CONTACT US

Terms & Conditions

1 Definitions and Interpretation

1.1 Definitions

In these terms and conditions unless expressly stated otherwise:

“Applicant” means the Person as detailed on the Application for Credit (if any) that is submitted to the Seller by or on behalf of the Customer.

“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

“Assumptions” means anything detailed in clause 38 and includes the Standard Assumptions.

“BA” means the Building Act 1975 and any associated regulations.

“Customer” means:

(a)       the Person named in the relevant Estimate, Sales Order, Quotation or Tax Invoice; and/or

(b)       The Person named as Applicant on the applicable Application for Credit Account to which these Terms and Conditions apply.

“Customer’s Site” means the site detailed in the relevant Estimate, Quotation, Sales Order or Tax Invoice for the delivery or installation of any Product(s) being purchased by the Customer from the Seller.

“Business Day” means a weekday when trading banks are ordinarily open in Brisbane, Queensland, Australia and does not include the dates from 27 to 31 December inclusive.

“Consumer” means a person who acquires Products pursuant to a Consumer Contract as defined in section 23(3) of the Australian Consumer Law.

“Collection Date” means the later of the following:

  • The estimated date for installation stated in the Sales Order or any other later date notified to the Customer in writing (where the Product(s) are being installed by the Seller);
  • The estimated date of supply stated in the Sales Order or any other later date notified to the Customer in writing (if we are only providing the Product); and
  • The date that the Product is ready for delivery to the Buyer or collection by the Buyer (if the Sales Order is for supply of Product only) or ready for installation by the Seller (if the Sales Order is for Product and installation).

“Estimate” means any estimate provided by the Seller for any Product or Services in which these Terms and Conditions are deemed to be incorporated.

“Force Majeure” means an act of God, war, fire, strike, lockout, trade or industrial disputes, government interference, lack of production capacity or raw materials, transport delays, accidents, breakdown of plant or machinery, non-delivery or shortage of supplies, pandemic, disease or illness or any other cause beyond the control of a party but specifically excludes the lack of availability of funds or inability to make payments when due.

“General Security Deed” means the General Security Deed attached hereto which forms part of these Terms and Conditions.

“Guarantors” means the directors of the Customer (if the Customer is a company) as noted on the annexed Credit Application (if applicable).

“GST” means the goods and services tax as imposed by the GST Law together with any related interest, penalties, fines or other charge.

“GST Amount” means any payment (or the relevant part of that payment) multiplied by the rate of GST.

“GST Law” has the meaning given to that term in a new Tax System (Goods and Services Tax) Act 1999, or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under the Act.

“Health and Safety Laws” means all Health and Safety laws, regulations, codes and requirements of any kind.

“Infrastructure” means all infrastructure which are related to utility services such as NBN, Telstra, electrical, stormwater, sewer, water or any other services.

“Insolvency Event” means the occurrence of any of the following events in relation to a party:

  • the party becomes insolvent as defined in the Corporations Act, states that it is insolvent or presumed to be insolvent under an applicable Law;
  • the party is wound up by resolution or an order of a court or declared bankrupt;
  • the party becomes an insolvent under administration as defined in the Corporations Act;
  • the party becomes subject to one of the forms of external administration provided for in Chapter 5 of the Corporations Act;
  • the party enters into or becomes subject to:
  • any arrangement or composition with one or more of its creditors or any assignment for the benefit of one or more of its creditors; or
  • any re-organisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors; any application or order is made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken which is preparatory to or could result in any of (a), (b), (c) or (d) above;
  • the party is taken, under section 459F(1) of the Corporations Act, to have failed to comply with a statutory demand; or
  • the party suspends payment of its debts, ceases or threatens to cease to carry on all or a material part of its business;

“Installation” means the physical fixing of any Product(s) purchased by the Customer from the Seller at the Customer’s Site.

“Intellectual Property Rights” means all present and future rights conferred by statute, common law or equity in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, inventions and confidential information, and other results of intellectual activity in any field whether or not registrable, registered or patentable. These rights include rights in applications to register these rights and all renewals and extensions of these rights.

“Law” means:

  • legislation, regulations, by-laws, orders, awards, proclamations and statutory instruments imposed or enforced by any applicable government, agency or authority;
  • any written instrument which constitutes a requirement of an organisation which has jurisdiction in connection with the supply of the Products or Services; and
  • principles of common law and equity established by decisions of the

“Losses” means all losses, damages, liabilities, costs, charges, expenses, claims, actions, suits or proceedings.

“NCC” means the most current version of the National Construction Code incorporating the Building Code of Australia as published from time to time by the Australian Building Codes Board as applicable at the date of Quotation being provided to the Customer for installation of a Product by the Seller.

“Payment” means any amount payable pursuant to a Tax Invoice.

“Person” includes an individual, the estate of an individual, a body politic, a corporation, an association (incorporated or unincorporated) and a statutory or other authority.

“PPSA” means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it.

“Price” means the purchase price for the Product as provided for in the Tax Invoice total.

“Product” means any and all goods and or services provided to the Customer by the Seller.

“Prostar Group” means:

  • Protector Aluminium & Glass Pty Ltd A.C.N. 128 806 388; and/or
  • Protector Aluminium & Glass Limited NZ.C.N. 4045606; and/or
  • Protector Trade Pty Ltd A.C.N. 652 315 430; and/or
  • Prostar Management Pty Ltd A.C.N. 658 384 082; and /or
  • Safetech Hardware Australia Pty Ltd A.C.N. 616 025 855; and/or
  • Prostar Joinery Pty Ltd A.C.N. 629 598 161; and/or
  • Prostar Joinery Limited NZ.C.N. 8508107; and/or
  • Prostar Trade Pty Ltd A.C.N. 636 738 228; and/or
  • Abra AI Pty Ltd A.C.N. 681 198 292

“QDC” means the most current version of the Queensland Development Code as published from time to time by the Queensland Government, as applicable at the date of Quotation being provided to the Customer for installation of a Product by the Seller.

“Quotation” means any quote or estimate provided by the Seller for any Product or Services in which these Terms and Conditions are deemed to be incorporated.

“Related Corporation” has the meaning given to the term “related body corporate” in the Corporations Act.

“Sales Order” means the sales order issued by the Seller to the Customer in which these Terms and Conditions are deemed to be incorporated.

“Seller” in relation to any Estimate, Quotation, Sales Order or Tax Invoice means the entity within the Prostar Group noted on the Sales Order, Estimate and or Tax Invoice.

“Services” means all services provided to the Customer by the Seller, including without limitation any Installation.

“Small Business” means a Customer that acquires Goods pursuant to a Small Business Contract as defined in section 23(4) of the Australian Consumer Law.

“Standard Assumptions” means the assumptions contained in clause 10, 11, 12.6, 12.7(b) to (g), 12.8, 18.5, 18.6 and 37.

“Tax Invoice” has the meaning given to it by the GST Law and any Tax Invoice issued by the Seller to the Customer is deemed to have these Terms and Conditions incorporated.

“Taxable Supply” has the meaning given to it by GST Law.

