1. DEFINITIONS
1.1 In this agreement, unless the context otherwise requires:
agreement means the agreement between the Company and the Customer set out in these terms and conditions, the quotation and any other special terms contained in or attached to the quotation.
business day means a day other than a Saturday, Sunday or State public holiday in Western Australia.
Company means G & J Koutsoukos Holdings Pty Ltd trading as ‘Clearshield Australia’ ABN 51 009 449 012.
Customer means the person named as the Customer in the quotation.
defectivein relation to goods and/or services means goods and/or services which are:(a) not in conformity with this agreement;
(b) not free of defects in design, performance, materials, workmanship or makeup; or
(c) damaged, deficient, faulty or incomplete.
deposit means the deposit specified in the quotation.
goods means the goods specified in the quotation.
GST law has the same meaning as GST law in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and GST means the same as in the GST law.
party means the Company or the Customer and parties means both the Company and the Customer.
price means the total of price of the goods and/or services specified in the quotation.
quotation means the quotation for goods and/or services issued by the Company to the Customer to which these terms and conditions are attached containing, amongst other things, a description of the goods and/or services.
services means the services specified in the quotation.
site means the install address where the goods are supplied and/or the services are performed.
tax invoice is an invoice which complies with the GST law.
warranty periodmeans:(a) where no services are provided, the period of 12 months from the date of delivery of the goods to the site; or
(b) where this agreement includes provision of services, the period of 12 months from the date of completion of the services.
1.2 Except where the same have been amended by these terms and conditions, words defined or terms specified in the quotation have the same meaning when used in these terms and conditions.
1.3 In this agreement unless the context otherwise requires:
(a) the singular includes the plural and vice versa.
(b) a gender includes all other genders.
(c) words denoting an individual include a firm, body corporate, unincorporated association and any government or governmental, administrative, monetary, fiscal or judicial agency, authority, body, commission, department, tribunal or entity of any kind and vice versa.
(d) references to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them.
(e) headings and italicized, highlighted or bold type do not affect the interpretation of this agreement.
(f) references to a clause, paragraph, annexure, attachment or schedule is a reference to the same in this agreement.
(g) a reference to a party in this agreement includes a party’s personal representatives, successors in title and permitted assigns.
(h) a promise, agreement, representation or warranty by two or more persons binds them jointly and severally.
(i) a promise, agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and severally.
(j) a reference to a document includes that document as amended or replaced.
(k) a reference to a whole thing includes a reference to part of that thing.
(l) a party to this agreement that is a trustee of a trust is bound in the party’s own personal capacity and as trustee of the trust.
(m) a provision of this agreement may not be construed adversely to a party solely because that party, or its representative, was responsible for the preparation of this agreement or the preparation of that provision.
(n) other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning.
(o) “include”, “including”, “for example”, “such as” and other similar words or expressions in this agreement do not limit what else is included and are to be construed as if they are followed by the words “without limitation”.
(p) a reference to time is a reference to Western Standard time.
(q) if a period of time is specified and dates from a day or the day of an act or event, it is to be calculated exclusive of that day.
(r) if an act or event must occur or be performed on or by a specified day and occurs or is performed after 5.00pm on that day, it is taken to be done on the next day.
(s) if anything under this agreement must be done on a specified day that is not a business day then that thing must be done on the next business day.
(t) a reference to “$”, “A$”, “AUD” or dollars is a reference to the lawful currency of the Commonwealth of Australia.
2. AGREEMENT
2.1 The Company will supply the goods and/or provide the services to the Customer in accordance with this agreement.
2.2 This agreement will be made by the Customer signing the quotation and returning it to the Company together with payment of the deposit within 30 days of the quote date.
2.3 In case of any conflict or ambiguity between the quotation, any special terms contained in or attached to the quotation and these terms and conditions, the quotation and any special terms contained in or attached to it shall have precedence over these terms and conditions.
2.4 By signing the quotation returning it to the Company, the Customer agrees:
(a) to be bound by the terms in this agreement; and
(b) that the terms and conditions in any of the Customer’s documents, in respect of the supply of the goods and/or the provision of the services are expressly excluded from this agreement and of no legal effect.
3. SUPPLY OF GOODS
3.1 The Company will use reasonable endeavours to supply the goods to the site by the estimated installation lead time specified in the quotation.
3.2 The goods and/or services must match the description, nature and quality in the quotation.
3.3 The goods and/or services will comply with all applicable legislation, regulation and relevant standard of Standards Australia.
3.4 The goods and/or services will be fit for the purpose for which goods and/or services of the same kind are commonly supplied or bought.
3.5 The goods will be new and of merchantable quality (unless otherwise specified in the quotation).
4. PROVISION OF SERVICES
4.1 The Customer will remove any old materials, debris, fittings, fixtures, furniture, or chattels from the place on the site where the goods are to be installed and provide the Company with clear and uninterrupted access to the site to enable the goods to be delivery and installed on the site by the estimated installation lead time.
4.2 The Customer grants the Company and its officers, employees, agents and contractors a right and licence at all reasonable times to enter the site for the purposes of this agreement, including the right to remove any of the goods on the site or attached to the site.
