“Seller” means Lockmate, Door Trade, The Doors or Sterling Doors, its successors and assigns or any person acting on behalf of and with the authority of Lockmate, Door Trade, The Doors or Sterling Doors.
“Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
“Goods” means all Goods or Services supplied by the Seller to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Seller and the Client in accordance with clause 8
“GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Seller. Inconsistency with any other document or agreement between the Client and the Seller.
The Client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, the Seller reserves the right to vary the Price with alternative Goods as per clause 2. The Seller also reserves the right to halt all Services until such time as the Seller and the Client agree to such changes. The Seller shall not be liable to the Client for any loss or damage the Client suffers due to the Seller exercising its rights under this clause.
All literature, samples, specifications, submitted with this quotation is expressly illustrative and is by way of a general description of Goods only in accordance with industry standards. Any descriptions, dimensions or specifications contained in catalogues and other advertising material while being as accurate as possible but may not necessarily be identical with products and Services the Seller is to supply. The Seller will not accept liability to the Client for quality of Goods which comply with accepted industry standards.
The Seller will only provide Services applicable to the installation of the Goods, and will not perform/does not provide any other Services required to accompany the complete installation of the Goods, including, but not limited to, repair work relating to any tiling, electrical work regarding alarms (including removal of light and power points and/or sensors), brickwork (including, cutting and/or laying), timber or studwork, timber panels/rendering/wall cladding, gyprocking, gyprock setting, engineering structural work, cement work, or any plumbing. Where repair work is needed, the Seller recommends that the Client engages the appropriate licenced trades to complete such repairs.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
The Client acknowledges and accepts that Goods ordered by the Client or the Seller to perform the Services as requested by the Client are correct and suitable for their intended use. Where the Client changes their mind (including, but not limited to, changes in the type of hardware, door design, or configuration of the layout), after the installation of the Goods by the Seller, the Seller reserves the right to charge the Client a call-out fee to return to the site and all additional Goods and Services required will be charged for as a variation to the invoice in accordance with clause 2(c).
The Seller may, at its discretion recommend trade contractors such as painters. The Seller takes care to ensure that these trades are competent and trained, and:
should the Client need to make any claim in regards to damage, loss, the performance or conduct of the tradesperson then the Client agrees to make such claim direct to the tradesperson in the first instance and shall only involve the Seller in such a claim if the Client is unable to resolve the issue with the tradesperson;
the Client shall not withhold payment from the Seller even if any recommended trades have not completed their work.
Seller’s Manufacturer Lead Time
The Client acknowledges and accepts that unless otherwise stated by the Seller all manufacture lead times will be:
from the date of order:
Parkwood doors five (5) to seven (7) weeks;
local imported, Hume and Corinthian doors two (2) to five (5) weeks.
The Client acknowledges and accepts that unless otherwise stated by the Seller all quotations will be:
subject to standard widths and heights for the Goods as follows:
internal doors 2040x520/620/720/770/820X35mm;
external doors 2040x820x40mm; and
including the install of door handles provided on the day of the installation and prior to any painting of the Goods, in the event the Client requests the Seller to install the door handles after any painting is completed and then requires additional Services, this will be charged for as a variation in accordance with clause 2;
any studwork, electrical wiring, alarms, overhead wiring that is due to removal of an existing frame or above or around the opening which shall be the Client’s responsibility;
any repair work of any electrical, plumbing or tiling
Furthermore, the Client acknowledges and accepts that unless otherwise stated by the Seller all quotations for door replacement will only include:
the installation of a new door into the Client existing frame (where existing doors will be replaced by new doors):
will not include any additional Services required (including but, not limited to, any patching, filling, or fixing of the existing door frame, or fixing loose frames) to bring the Client existing frame up to the appropriate standard in order to withstand the installation of the new door; and
no responsibly shall be taken by the Seller for the existing frame, studwork, bricks, tiles, timber flooring, sandstone, whether in floor or wall not being square or level.