1.2 Interpretation:

  • Any terms included in any Estimates, Quotations, Sales Orders and Tax Invoices that are inconsistent with this document shall prevail to the extent of the inconsistency.
  • Words importing the singular shall include the plural (and vice-versa).

2 Governing Terms and Conditions

The Customer acknowledges that the Seller does not make any representations or warranties regarding the Product or any matter which is or might be relevant to the Customer buying or selling the Product other than that which is expressly stated in this document, the Estimate, Quotation, Sales Order and Tax Invoice and any supplementary written agreement between the Customer and the Seller.

3 Terms of Payment

3.1 Unless the Seller grants credit to the Customer, and subject to the Seller’s right to withdraw credit, payment for all Products and Services purchased from the Seller must be made by the Customer in immediately available funds on or immediately prior to the product being manufactured and/or delivery of the Product or provision of the Services.

3.2 Where the Customer has an approved credit account with the Seller, payment to the Seller for the Product and Services must be made in accordance with the terms agreed to between the Seller and the Customer in writing (these terms will be offered to the Customer by the Seller for acceptance if Application for Credit is approved).

3.3 Failure of the Customer to make Payment in accordance with this clause 3 shall render the Payment immediately due and payable. Interest on overdue payments shall attract interest at the rate of 10% per annum calculated on a daily basis from the due date to the date it is paid. All payments made by the Customer will first be applied to the accrued interest.

3.4 The costs of collection of any moneys that are due and payable by the Customer, including any investigation fees, search fees, internal administration costs of the Seller, process server fees and the fees and commissions charged by any mercantile agent or lawyer engaged by the Seller shall be payable by the Customer on a full indemnity basis.

3.5 The Seller may re-evaluate payment terms, suspend performance of an order or terminate an order entirely if:

(a)       the Customer is subject to an Insolvency Event;

(b)       the Customer is in breach of any agreement with the Seller; or

(c)       in the Seller’s reasonable opinion, the credit of the Customer becomes impaired or there is a material adverse

change to the Customer’s financial position.

3.6 The Customer waives its right to set off any amount owed by it to the Seller against any amount of money owed, or that may become owing, to it by the Seller. Any discounts, rebates, credits and other payments due from the Seller to the Customer connection with the supply of Products and Services, or any other supply to the Customer by the Seller, may be paid by way of credit note against amounts owing by the Customer (if the Seller elects to do so).

3.7 Payments made by credit card may be subject to a surcharge, to the extent permitted by Law.

3.8 The Seller is entitled to make progress claims for any part of the Sales Order upon fulfillment of that part of the Sales Order by issuing a Tax Invoice for the value of the Product supplied and any associated costs (such as but not limited to product manufacturing, delivery, installation and variations). When making a progress claim, the Seller warrants that they have fulfilled that part of the Sales Order.

4 Inspection and Acceptance

The Customer agrees that it shall inspect the Product upon delivery. The Product shall be deemed to be accepted by the Customer if the Seller has not received written notice from the Customer within 3 business days of delivery of the Product that the Product is not in accordance with the Customer’s order.

5 Passing of Property and Risk

5.1 Risk in the Product shall pass to the Customer upon delivery of the Product to the Customer or collection of the Product by the Customer’s agent or courier as the case may be including where they are deemed to be delivered to the Customer or its nominee in accordance with clause 12.7 and 12.8. If the Seller arranges for delivery of the Product to the Customer, the Customer acknowledges and agrees that the Seller may arrange, at the Customer’s additional cost, appropriate insurance against the Product being damaged or lost in transit. The cost of such insurance may be added to the Price and payable in the same manner and on the same terms as those stipulated in clause 3. In all other circumstances it will be the Customer’s responsibility to arrange for its own insurance of the Products whilst in transit.

5.2 Property in the Product supplied by the Seller to the Customer shall not pass to the Customer until Payment has been made in full to the Seller, and the Customer must:

(a)       Store such of the Product which has not been paid for separately;

(b)       Keep separate records in relation to the proceeds of the sale of such of the Product which has not been paid for, bank the proceeds of any such sale into a separate account and immediately remit such funds to the credit of the Seller; and

(c)       if any of the Product is used in a manufacturing process or mixed with other materials, record the value of the Product so consumed in relation to each unit of finished product and upon sale of any unit of finished product immediately remit that amount from the proceeds of sale to the Seller.

5.3 If the Customer does not pay for any Product on the due date the Seller is hereby irrevocably authorised by the Customer to enter the Customer’s premises (or any premises under the control of the Customer or as agent of the Customer if the Product is stored at such premises) and use reasonable force to re-take possession of the Product without liability for the tort of trespass, negligence or payment of any compensation to the Customer whatsoever.

5.4 The Customer and Seller agree that the provisions of this clause apply notwithstanding any arrangement under which the Seller grants credit to the Customer.

5.5 The Customer must insure the Product for an amount that is at least the amount of the Sales Order and Tax Invoice for the Product for all usual risks from the date risk passes to the Customer.

6 Suspension or Termination of Credit Facility

The Seller may, at any time without notice, terminate or suspend the Customer’s right to purchase the Product upon credit and the Seller shall not be liable to the Customer for any loss or damage the Customer may sustain as a result of such refusal.

7 Default of Customer

7.1 If these terms and conditions are not strictly observed by the Customer, or the Customer is in default of any of its obligations under any other agreement between the Customer and the Seller (including any obligation to pay) (“Default Event”) the Seller may in its absolute discretion, notify the Customer of the default and immediately suspend supplying any Products and/or Services to the Customer until such time as the Customer has remedied that default.

7.2 If the Seller refuses to supply the Customer due to a Default Event, the Seller shall not be liable to the Customer for any loss or damage the Customer may sustain due to such refusal.

7.3 If a Default Event occurs, the Seller may terminate this or any other agreement for the supply of Products and Services to the Customer if the Customer does not remedy the relevant default within 10 Business Days of receipt of notice of the default.

7.4 If the Customer is in default of its obligations in relation to payment, or becomes subject to an Insolvency Event, the Seller may in addition to any other rights it may have under these Conditions or at Law:

(a)       suspend deliveries of further Products and provision of Services to the Customer whether under this contract or otherwise;

(b)       terminate any contract or agreement between the Seller and the Customer in relation to Products that have not been delivered or Services that have not been rendered;

(c)       withdraw any credit facilities which may have been extended to the Customer and require immediate payment of all moneys owed to the Seller by the Customer; and/or

(d)       issue a Tax Invoice for, and demand immediate payment for, Products and Services ordered by the Customer but not delivered or provided (as the case may be).

