by the Supplier to the Customer) and Proceeds, which will operate (despite any intervening payment or settlement of account) until the Supplier has signed a release;
c) to waive its rights under section 157 of the PPSA and the following subsections of section 115 of the PPSA which will not apply to the Security Agreement created by these Terms and Conditions: 95, 117, 118, 121(4), 130, 132(4), 135, 143.
14.3 The Customer undertakes to:
a) keep all Goods free of any charge, lien or Security Interest except as created under these Terms and Conditions and not otherwise deal with the Goods in a way that may prejudice any rights of the Supplier under these Terms and Conditions or the PPSA;
b) sign any further documents and provide any further information (which must be complete, accurate and up-to-date in all respects) that the Supplier may require to:
(i) register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 14.3(b) (i) or 14.3(b) (ii);
c) indemnify, and upon demand reimburse, the Supplier for all fees (including actual legal fees on a solicitor/own client basis), costs, disbursements and expenses in:
(i) registering and maintaining a Financing Statement or Financing Change Statement on the Register or releasing any Goods charged thereby; and
(ii) enforcing or attempting to enforce the Security Interest created by these Terms and Conditions.
d) not register, or allow to be registered, a Financing Statement or a Financing Change Statement in respect of the Goods or Proceeds in favour of a third party, without the prior written consent of the Supplier; and
e) immediately advise the Supplier of any material change in its business details (including, but not limited to, it’s trading name, address, facsimile number) or business practices.
15. ARBITRATION & MEDIATION
Any dispute or difference between the Customer and the Supplier may be notified by a party to the other party and the parties shall firstly meet to negotiate, in good faith, resolution of the dispute and secondly, if negotiation fails to achieve a resolution of the dispute within five (5) working days of the notification of the dispute, attend mediation, administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators Australia, provided that this provision shall not prevent the Supplier from instituting legal action at any time to recover monies owing by the Customer to the Supplier.
16. BCIPA 2004 (QLD)
The Supplier may recover all or any invoices due under the Building and Construction Industry Payments Act 2004 (Qld) (“BICPA”).
17. SECURITY AND CHARGE
The Customer hereby charges all property, both equitable and legal present or future of the Customer in respect of any monies that may be owing by the Customer to the Supplier under these Terms and Conditions or otherwise and hereby authorises the Supplier or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Customer at any time.
18.1 The Customer hereby authorises the Supplier to collect, retain, record, use and disclose consumer and/or commercial information about the Customer, in accordance with the Privacy Act 1988 and the Privacy Principles outlined in the Privacy Amendment Act 2012, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by the Supplier, a debt collector, credit reporting body and/or any other individual or organisation which maintains credit references and/or default listings.
18.2 Subject to the Privacy Principles outlined in the Privacy Amendment Act 2012, the Customer further authorises the Supplier to collect, retain, record, use and disclose personal information about the Customer for the marketing of the Goods and Services provided by the Supplier.
Failure by the Supplier to enforce or delay in enforcing any right or provision of these Terms and Conditions will not constitute a waiver of such right or provision unless acknowledged and agreed by the Supplier in writing.
20. AMENDMENTS TO THESE TERMS AND CONDITIONS
The Supplier reserves the right to vary these Terms and Conditions at any time with notice in writing to the Customer. Any subsequent orders will represent the Customer’s agreement to the Terms and Conditions as amended.
Any provision in these terms and conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these terms and conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
22. GOVERNING LAW AND JURISDICTION
These Terms and Conditions are governed by the laws of the State of Queensland and the laws of the Commonwealth of Australia which are in force in Queensland. All disputes arising between the Customer and the Supplier may be submitted to a court of competent jurisdiction in Queensland selected by the Supplier and such court shall possess territorial jurisdiction to hear and determine the matter.