The Seller expressively advises that they do not install internal doors externally. In the event the Client orders an internal door to be install to an external frame, the Seller reserves the right to refuse to provide the installation Services. The Seller shall not be liable for any defect or damage resulting from the installation carried out for said Goods by any other third party. Any warranty originally provided for the Goods valid will become null and void
For the sake of clarity, the Seller’s Goods are supplied as:
Internal Hume Doors: - are pre-primed face only (ready for paint);
External Durocote Skin: - is pre-primed face only (ready for paint). SPM Skin Doors are raw products;
Solid Maple, Cedar, American Oak, New Guinea, Rosewood, American White Ash and Tasmanian Oak Timber Doors: - are supplied as raw products.
Where the Client requests the Seller to remove the existing door after a quotation has been presented, the cost of such door removal shall be two hundred and fifty dollars ($250).
Unless otherwise limited as per clause 2 the Client agrees that should the Client introduce any third party to the Seller as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods or Services on the Client’s behalf and/or to request any variation to the Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies the Seller in writing that said person is no longer the Client’s duly authorised representative).
In the event that the Client’s duly authorised representative as per clause 1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise the Seller in writing of the parameters of the limited authority granted to their representative.
The Client specifically acknowledges and accepts that they will be solely liable to the Seller for all additional costs incurred by the Seller (including the Seller’s profit margin) in providing any Goods, Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 2 (if any)).
Change in Control
The Client shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Seller as a result of the Client’s failure to comply with this clause.
The Client acknowledges and agrees that:
the Seller does not guarantee the website’s performance;
display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by the Seller
on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
there are inherent hazards in electronic distribution, and as such the Seller cannot warrant against delays or errors in transmitting data between the Client and the Seller including orders, and you agree that to the maximum extent permitted by law, the Seller will not be liable for any losses which the Client suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
when making a transaction through the website, the Client’s information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that the Client information cannot be read by or altered by outside influences;
if the Client is not the cardholder for any credit card being used to pay for the Goods, the Seller shall be entitled to reasonably assume that the Client has received permission from the cardholder for use of the credit card for the transaction.
The Seller reserves the right to terminate the Client’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of the Seller’s business, or violated these terms and conditions.
Price and Payment
At the Seller’s sole discretion, the Price shall be either:
as indicated on any invoice provided by the Seller to the Client; or
the Price as at the date of delivery of the Goods according to the Seller’s current price list; or
the Seller’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
The Seller reserves the right to change the Price:
if a variation to the Goods which are to supplied is requested; or
if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested, (including, but not limited to, door height and widths requested outside standard quoted sizes or installing door handles after painting of the Goods); or
if additional Services are requested beyond the original quote (including but not limited to, painting, staining or undercoating the Goods or the disassembly/removal of any existing doors.); or
if during the course of the Services, the Goods cease to be available from the Seller’s third party supplier, then the Seller reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or
where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, availability of machinery, limited access to the site, poor weather conditions, prerequisite work by any third party not being completed, any electrical and/or wiring (including alarms) Services are required, inaccurate structural measurements, or change of design, etc) which are only discovered on commencement of the Services; or
Notwithstanding 2 the Client agrees to inspect the Goods/Services prior to or at the time of installation. In the event of a variation, the Client shall be required to respond to any variation immediately upon advice (either verbally or written) from the Seller. At the sole discretion of the Seller, the Seller reserves the right to halt all Services until such time as the Seller and the Client agree to changes to the plans and/or specifications as outlined in the quotation to incorporate such variances. The variances once approved shall be detailed in writing and charged for on the basis of the Seller’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
At the Seller’s sole discretion, a non-refundable deposit of up to fifteen percent (15%) of the Price shall be required upon acceptance of the quotation, prior to commencement of the Services.
Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by the Seller, which may be:
on or before delivery of the Goods;
on completion of the Services;
by way of progress payments in accordance with the Seller’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Goods delivered to the site but not yet installed. Unless otherwise specified, such progress payment claims shall be based on:
a non-refundable deposit upon acceptance of the quotation;
a final payment due at the time of Delivery and/or on installation.
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Seller.
Payment may be made by cash, bank cheque, electronic/on-line banking, eftpos, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Seller.
The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Delivery/Provision of Goods
Delivery (“Delivery”) of the Goods is taken to occur at the time that:
the Client or the Client’s nominated carrier takes possession of the Goods at the Seller’s address; or
the Seller (or the Seller’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
Where the Seller is supplying Goods only, the Goods will only be delivered to a street address. In the event the Client’s nominated address is an apartment building, the Seller reserves the right to refuse delivery the Goods in which case the Client will be required to take possession of the Goods and the Seller’s address.
Where the Client has requested the Seller is to supply and install the Goods, at the Seller’s sole discretion, installation Services provided by the Seller is only applicable within the Sydney metro area.
At the Seller’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price. Interstate delivery of Goods must be paid for prior to dispatch, unless otherwise agreed.
The Seller may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Subject to clause 7 it is the Seller’s responsibility to ensure that the Services start as soon as it is reasonably possible.
The Services commencement date will be put back and the completion date extended by whatever time is reasonable in the event that the Seller claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Seller’s control, including but not limited to any failure by the Client to:
make a selection; or
have the site ready for the Services; or
notify the Seller that the site is ready.
Any time specified by the Seller for delivery of the Goods is an estimate only and the Seller will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Seller is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.
At the Seller’s sole discretion, confirmation of delivery in writing may be required.
The Client shall ensure that the Seller has clear and free access to the work site at all times to enable them to undertake the Services. The Seller shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Seller.
Where the Client’s nominated address for installation has limited access, (including, but no limited to no elevator access in apartment buildings) which will delay or interrupt the installation schedule, any additional costs will be invoiced to the Client as a variation in accordance with clause 2.
Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
If the Client requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
Timber is a:
natural product and as such colour, shade tone, markings, and veining may vary from samples provided. Whilst the Seller will make every effort to match sales samples to the finished Goods the Seller accepts no liability whatsoever where the samples differ to the finished Goods; and
hygroscopic material subject to expansion and contraction; therefore, the Seller will accept no responsibility for cracks that may appear in the doors during prolonged dry periods.
The Seller provides a range of standard colours which have been brought to the Client’s attention. If the Client orders a non-standard colour, the Seller requires the Client to furnish the Seller with the correct colour reference. The Seller undertakes to take all possible measures to match, as best as possible, the Client’s choice of colour, however, the Seller makes no guarantee regarding the matching of colours or quality of the surface finish.
The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface, finish. Whilst all care shall be taken, in the case of Goods ready for dispatch to the Client (regardless of whether the Seller’s packaging or the Client’s supplied packaging is used or no wrappings are used), the Seller will not accept any liability for any loss or damage that may occur to the Goods due to failure of adequate protection provided by the Client or the Client’s agent. Once the Client has inspected the Goods at delivery or at the time of pick-up and the Client acknowledges the Goods are considered free of any defects then all risk passes to the Client in the event of any further alleged damage caused after delivery and/or pick-up. Additional wrappings are subject to additional costs.
The Seller shall not be liable for any defect or damage resulting from incorrect or faulty installation carried out by any other third party.
The Client acknowledges that the Seller is only responsible for parts that are replaced/supplied by the Seller and does not at any stage accept any liability in respect of components supplied by any other third party that subsequently fail and are found to be the source of the failure, the Client agrees to indemnify the Seller against any loss or damage to the Goods, or caused thereby, or any part thereof howsoever arising.
Where the Client has supplied goods for the Seller to complete the Services (including, but not limited to hands or other hardware), the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the goods. The Seller shall not be responsible for any defects in the goods, any loss or damage to the Services (or any part thereof), howsoever arising from the use of goods supplied by the Client.