7.5 Where the Customer has an approved credit account with the Seller, the Customer as beneficial owner charges in favour of the Seller all of its interest in all of the present and future real property of the Customer as security for the due and punctual payment of all debts and monetary liabilities owed by the Customer to the Seller pursuant to a contract on or including the terms of these Conditions. The Customer consents to the Seller lodging a caveat on the title to any real property in which the Customer has an interest to note its interest. Upon demand by the Seller, the Customer agrees to immediately execute a mortgage on terms satisfactory to the Seller to more particularly describe the security interest conferred by this clause. Should the Customer fail within a reasonable time of such demand to execute such mortgage then the Customer irrevocably appoints the Seller as its attorney with authority to do on its behalf anything that it may lawfully authorise an attorney to do including, without limitation, to make, sign, execute, seal and deliver any document and to take possession of, use, sell or otherwise dispose of any real property of the Customer. All costs incurred by the Seller relating to any action taken by the Seller to recover monies due from the Customer (including, without limitation, legal or other debt collection costs) will be payable by the Customer on demand.

8 Returns

8.1 Returns will be accepted for faulty or defective Product or any other non-excludable obligations of the Seller set out in the Competition and Consumer Act 2010 (Cth), or similar State and Territory legislation.

8.2 Returns other than those referred to in (8.1) above, may be approved by the Seller in its absolute discretion. These authorised returns must be freight prepaid and will only be accepted if they are in a saleable condition. Notwithstanding the Seller’s approval of returns pursuant to this clause, the Seller reserves the right to charge a handling fee equal to 15% of the price of the returned Product. Product specifically purchased, manufactured, machined or cut to size or to the Customer’s specification or are provided exclusively by the Customer are not returnable unless they are of the kind referred to in (8.1) above.

9 Supply

The Seller reserves the right to suspend or discontinue the supply of Product to the Customer without being obliged to give any reason for its action.

10 Installation

The Seller’s Estimate, Quotation, Sales Order and Tax Invoice are made on a supply only basis, unless it specifically provides for installation. Installation and commissioning (if any) is at the expense of the Customer unless otherwise specified in writing by the Seller.

11 Descriptions

11.1 Photographs, drawing illustrations, weights, dimensions and any other particulars accompanying, associated with or given in an Estimate, Quotation, Sales Order, Tax Invoice or descriptive literature or a catalogue approximate the Product offered but may be subject to alteration without notice.

11.2 Any performance data provided by the Seller or a manufacturer is an estimate only and should be construed accordingly.

12 Shipment, Delivery and Installation

12.1 Any dates for delivery, shipment or installation contained in any Estimate, Quotation, Sales Order or Tax Invoice are estimates only and subject to change by the Seller. The Customer acknowledges that there are multiple factors which can delay delivery, shipment and installation which are outside the Seller’s control, including without limitation available installers, transportation, supplies, loading equipment failure, legislative changes and public health directions. Upon acceptance of any order by the Seller, the Seller will seek confirmation of the period of shipment or delivery. If any variation has occurred in the quoted period (which will delay delivery by more than 14 days) the Seller will notify the Customer and the period of shipment or delivery notified to the Customer will be the contractual period for shipment or delivery. The Seller can provide the Customer with multiple notifications of delivery delays. The Customer acknowledges and agrees that the period of shipment delivery or installation specified by the Seller in any Estimate, Quotation, Sales Order or Tax Invoice is an estimate only and may be varied unilaterally by the Seller by not more than 42 days. Maximum lengths for Products vary by State and Territory and delivery dates will be determined by the Seller on a case by case basis.

12.2 Delivery charges may apply to all deliveries and the Seller will advise the Customer of these once they are known. If the Customer does not accept the delivery charges, the Seller reserves the right to require the Customer to collect the Product(s) from the Seller at a location, time and date specified by the Seller, which will generally be the Collection Date.

12.3 Unless otherwise agreed in writing, if the Seller prepays freight, insurance, custom and import duties (if any), landing and delivery charges and all other charges in connection with shipment and delivery of the Product, then any such charges shall be paid by the Customer. The Seller reserves the right to nominate the means of delivery.

12.4 The Seller reserves the right to make part deliveries (instalments) of any order, and each part delivery shall constitute a separate sale of the Product upon these terms and conditions. A part delivery of an order shall not invalidate the balance of an order. Failure to deliver any one instalment by the time estimated for delivery of that instalment (if any) will not entitle the Customer to terminate the order.

12.5             The Seller shall not be responsible or liable for any costs, expenses, losses or damages for delay in the delivery, supply or installation of the Product.

12.6 The Customer shall be responsible or liable for any costs, expenses, losses or damages for deliveries in emptying and returning shipping containers or pallets used to deliver the Products to the Customer (including but not necessarily limited to container detention fees, redirecting fees and storage fees).

12.7 Unless otherwise agreed:

(a)       The Seller reserves the right to arrange transport by any means in its absolute discretion;

(b)       Delivery will be made during the usual business hours of the Seller to the location agreed by the parties (“Delivery Point”);

(c)       The Seller or its transport contractor will deliver the Product as close (“Drop Spot”) to the Delivery Point as, in the reasonable opinion of the Seller or its transport contractor, it is safe or prudent to do so and delivery is effected when the Seller’s or its transport contractor’s delivery vehicle arrives at the Drop Spot;

(d)       The Seller reserves the right to charge the Customer any reasonable costs which it incurs as a result of any delay by the Customer in unloading the Product or where unloading of the Product cannot be effected, including, if applicable, a reasonable return delivery fee (at prevailing freight rates provided the Seller will use reasonable endeavours to try to minimise this cost);

(e)       The unloading of Product is the Customer’s responsibility at its own cost and risk but the Seller or its transport contractor may, without liability to the Seller, unload the Product if the Customer requests the Seller to do so or is absent from the Drop Spot at the time the Seller or its transport contractor wishes to unload and the Customer releases and forever discharges the Seller and its transport contractor from and against any claim, cause of action or liability arising out of the unloading of Product at the Drop Spot;

(f)        Where the Customer attends the Seller’s premises to acquire the Product, the Seller may, in its absolute discretion and at the Customer’s sole risk:

(i)         deliver the Products into or onto the Customer’s vehicle in which case delivery is effected when the Products are set down in or on the Customer’s vehicle; or

(ii)        deliver the Products by setting them down alongside the Customer’s vehicle in which case delivery is effected when the Products are set down alongside the Customer’s vehicle notwithstanding that the Seller’s staff may, on request, assist the Customer to load the Product into or onto the Customer’s vehicle.

(g)       Where clause 12.7(f) applies, the Customer acknowledges that:

(i)         The Customer is solely responsible for securing the Product to the Customer’s vehicle and that the Seller is unable to assist with such process;

(ii)        The Customer is solely responsible for ensuring that the Product can be safely carried by the Customer’s vehicle and that the Customer is complying with all legal requirements in relation to the carriage;

(iii)       The Seller is not providing any warranty or representation that it believes the Product can be safely or legally carried by the Customer’s vehicle;

(iv)       The Customer must strictly comply with the directions given to the Customer by the Seller’s employees;

(v)        The Customer must ensure it acts in a manner that assures the safety of all persons and property near the Customer and the Customer’s vehicle;

(vi)       The Customer’s entrance onto the property where the Seller’s business is conducted is at the sole risk of the Customer and the Seller is not liable for any damage or injury to the Customer, any persons accompanying the Customer or any property the Customer brings onto the property (including any vehicle or equipment); and

(vii)      The Customer indemnifies the Seller in respect of all loss, claims, costs, expenses, damage or injury suffered or incurred by the Seller arising directly or indirectly from the Customer’s entrance onto the property or any failure to comply with any direction or order of the Seller or Seller’s employees.

12.8 The Customer acknowledges that storage costs incurred by the Seller for completed Products are significant and that the Seller has not allowed for any storage beyond the Collection Date in any Estimate, Quotation, Sales Order or Tax Invoice. Products ordered for collection will be held for a maximum period of 15 days after the specific Collection Date. The Seller is entitled to charge a storage fee equal to 3% of the value of the Products being stored per day, with such fees to apply from the Collection Date. If the Products are not collected by the Collection Date, they may be at the Seller’s option either delivered to the Customer’s Site at the Customer’s cost, or to a storage facility selected by the Seller and all reasonable costs incurred by the Seller in relation to the holding and delivery of the Products under this clause will be charged to and be paid by the Customer. After 15 days from the Collection Date, the Seller is entitled to scrap the Product. The Customer agrees that this is an acceptable outcome as the Product(s) are custom made, expensive to store and are not capable of being sold to another party.  Notwithstanding any scrapping of Products, the Customer will still be liable for payment of the entire Sales Order and Tax Invoice, as well as any costs incurred by the Seller under this clause and any storage fees chargeable pursuant to this clause.

12.9 Times quoted for delivery are estimates only and are subject to variation by the Seller in their sole discretion, as they are dependent on a number of variables such as but not limited to prevailing road conditions, weather, availability of delivery drivers and events outside the control of the Seller.

12.10 Where the Seller or its transport contractor enters the premises of the Customer or a third party to effect delivery of a Product, the Customer:

(a)       releases the Seller from any claim the Customer may at any time have had against the Seller but for this release in respect of damage occasioned to the Customer’s premises or injury to persons arising out of the delivery by the Seller or its transport contractor of Products to such premises; and

(b)       indemnifies and holds the Seller harmless from and against any Losses suffered or incurred by the Seller in respect of damage occasioned to the Customer’s or third party’s premises or injury to persons arising out of the delivery by the Seller or its transport contractor of Product to such premises, except for and to the extent that such Losses arise out of the negligence or wilful misconduct of the Seller or its transport contractor.

12.11 No defect or claim in respect of Products delivered will entitle the Customer to reject the delivery of other Products which are not subject to any defect or claim even if they are delivered as part of the same order.

13 Specification, Materials, Special Orders and Variation

13.1 Where the Seller is acting as agent for a manufacturer or supplier, the Seller shall not be liable for any alteration or variation in the Product made by the manufacturer or the supplier.

13.2 All descriptions, specifications, illustrations, drawings, data, dimensions and weights contained in catalogues, price lists or other advertising matter of the Seller or elsewhere are approximations only. They are intended by the Seller to be a general description for information and identification purposes and do not create a sale by description.

13.3 Unless otherwise stated on an Estimate, Quotation, Sales Order or Tax Invoice, Products will be supplied by the Seller within the tolerances in regard to quantity, weight, dimension and chemical composition as specified in the relevant order or, if not specified, as consistent with usual industry practice.

13.4 If the Seller processes the Customer’s goods or materials, then the Seller does not give any warranty or assurance that materials supplied by the Customer are suitable for such processing. The Seller accepts no responsibility and will not in any way be liable to the Customer for any damage done or caused to such materials or goods, except where the Customer is a Consumer or Small Business and such loss or damage arises from the negligence or wilful misconduct of the Seller or any of its officers, employees or agents.

13.5 The Customer agrees that it does not rely on the skill or judgement of the Seller in relation to the suitability of any of the Products for a particular purpose.

13.6 If any variations occur, the Seller is entitled to invoice the Customer for the amount of the variations at its discretion at either the completion of the relevant stage where the costs for the variation have been incurred or fulfillment of the entire Sales Order.

14 Currency

Where the Product is imported into or exported from Australia, any adverse variation in the price arising from fluctuation in exchange rates between the date of the Customer’s order and the date of payment by the Seller will be at the Customer’s expense.

15 Contingent Expenses

Any charge, duty, impost, sales tax or other expenditure which is not applicable at the date of any Estimates, Quotations, Sales Orders and Tax Invoices but which is subsequently levied upon a Seller in relation to an Estimate, Quotation, Sales Order and Tax Invoice as a result of the introduction of any legislation, regulation or government policy, shall be at the Customer’s expense.

16 Force Majeure

16.1 If by reason of any fact, circumstance, matter or thing beyond the reasonable control of the Seller or the Customer either is unable to perform in whole or in part any obligation under this agreement such party shall be relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and shall not be liable to the other party to this agreement in respect of such inability.

16.2 If the Seller is prevented either directly or indirectly from performing any of its obligations under these Terms and Conditions, including without limitation, making a delivery of the Products or any part of the Products, by reason of Force Majeure it will be entitled, at its option, by notice to the Customer, either to:

(a)       extend the time for performance of its obligation for a reasonable period;

(b)       terminate the contract in relation to Goods that have not been delivered, provided that it refunds to the Customer any payment already made to the Seller in respect of those particular Products (if any), and the Customer will not have any claim against the Seller for damages or any other remedy for breach of contract.

17 Customer’s Cancellation

Unless otherwise agreed in writing, the Customer shall have no right to cancel an order which has been accepted by the Seller. If a right of cancellation is expressly reserved to the Customer in writing in the Sales Order, such right of cancellation must be exercised by notice in writing from the Customer to the Seller not later than 28 days prior to the estimated date of shipment by the Seller. Unless otherwise agreed between the Customer and the Seller, any cancellation by the Customer prior to shipment (if accepted by the Seller) shall immediately render any deposit paid by the Customer to be forfeited to the Seller and the Customer is liable to pay the Seller an amount equal to the greater of the value of the works completed by the Seller up to the date of cancellation or 50% of the invoice value of the order cancelled (less any deposit forfeited).

18 Liability

18.1 The Seller will not be liable for any claims or damages arising out of or in respect to the supply and or manufacture of the Product including, but not limited to, claims for faulty design, negligent or misleading advice, damages arising from loss or use of the Product, and any direct, special or consequential damages or injury to any person, corporation or other entity.

18.2 The Seller makes no express warranties under this Agreement except that to the extent that the Product supplied is covered by the manufacturer’s warranty, the Seller will pass onto the Customer the benefit of the manufacturer’s warranty.

18.3 Upon discovery of any defect in the Product supplied by the Seller, the Customer shall immediately notify the Seller in writing. The Customer shall not carry out any remedial work to allegedly defective Product without first obtaining the written consent of the Seller to do so.

18.4 The Seller excludes all conditions, warranties, undertaking, representation and terms, whether expressed or implied by law or otherwise in respect of the Product which may apart from this clause be binding upon the Seller, except any implied conditions and warranties the exclusion of which would contravene any statute or cause this clause to be void.