Any advice, recommendation, information, assistance or service provided by the Seller in relation to Goods provided is given in good faith, is based on Seller own knowledge and experience and shall be accepted without liability on the part of the Seller and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods.
The Client acknowledges and accepts that:
manufactured Goods may have slight scratches or imperfections resulting from transporting and such imperfections shall not be considered a defect or subject for a warranty claim. The Seller recommends that in such situations, that the Goods will require professional painting or staining; and
that buildings may settle which may affect old and existing frames, foundations, brick peers and concrete slabs, and therefore the Seller shall not be held liable for any loss or damage which may affect the Goods; and
the Seller shall not warrant nor install hardware, doors or timber that have not been supplied by the Seller;
the Seller shall not reimbursement the Client for any costs associated with painting of the Goods or installation.
Installation and Completion
The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation thereof and are of suitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos, termites, defective or unsafe framing) that the Seller, or the Seller’s employees, reasonably form the opinion that the Client’s premises is not safe for the Services to proceed then the Seller shall be entitled to delay the provision of the Services (in accordance with the provisions of clause 7 above) until the Seller is satisfied that it is safe for the installation to proceed.
The Client accepts that some Goods to be installed:
are for property protection purposes and are deemed to be deterrents only; and
do not guarantee the site will be free from malicious damage or losses caused by attack, break and/or enter.
The Client acknowledges and agrees that whilst the Seller shall take all reasonable care during the performance of the Services, the Client agrees that the Seller shall not be held liable for any loss, damages, or costs howsoever resulting from drilling or fixing the Goods into any masonry or rendered surfaces during the installation process. Due to the nature of the surfaces, cracking or collapsing may occur.
The Seller shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises be unable to accommodate the installation.
In the event that the Seller is requested by the Client to remove door hardware or requests a different door design or a new size of doors, opening or configurations of layout after the installation of the Goods, then the Seller reserves the right to charge the Client a call-out fee of one hundred and fifty ($150) plus an hourly rated at the Seller’s current rate plus Goods to return to the site unless otherwise agreed between the Seller and the Client, which becomes due and payable on completion.
Once the Seller has completed the scope of Services that the Seller was engaged to do, payment shall become due as per clause 8 regardless of whether or not the project, in its entirety, is completed.
The Seller shall not be liable if the Client does not follow the Seller’s recommendation to:
seal and/or paint the Goods within seven (7) days after the installation; and
seal and/or paint solid timber doors with an oil based formula; and
seal and/or paint Hume, Corinthian, Parkwood, and imported doors in either an oil base or water base formula and must be in a light reflective colour as any dark colours can bow, twist, crack or de laminate when exposed to heat which may void any applicable warranty; and
in the event any of the Seller’s recommendation are not adhered to:
the Client accepts and acknowledges that the Seller shall not be liable in any way whatsoever for any damages or losses (including where the door/s become ajar, rub or fail to seal) that occurs after the completion of the Services, nor will any such be deemed a defect or for a warranty claim; and
if the Client requires the Seller to do additional Services to repair any defects resulting, this will be charged for and invoiced as a variation in accordance with clause 2; and
at the Seller’s sole discretion, the Seller may charge a call-out fee of one hundred and seventy-five dollars ($175) to perform such additional Services such as to trim unsealed doors after installation.
Accuracy of Client’s Plans and Measurements
In the event the Client gives information relating to the Goods (including plans, specifications, measurements, quantities and other information provided by the Client):
it is the Client’s responsibility to verify the accuracy of the information before the Client or the Seller places an order based on the information. The Seller accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause;
the Seller shall be entitled to rely on the accuracy of such information. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, the Seller accepts no responsibility for any loss, damages, or costs however resulting therefrom.
Dimensions, Plans and Specifications
All customary building industry tolerances shall apply to the dimensions and measurements of the Goods, unless the Seller and the Client agree otherwise in writing.