18.5 The Customer expressly acknowledges and agrees that it has not relied upon, any advice, statement, representation or technical information given by the Seller, its agents, employees or sub-contractors in relation to the design, installation, use and suitability for any purpose of the Product supplied by the Seller. The Customer agrees that all such information and/or advice is accepted by the Customer entirely at the Customer’s risk.

18.6 If the Customer (or a third party directed by the Customer) provides to the Seller any plans, designs or specifications in relation to a Product that the Customer requires the Seller to fabricate, manufacture and/or supply to the Customer, whether directly by the Seller or through any third party, the Customer unconditionally and irrevocably indemnifies the Seller from and against any and all liability, claims, damages, losses and/or reasonable costs (including but not limited to any demands, actions, proceedings and/or claims brought against the Seller by a third party alleging infringement of intellectual property rights owned or controlled by the third party in respect of the Product or such plans, designs or specifications provided by the Customer).

18.7 Except as otherwise expressly specified in the terms of any applicable written warranty provided by the Seller, the Seller’s liability to the Customer (whether arising under statute, contract, tort (including negligence), equity or otherwise) for any defect in the Products, or the supply of the Products, is limited (to the full extent permitted by Law), at the Seller’s option, to:

(a)       in the case of Products, the repair of the Products, the replacement of the Products or paying for the cost of repair or replacement of the Products; or

(b)       in the case of Services, the resupply of Services or paying for the cost of resupplying the Services.

18.8 The Seller is not liable to the Customer or anyone else in connection with the Products or the supply of the Products, or with these Conditions (including any changes to these Conditions), for any Losses:

(a)       arising from any act or omission on the part of the Customer or any of its officers, employees, agents or contractors;

(b)       Including without limitation for damage to the Products or any other property, or injury to any person arising from:

(i)         the loading, unloading or delivery of the Products;

(ii)        any delay in delivering the Products;

(iii)       the delivery or removal of defective Products or the installation of replacement Products; or

(iv)       the use of any tool or equipment loaned or hired out by the Seller;

(c)       in relation to any claim, action or proceeding by a third party against the Customer (or any Losses incurred or suffered by the Customer as a result of any such claim, action or proceeding); or

(d)       in relation to the fitness or suitability of the Product for the Customer’s purpose (including a third party purpose) unless such purposes are known and expressly confirmed in writing by the Seller at the time the order for the Product is accepted.

18.9 The Customer indemnifies and will keep indemnified the Seller and each of its officers, employees and agents (for each of whom the Seller holds the benefit of this indemnity upon trust) from and against all Losses arising out of or relating to:

(a)       any loss or damage caused by or during the processing of materials supplied to the Seller by the Customer;

(b)       any loss or damage caused by any tool or equipment, or the use of any tool or equipment, loaned or hired out by the Seller to the Customer;

(c)       the negligence, wrongful act or omission, breach of statutory duty, breach of contract or wilful misconduct of the Customer or its officers, employees, agents or contractors;

(d)       any injury to or death of any person or any damage to or loss of property connected with the conduct, operations or performance of the business of the Customer; or

(e)       misuse of the Products or incorrect installation of Products by the Customer.

18.10         To the extent permitted by Law, but notwithstanding anything else contained in these Terms and Conditions:

(a)       the maximum liability of the Seller to the Customer whether under contract, at Law, in equity or otherwise for all Losses in connection with these Terms and Conditions and the subject matter of these Terms and Conditions (including the Products and Services) is an amount equal to the price paid for the Products and Services under the order to which the Losses relate;

(b)       the Seller will not be liable to the Customer in relation to business interruption, loss of revenue, loss of income, loss of production, loss of use, loss of product, loss of business, loss of profits, loss of opportunity, loss of contracts, loss of investment, damage to goodwill or damage to business reputation or loss of actual or anticipated savings, however arising; and any indirect or consequential loss that cannot reasonably be considered to arise naturally from the facts, matters or circumstances which give rise to a claim.

19 Alteration to Conditions

The Seller may, at any time and from time to time, alter these Terms and Conditions.

20 GST

20.1 The parties agree that:

(a)       the Price is inclusive of GST;

(b)       all other Payments have been calculated without regard to GST.

(c)       each party will comply with its obligations under the Australian Consumer Law and GST Law when calculating the amount of any Payment and the amount of any relevant Payments will be adjusted accordingly;

(d)       if the whole or any part of any Payment is the consideration for a Taxable Supply (other than for payment of the Price) for which the payee is liable to GST, the payer must pay to the payee an additional amount equal to the GST Amount, either concurrently with that Payment or as otherwise agreed in writing.

(e)       any reference to a cost or expense in this Agreement excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party can claim an Input Tax Credit, and the payee will provide to the payer a Tax Invoice.

21 Charge in Land

21.1 By executing this Credit Application the Customer and if the Customer is a company, each of the Directors of the Customer (“the Directors”), hereby create an interest in land and charge in favour of the Seller in respect of all real estate, land and buildings owned by the Customer and/or the Directors of the Customer.

21.2 To better secure the interest in land and charge given by clause 21.1 the Customer and the Directors hereby consent to the Seller lodging and registering a caveat on the titles of each and any piece or parcel of land owned by the Customer and each and any piece or parcel of land owned by the Directors or any of them.

22 Power of Attorney

The Applicant and the Directors warrant and agree that they will when called upon by the Customer to so do, expeditiously sign any consent or other document required by Titles Queensland (or its replacement controlling the registration of caveats) to cause or permit the registration of any such caveat. If the Applicant or any Director refuses or neglects to execute such consent or other document, the Applicant and each of the directors hereby duly appoint the Seller as their lawful attorney to execute such consent or other document on its/their behalf. The Applicant and the Directors indemnify and hold harmless the Seller for the cost of preparing and registering such caveat.

23 Personal Guarantee

23.1 In consideration for the Seller providing the Product and/or Services to the Customer, the Guarantors (and if more than one then jointly and severally) hereby guarantees to the Seller the obligations of the Customer pursuant to these Terms and conditions, particularly, but not necessarily limited to, the payment of any and all monies by the Customer to the Seller. The Guarantor acknowledges the receipt of valuable consideration from the Seller for the Guarantor incurring the obligations under this Guarantee.

23.2 The Guarantor specifically acknowledges that the Guarantee under this clause 23 are continuing and applies to every Estimate, Quotation, Sales Order and Tax Invoice issued by the Seller to the Customer (including without limitation any updated Terms and Conditions accompanying such Estimate, Quotation, Sales Order and Tax Invoice), until the Seller agrees to release this Guarantee in writing.

23.3 The Guarantor acknowledges that the Seller can register a general security charge over the Guarantor under the PPSA in order to secure the obligations of the Customer under these Terms and Conditions.

23.4 The Guarantor indemnifies the Seller against any loss or damage (including costs, charges and expenses) they may suffer as a result of the Customer failing to fulfill its obligations under any Estimate, Quotation, Sales Order or Tax Invoice, including the obligation to pay any amount of money to the Seller.

23.5 The Guarantors’ obligation and the rights of the Seller under this clause 23 are not affected by anything that might otherwise affect them at law or in equity, including without limitation:

(a)       The Granting of time or any indulgence;

(b)       Compounding, compromising or releasing;

(c)       Acquiescence, delay, acts, omissions or mistakes;

(d)       Variation, assignment or novation of a right or any agreement between the parties;

(e)       The invalidity or unenforceability of any obligation or liability;

(f)        The unenforceability of this guarantee against one or more of the Guarantors.

23.6 The Guarantor/s acknowledge that:

(a)       The Seller is not obliged to commence proceedings against the Customer or any person before claiming under this Guarantee;

  • They have read and understood the Terms and Conditions and had the opportunity to obtain independent legal and financial advice;
  • The Seller may assign its rights under this Guarantee;
  • They may not raise any set off or counter-claim in reduction of their liability under this

23.7 The Guarantor/s must pay or reimburse to the Seller (as a first charge) for all expenses including legal costs on an indemnity basis incurred in enforcing this Guarantee; and all duties, fees, taxes and charges payable in relation to this Guarantee; or any payment, receipt or other transaction related to it.

23.8 Until the Seller has received all money payable to it by the Customer or a Guarantor, the Guarantor/s must not prove or claim in any liquidation, bankruptcy, composition arrangement or assignment for the benefit of creditors of the Customer and must hold any claim and any dividend received on trust for the Seller.

24 Governing Law

These terms and conditions and any contract including them shall be governed by and construed in accordance with the laws of the State of Queensland and the Seller and Customer submit to the non-exclusive jurisdiction of the Courts of Queensland, Australia.

25 Terms and Conditions to Continue to Apply

The terms of this Agreement are continuing and apply to all subsequent sales by the Seller to the Customer.

26 PPSA

26.1 The Customer and Guarantor acknowledges that the Seller has a security interest (for the purposes of the PPSA) in the Product and any proceeds from the on-sale thereof until the title in and to the Product passes to the Customer in accordance with clause 5.2. This security interest secures all moneys owing by the Customer to the Seller (including the Price of the Product) under any contract or otherwise (“the Amounts Owing”);

26.2 The Customer acknowledges that each security interest over Product (or their proceeds) arising under this clause 26 is a purchase money security interest to the extent that it secures payment of the Amounts Owing in relation to that particular Product;

26.3 The Customer must not assign or grant a security interest in respect of any accounts owed to it in relation to the Product without the Seller’s prior written consent. The Seller has a security interest in all such accounts to secure the Amounts Owing;

26.4 The Customer and Guarantor consents to the Seller effecting a registration on the PPSA Register (in any manner the Seller considers appropriate) in relation to any security interest contemplated by these Conditions of Sale and the Customer and Guarantor agrees to provide all assistance reasonably required to facilitate this;

26.5 The security interests arising under this clause 26 attach to the Product when the Customer obtains possession of the Product and the Customer and the Seller confirm that they have not agreed that any security interests arising under this clause 26 attach at any later time.

26.6 In addition to any rights the Seller may have under Chapter 4 of the PPSA the Seller shall be entitled at any time until the title in and to the Product passes to the Customer in accordance with clause 5.2:

(a) to demand the return of the Product, upon which the Customer must immediately return to the Seller that Product;

(b) to the extent permitted by law, to enter (or have its representative enter) any premises occupied by the Customer in order to search for and remove the Product without notice to the Customer and without liability to the Customer (including liability in relation to negligence). The Customer and its representatives shall provide all reasonable assistance to the Seller and its representatives for this purpose; and

(c) to retain, sell or otherwise dispose of that Product on any terms and in any manner it sees fit and, subject to section 140 of the PPSA, may apply the proceeds to repay any debt owed to it by the Customer;

26.7 If there is any inconsistency between the rights of the Seller under clause 26 and its rights under Chapter 4 of the PPSA, clause 26 prevails to the extent permitted by law;

26.8 The Customer and Guarantor indemnifies the Seller against any claim (including negligence) in respect of any damage to the property of, or the premises occupied by, the Customer or any consequential loss or pure economic loss caused by another party when searching for and removing the Goods in accordance with clause 26.6.

26.9 The Customer and Guarantor acknowledges that in addition to the foregoing, that the Customer and Guarantor agrees to the terms contained in the General Security Deed provided to the Customer and Guarantor with the Application for Credit which is between the Customer and Guarantor as Grantor and the Seller as Secured Party (“PPSA Deed”). The Customer and Guarantor acknowledge that the PPSA Deed forms part of these Terms and Conditions. In executing the Application and the PPSA Deed and accepting these Terms and Conditions, the Customer and Guarantor acknowledge that the General Security Deed applies to each and every single Estimate, Quotation, Sales Order and Tax Invoice issued by the Seller to the Customer and that the Seller has a right to register a Security Interest over both the Customer and Guarantor which can remain registered until all monies owing to the Seller pursuant to any Sales Order and Tax Invoice issued to the Customer are paid in full and the credit account provided by the Seller to the Customer is finalised and closed.

27 Confidentiality

27.1 Each party (receiving party) must keep all confidential and proprietary information provided or disclosed by the other party (disclosing party) confidential and must not disclose it to any person except:

(a) after it becomes known to the public at large (other than as a consequence of any breach of these Conditions);

(b) to officers, employees, contractors, agents and advisers of the receiving party or its Related Corporations;

(c) after it has been received from a third person entitled to possess such information and provide it to the receiving party;

(d) to the extent necessary to comply with any applicable Law, legally binding order of any court or other appropriate body or the rules of any applicable securities exchange; or

  • disclosure of information relating to the receivables and related securities associated with these Conditions or any contract formed under them to a purchaser or financier of such receivables.

27.2 The receiving party shall procure that any of its or its Related Corporations’ officers, employees, contractors, agents and advisers who receive such confidential and proprietary information keep it confidential consistent with the obligations in these Conditions.

27.3 For the purposes of these Terms and Conditions, confidential and proprietary information includes information relating to the Product(s), the business affairs or method of carrying on business of the disclosing party or details of any pricing or supply arrangement between the Customer and Seller.

28 Intellectual Property

28.1 The Seller retains the Intellectual Property Rights in any Products, promotional literature, technical documents or other information provided by the Seller to the Customer under these Conditions.

28.2 The Customer must:

(a) where practicable, indicate prominently in written form that the Intellectual Property Rights are owned by the Seller and that the Customer is a user of the Intellectual Property Rights;

(b) only use the Intellectual Property Rights in relation to the Products or as otherwise approved by the Seller in writing;

(c) not use the Intellectual Property Rights in any way which would lead the trademarks to become generic, lose distinctiveness or become liable to mislead the public or in any way which would be materially detrimental to or inconsistent with the name, reputation and/or image of the Seller;

28.3 If the Customer is in breach of any of these Conditions, including clause 28.2, if requested by the Seller in writing, the Customer will promptly cease to use any Intellectual Property Right and deliver or (at the Seller’s request) destroy any materials in whatever form including all marketing and advertising materials, logos, labels and any reproductions of the Seller’s brands that are in the possession or control of the Customer that carries an Intellectual Property Right.