It is the Client responsibility to provide access to the work site, including but not limited to:
have all areas clean and clear to enable scheduled work to be completed by the Seller, in accordance with the schedule of installation;
fully disclose any information in writing, prior to the scheduled installation, that may affect the Seller’s installation procedures;
make the premises available for installation on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between the Seller and the Client, any additional costs will be invoiced to the Client as an extra:
ensure the existing frames, openings are level and square to enable the installation of the new door frame by the Seller, any additional Services required to bring the Client premises up to the appropriate standard in order for the existing frame to withstand the installation thereto will be charge accordingly and be invoiced as a variation in accordance with clause 2(c).
It shall be the Client’s responsibility:
to remove existing doors and frames prior to the Seller installing the Goods;
to ensure existing openings are level and square prior to the installation of a new frame installation
The Seller is not responsible for the removal of rubbish from or clean-up of the building/constructions site/s, or removal of any electrical wiring, alarms, light switches or power-points. This is the responsibility of the Client or the Client’s agent. Under no circumstances will the Seller handle removal of asbestos product, broken concrete, glass or tiles.
Compliance with Laws
The Client and the Seller shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods, including any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Goods.
The Seller and the Client agree that ownership of the Goods shall not pass until:
the Client has paid the Seller all amounts owing to the Seller; and
the Client has met all of its other obligations to the Seller.
Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 1:
the Client is only a bailee of the Goods and must return the Goods to the Seller on request.
the Client holds the benefit of the Client’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.
the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
the Client irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods.
the Seller may recover possession of any Goods in transit whether or not delivery has occurred.
the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Seller.
the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 2009 (“PPSA”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to the Seller for Services – that have previously been supplied and that will be supplied in the future by the Seller to the Client.
The Client undertakes to:
promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to;
register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
register any other document required to be registered by the PPSA; or
correct a defect in a statement referred to in clause 3(a)(i) or 19.3(a)(ii);
indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Seller;
immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
The Seller and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by the Seller, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
The Client must unconditionally ratify any actions taken by the Seller under clauses 3 to 19.5.
Subject to any express provisions to the contrary (including those contained in this clause 19) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
In consideration of the Seller agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Client indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
The Client irrevocably appoints the Seller and each director of the Seller as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 20 including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
The Client must inspect the Goods on delivery and must within twenty-four (24) hours of delivery notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Seller to inspect the Goods.
Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Seller makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Client is a consumer within the meaning of the CCA, the Seller’s liability is limited to the extent permitted by section 64A of Schedule 2.
If the Seller is required to replace the Goods under this clause or the CCA, but is unable to do so, the Seller may refund any money the Client has paid for the Goods.
If the Client is not a consumer within the meaning of the CCA, the Seller’s liability for any defect or damage in the Goods is:
limited to the value of any express warranty as specified in the “Warranty against Defects” documentation provided to the Customer by the Supplier, at the Supplier’s sole discretion which may be an expressed warranty that will cease in respect of the Goods supplied from the date of installation in accordance with clause 5 of the Supplier’s Terms and Conditions of Trade subject to:
two (2) years on imported veneer solid doors;
five (5) years on Hume and Corinthian doors;
five (5) years on Parkwood Doors, Tasmanian Oak, Americal Ash, American Oark, New Guinea Rosewood, Kwila, Cedar solid doors;
ten (10) years on fibreglass;
five (5) years on the aluminium range.
limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Goods;
otherwise negated absolutely.
There is no warranty cover for overhead door protections in relation to Hume doors and imported veneer MDF doors.
At no time will a warranty be transferrable. Any warranty offered is made only to the original Client who must produce the original sales invoice at the point of submitting a warranty claim.
Subject to this clause 21, returns will only be accepted provided that:
the Client has complied with the provisions of clause 1; and
the Seller has agreed that the Goods are defective; and
the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
the Goods are returned in as close a condition to that in which they were delivered as is possible.