28.4 The Customer must procure that its employees, contractors and agents comply with the provisions of clauses 28.2 and 28.3.

28.5 All goodwill in any Intellectual Property Right generated through the use of such right by the Customer is for the benefit of the Seller.

29 Relationship

Nothing contained in these Terms and Conditions will constitute the Seller as a subcontractor of the Customer.

30 Severability

Each provision of these Terms and Conditions shall be deemed to be separate and severable from the others. If any provision of these Terms and Conditions is determined to be invalid, void, unenforceable or otherwise ineffective by operation of law in any jurisdiction, that provision will be considered to be severed from these Terms and Conditions. Such determination and the consequential severance (if any) shall not affect the validity, enforceability or effectiveness of the rest of these Terms and Conditions which shall remain in full force and effect as if such provision had not been made a part thereof, nor shall it affect the validity or enforceability of such provision in any other jurisdiction.

31 Waiver

A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver. A waiver or consent is only effective in the specific instance and for the purpose for which it is given.

32 Business Day

Where, by virtue of the provisions of these Terms and Conditions, the day on or by which any act, matter or thing is to be done is not a business day in the place in which the act, matter or thing is to be done, it may be done on the first business day after that day.

33 Assignment

These Terms and Conditions are binding on, and operate for the benefit of, the parties and their respective administrators, successors and assigns, except that the Customer must not assign these Terms and Conditions or any of its rights or obligations under these Terms and Conditions without the Seller’s prior written consent. Nothing in these Terms and Conditions restricts the Seller from assigning, declaring a trust over, transferring or otherwise dealing with any receivable owed to it by the Customer under these Terms and Conditions, together with any associated rights and interested (including any related security) in favour of any third party. With notice to the Customer, the Seller may assign the Contract which these Terms and Conditions form part of to any of its Related Corporations, or in the case of a sale of business, to any third party which acquires all or substantially all of the assets of the Seller which are used in the performance of the obligations arising under these Terms and Conditions

34 Non Merger

None of the terms or conditions of these Terms and Conditions, nor any act, matter or thing done under or by virtue of, or in connection with, these Terms and Conditions will operate as a merger of any of the rights and remedies of the parties in or under these Terms and Conditions or otherwise. All such rights and remedies of the parties as applicable will continue in full force and effect.

35 Time

Time is of the essence of these Terms and Conditions except for any agreement outside these Terms and Conditions between the parties as to time of day for any obligations of a party contemplated by these Terms and Conditions.

36 Work On Site

36.1 If the Estimate, Quotation, Sales Order or Tax Invoice from the Seller includes any Services being completed at the site of installation to give effect to the installation of the Product, the Customer will ensure that, at no cost to the Seller:

(a) the site is clear, free of water, clean, safe, has uninterrupted direct access for employees and sub-contractors of the Seller, its material and plant and equipment and sufficient space for scaffolding necessary for the performance of the Contract to which these Terms and Conditions form part of, and suitable vehicle off-loading is possible within five metres of the applicable site;

(b) ensure adequate facilities and assistance (as are reasonably required by the Seller) are provided to enable the Seller to efficiently, comfortably and safely perform the Services;

(c) prior to the commencement of the Services that all necessary licences, consents and approvals including local council permits and engineering certifications required for the performance of the Services have been obtained; and

(d) the structures to which the Seller is to install the Works comply with the Seller’s specifications set out or attached to the Estimate, Quotation, Sales Order or Tax Invoice, all Australian Standards, the NCC, QDC, BA, and any requirements stipulated by Council, engineering and any applicable authority.

36.2 The Seller will not be responsible for the removal of broken or damaged materials or any debris on the site remaining from the Services provided by the Seller.

36.3 The Services for installation of Product are deemed to be complete when the Services are, in the reasonable opinion of the Seller completed so that the installed Product is fit for the purpose for which they were intended as reasonably determined by the Seller.

36.4 The times or dates quoted for commencement, installation and completion of the Services will be estimated as accurately as possible but are not guaranteed nor is time of the essence. The Seller is not liable for loss, including consequential loss, loss of profits and liquidated damages which may be incurred by the Customer as a result of the Seller failing to satisfy any of these dates.

36.5 If the estimated completion of the Services for installation of the Product is delayed by circumstances or events beyond the control of the Seller including, but not limited to, delays by the Seller’s suppliers or subcontractors, delays directly or indirectly caused by the Customer, delay in giving the Seller access to the site of installation in a condition that complies with clause 36.1 of these Terms and Conditions or industrial disputes, and irrespective of any other concurrent cause of delay for which the Seller may be responsible:

(a) the estimated completion date will automatically be extended by a reasonable period as determined by the Seller; or

(b) the Seller may terminate the Contract without any liability for breach of the Contract and the Seller will be entitled to full payment for all Services completed and Product supplied.

36.6 If the Customer causes the Seller any delay, the Customer will indemnify the Seller for the liquidated damages amount specified in the Quotation, but if such amount is not specified then for all expenses incurred and losses suffered including consequential loss and loss of profit by the Seller as a consequence of any delay caused or contributed to by the Customer.

36.7 The Seller may sub-contract its obligations under the Contract which is subject to these Terms and Conditions. The Customer acknowledges that no sub-contractor has authority to agree to any variation of the Services or the supply of Product on behalf of the Seller.

36.8 The Seller reserves the right to change the construction or design of any Products to be supplied under the Contract (including how they are installed), if in its judgment it does not significantly affect the performance characteristics of those Products.

36.9 The Customer must at its sole cost advise the Seller of the existence of all Infrastructure at or near the site of installation of the Product, including providing detailed plans of same and having them clearly identified on site with appropriate markers. If any Infrastructure is damaged by the Seller whilst the Seller is conducting any Services at the site of installation of the Product which require repairs, the Customer will be responsible for rectifying same immediately. If the Customer does not rectify same within 2 business days, the Seller can attend to same so that they can finalise the supply of the Services and the Customer must pay the costs associated with the repair conducted by the Seller within seven (7) days of the Seller providing the Customer with an invoice for same. The Customer agrees any such invoice issued pursuant to this clause is deemed to form part of the Quotation, Sales Order and Tax Invoice ab initio, and that the Title to the Product pursuant to the Tax Invoice will not pass until such time as the invoice issued under this clause is also paid.

36.10 For the purposes of clarity, where the Seller installs a Product on site, the Product is deemed to be at the risk of the Customer from the moment it has been delivered on site. The Customer must appropriately insure the Product for the full value of the Sales Order and Tax Invoice, including any Services provided by the Customer for all usual risks, including without limitation public liability of not less than $20million per occurrence.

37 Assumptions

37.1 The Customer acknowledges and agrees that when providing a Quotation, Estimate, Sales Order and Tax Invoice the Seller will be making the following assumptions:

(a) The Standard Assumptions;

(b) All drawings, plans, engineering or technical information provided by the Customer is accurate and in compliance with the NCC, QDC, BA, all Australian Standards and industry best practice;

(c) Any delivery of the Product will be a single delivery unless otherwise specified in the Estimate, Quotation, Sales Order or Tax Invoice;

(d) There will be sufficient room for the Product to be delivered safely to the Delivery Point as defined in clause 12.7(b) ;

(e) The Delivery Point will be level, clear of any obstructions, sufficient in size and located on private property;

(f) If the Seller is supplying the Product only (and not attending to installation of the Product) that the Customer warrants the following:

(i) The structures to which the Product is being installed are sufficiently engineered to sustain the Product for its intended purpose;

(ii) The Product will only be used for its intended purpose;

(iii) The Customer has provided accurate instructions and designs to the Seller which complies with the NCC, QDC, BA, all Australian standards and all legislative, engineering, regulatory and best practice requirements;

(iv) The Customer will not hold the Seller responsible or liable in relation to the suitability or otherwise of the Product for the Customer’s intended use;

(v) The Customer does not require the Seller to review the design and instructions provided by the Seller and the Seller is only required to produce the Product(s) as per the manufacturing (CAD) drawings provided by the Seller to the Customer;

(vi) That it understands any drawing supplied by the Seller are provided merely to ensure that the Seller has finalised the design as per the Customer’s requirements; and

(vii) That on acceptance of any CAD drawings supplied by the Seller, the Customer confirms the accuracy of the drawings and that they comply with the Customer’s requirements

(g) if there is any installation being provided by the Seller that:

(h) The Customer will supply at its sole cost and risk all applicable safety equipment as required by all Health and Safety Laws, including without limitation, cranes, scaffolding, scissor lifts and forklifts, which complies with all regulatory requirements and best industry practice which is sufficient for the installation of the Product will be onsite (as applicable);

 

  • Reticulated Water and power with adequate access will be connected to the Premises and available for use;
  • All relevant Workplace Health and Safety measures complying with all legislative and regulatory requirements and industry best practice are installed / existing on site and will remain so for the duration that the Seller (or its subcontractors) are onsite;
  • There is clear all weather access and egress to the site and the specific location where the Product is being installed with sufficient clearance for all required safety equipment (including any handling equipment such as forklifts, cranes, etc);
  • All works supplied by the Seller or Products being installed by the Seller are being installed to existing structures which the Customer warrants are fully compliant with the NCC, QDC, BA, all applicable Australian Standards, applicable codes of practice and all regulatory requirements;
  • The Customer warrants that all existing structures which are being used as anchoring points for any Product installed by the Seller are sufficiently engineered to sustain the Product for its intended purpose;
  • The Site and all structures which impact on the installation will be ready by the programmed date for any on site works; and
  • There will be no conflicting trades on site on the dates that the Seller is programmed to be on site completing any Services

38 Additional Costs where Assumptions are not accurate

38.1 The Customer acknowledges and agrees that where any additional costs are incurred by the Seller or their subcontractors due to any Assumptions not being accurate will be payable by the Customer in addition to any amount contained on any Estimates, Quotations, Sales Orders and Tax Invoices.

38.2 The Customer acknowledges that upon the Seller becoming aware of any inaccuracy of any Assumption, that:

(a) the Seller will be entitled to issue a variation to any Estimates, Quotations, Sales Orders and Tax Invoices for the Product(s) or Service(s) as applicable by issuing further Estimates, Quotations, Sales Orders and Tax Invoices as required at the prevailing rates for the additional work or expense incurred by the Seller in order for the Seller to modify the Product or to attend to the Services; and

(b) the Customer will be required to pay the amount of the variation at the later of either the same time as the Tax Invoice, or within 7 days of the further Tax Invoice(s) being issued to the Customer; and

(c) should the Customer not accept the variation raised in accordance with this clause 38.2, the Seller reserves the rights to charge for all Services and Product supplied to date and cancel any remaining part of a Sales Order.

38.3 The Customer acknowledges that should any Assumption not be accurate, that any attendances on site by the Seller or its employees, subcontractor or agents which are terminated due to any Assumptions not being correct will result in a minimum charge at the prevailing rates for the specific persons which attended on site which will be the lesser of the time scheduled on site or a full days charge.

39 Technical Information, Plans, Dimensions, Engineering and Drawings Supplied by Customer

The Customer acknowledges and agrees that if the Customer supplies any information to the Seller, such as but not limited to Technical Information, Plans, Dimensions, Engineering and Drawings that the Seller will be solely relying on the supplied information when providing any drawings and making a Product. The Seller will only be liable to produce the Product as per the Customer supplied information on acceptance of the applicable Drawing and Quotation.

40 Disputes

40.1 If a dispute arises out of or relates to these Terms and Conditions, a party may not commence any Court or arbitration proceedings (except urgent interlocutory relief) under an agreement subject to these Terms and Conditions unless it has first complied with this clause.

40.2 A party claiming that a dispute has arisen must notify the other party of the dispute and provide full and clear details of the dispute and the outcome they are seeking.

40.3 During the 30-day period after a notice is given under clause 40.2 above (or any such longer period agreed in writing by the parties) the parties must in good faith attempt to resolve the dispute expeditiously.

40.4 If the parties cannot resolve the dispute within the period detailed in clause 40.3 above, then the parties agree to attempt to resolve the dispute using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques. The parties must act in good faith to appoint a mediator or expert within 7 days after the end of the period detailed in clause 40.3 above. If the parties are unable to agree on a mediator or expert, then a mediator or expert is to be nominated by the President of the Queensland Law Society.

40.5 The role of any mediator or expert appointed under clause 40.4 above is to assist in the parties negotiating a resolution of the dispute. The mediator or expert is not appointed to make a decision which is binding on the parties. Any information or documents disclosed by the other party pursuant to any dispute resolution pursuant to this clause is strictly confidential and will be deemed to be provided on a without prejudice basis and must not be used except to attempt to resolve the dispute.

40.6 Each party must bear its own costs of complying with this clause, however the costs of any mediator or expert engaged must be paid equally.

41 Notices

41.1 Form

Any notice or other communication to or by any party must be:

(a)       in writing and in the English language;

(b)       addressed to the address of the recipient in the Sales Order or to any other address as the recipient may have notified the sender; and

(c)       be signed by the party or by a solicitor or representative engaged by the sender.

41.2 Manner

In addition to any other method of service authorised by law, the notice may be:

(a)       personally served on a party;

(b)       left at the party’s current address for service;

(c)       sent to the party’s current address for service by prepaid ordinary mail or if the address is outside Australia by prepaid airmail;

(d)       sent by electronic mail to the party’s electronic mail address.

41.3 Time

If a notice is sent or delivered in the manner provided in clause 41.2 it must be treated as given to or received by the addressee in the case of:

(a)       delivery in person, when delivered;

(b)       delivery by post:

(i)         in Australia to an Australian address, the third Business Day after posting; or

(ii)        in any other case, on the tenth Business Day after posting;

(c)       electronic mail, when the sender’s computer reports that the message has been delivered to the electronic mail address of the addressee,

but if delivery is made after 5.00pm on a Business Day it must be treated as received on the next Business Day in that place.