Notwithstanding clauses 1 to 21.8 but subject to the CCA, the Seller shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
the Client failing to properly maintain or store any Goods;
the Client using the Goods for any purpose other than that for which they were designed;
the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
the Client failing to follow any instructions or guidelines provided by the Seller;
hardware has been deemed to be physically broken and/or tamped with by the Client;
removal of door handles by the Client after installation has been effected;
fair wear and tear, any accident, or act of God.
In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that the Seller has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 12.
The Seller may in its absolute discretion accept non-defective Goods for return, that the Seller is willing to accept, in which case the Seller may require the Client to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any freight costs.
Notwithstanding anything contained in this clause if the Seller is required by a law to accept a return then the Seller will only accept a return on the conditions imposed by that law.
Where the Seller has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Seller. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Seller.
The Client warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
The Client agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Seller has created for the Client.
Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes the Seller any money the Client shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s contract default fee, and bank dishonour fees).
Further to any other rights or remedies the Seller may have under this contract, if a Client has made payment to the Seller, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller under this clause 23 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to make a payment when it falls due;
the Client has exceeded any applicable credit limit provided by the Seller;
the Client 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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods to the Client. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller has exercised its rights under this clause.
The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Seller shall repay to the Client any money paid by the Client for the Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits). The Client further acknowledges that cancellation:
within forty-eight (48) hours of order placement may be subject to a cancellation fee; and
no cancellation of orders will be accepted after forty-eight (48) hours of the order being placed.
Cancellation of orders for Goods made to the Client’s specifications, custom made by the Seller manufacturer, or for non-stocklist items (including, but not limited to, real doors, parwood doors, hume doors or local and imported door products) will definitely not be accepted once production has commenced, a deposit is receipted or an order has been placed.
Privacy Act 1988
The Client agrees for the Seller to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Seller.
The Client agrees that the Seller may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
to assess an application by the Client; and/or
to notify other credit providers of a default by the Client; and/or
to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.
The Client agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other agreed purposes or required by):
the provision of Goods; and/or
analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
enabling the collection of amounts outstanding in relation to the Goods.
The Seller may give information about the Client to a CRB for the following purposes:
to obtain a consumer credit report;
allow the CRB to create or maintain a credit information file about the Client including credit history.
The information given to the CRB may include:
personal information as outlined in 1 above;
name of the credit provider and that the Seller is a current credit provider to the Client;
whether the credit provider is a licensee;
type of consumer credit;
details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Seller has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
information that, in the opinion of the Seller, the Client has committed a serious credit infringement;
advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Client shall have the right to request (by e-mail) from the Seller:
a copy of the information about the Client retained by the Seller and the right to request that the Seller correct any incorrect information; and
that the Seller does not disclose any personal information about the Client for the purpose of direct marketing.
The Seller will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
The Client can make a privacy complaint by contacting the Seller via e-mail. The Seller will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au.
Unpaid Seller’s Rights
Where the Client has left any item with the Seller for repair, modification, exchange or for the Seller to perform any other service in relation to the item and the Seller has not received or been tendered the whole of any monies owing to it by the Client, the Seller shall have, until all monies owing to the Seller are paid:
a lien on the item; and
the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
The lien of the Seller shall continue despite the commencement of proceedings, or judgment for any monies owing to the Seller having been obtained against the Client.
Building and Construction Industry Security of Payments Act 1999
At the Seller’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
Service of Notices
Any written notice given under this contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this contract;
by sending it by registered post to the address of the other party as stated in this contract;
if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
if sent by email to the other party’s last known email address.
Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which the Seller has its principal place of business, and are subject to the jurisdiction of the Parramatta Courts in that state.
Subject to clause 21, the Seller shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
The Seller may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s
The Client cannot licence or assign without the written approval of the Seller.
The Seller may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Seller’s sub-contractors without the authority of the Seller.
The Client agrees that the Seller may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Seller to provide Goods to the Client.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.