4.3 The Customer acknowledges and accepts that there may be slight variations and inconsistencies in the colour, texture and finish of the goods.
4.4 In performing the services, the Company will:
(a) act with due care, safety and skill, using appropriately qualified, competent, skilled and experienced personnel, and in a professional and tradesman like manner;
(b) provide all equipment, tools, labour, products and materials necessary to complete the services;
(c) use reasonable endeavours to complete the services by the estimated installation lead time;
(d) leave the place of installation on the site secure, clean and tidy;
(e) not to interfere with any activities of the Customer or any other person on the site;
(f) comply with, and ensure that its officers, employees, agents and contractors comply with all applicable laws, regulations and standards, and any applicable order or direction of any government or any government, municipal or statutory agency, authority, body or department.
(g) take all reasonable measures necessary to prevent injury and damage to people and property and to avoid causing nuisance or unreasonable noise and disturbance to any person;
(h) promptly rectify at its own cost any damage to property it causes in the performance of the services; and
(i) promptly inform the Company of any matter or thing which comes to its notice that may impede the performance of the services.
4.5 The Customer agrees that if any building or fixture to which the goods are to be attached or installed are not square or are warped or out of alignment, the Company is not liable for any gap or overlap following installation of the goods.
4.6 The Customer will:
(a) examine the goods and services promptly upon completion of installation; and
(b) notify the Company in writing of any mis-delivery, shortage, defect, or damage in or to the goods and/or services within 7 days of the date of completion of the installation.
4.7 The Customer may not cancel, reduce, expand or otherwise vary the goods and/or services without the prior written agreement of the Company. If the Company agrees to any reduction, expansion or variation to the goods and/or services it will be subject to a further quotation on terms acceptable to the Company and the Customer accepting that quotation.
5. PRICE AND PAYMENT
5.1 In consideration of the Company supplying the goods and/or providing the services to the Customer in accordance with this agreement, the Customer must pay the price to the Company as follows:
(a) the deposit at the time the Customer returns the quotation signed by the Customer to the Company; and
(b) the balance of price within 2 days of delivering the goods to the site or where the Company is also providing services within 2 days of completion of the performance the services (for example, the installation of the goods).
5.2 The price is inclusive of all costs incurred by the Company in supplying the goods and/or performing the services.
5.3 The Company will submit a tax invoice to the Customer for goods and/or services to the Customer upon delivery of the goods and/or on the completion of the services. With the tax invoice the Company will provide the quotation number, a description of the delivered goods and/or performed services and the amount of any applicable GST.
5.4 The Customer must pay to the Company by credit card or electronic funds transfer to the Customer’s bank account specified on the quotation:
(a) the deposit immediately upon acceptance of the quotation;
(b) the balance of the price to the Company immediately upon delivery of the goods and/or on the completion of the services; and
(c) any other moneys payable to the Company under this agreement within 7 days of receipt of the Company’s invoice.
5.5 Where the Customer disputes the invoice or part thereof, the Customer will pay the undisputed part of the invoice and if the resolution of the dispute determines that the Customer is to pay an amount to the Company, the Customer will pay that amount forthwith upon resolution of the dispute. Each party must negotiate with the other expeditiously and in good faith to resolve any such dispute as soon as practicable.
5.6 Unless otherwise stated, all amounts payable under this agreement are inclusive of GST. A recipient of a taxable supply made under this agreement must pay to the supplier an amount equivalent to any GST paid or payable by the supplier in respect of the taxable supply subject to the supplier issuing a valid tax invoice in accordance with the GST law to the recipient. The GST amount must be paid at the same time as the other consideration for the supply is to be paid or provided.
5.7 If the Customer does not pay any moneys payable to the Company under this agreement within 5 business days of the due date for payment, the Customer must pay interest to the Company upon demand on the outstanding amount calculated daily at the rate of 1.5% per month from the date the payment was due until the date the payment is made.
6. RISK AND TITLE
6.1 Risk in the goods passes to the Customer when the goods are delivered to the site.
6.2 Property and title in the goods only pass to the Customer upon full payment of the price.
7. WARRANTIES
7.1 The Company warrants that subject to the Customer complying with this agreement:
(a) the Customer will be entitled to undisturbed possession of the goods from the time title in the goods passes to the Customer in accordance with this agreement;
(b) title in the goods will pass to the Customer free of any security interest, lien, charge or other encumbrance;
(c) the goods and/or services will not be defective; and
(d) the goods and/or services will not infringe any patents, registered designs, trade marks, copyright, confidential information or other intellectual property rights of any third party.
7.2 If, during the warranty period, any of the goods or services are found to be defective, the Customer’s sole remedy will be for the Company, at the Company’s option and cost to:
(a) repair or replace the defective goods;
(b) re-perform or make good the defective services; or
(c) pay the expenses of a third party engaged by the Company to repair, replace, reperform or make good (as the case may be) any defective goods and/or services during the warranty period.
7.3 The Company is not liable for any defect or fault in the goods and/or services that is caused by or to the extent contributed to by:
(a) the negligence of the Customer or any one acting on the Customer’s behalf;
(b) the misuse or neglect of the goods or failure to maintain the goods as instructed by the Company;
(c) repairs to the goods by anyone except the Company; or
(d) any act, omission or thing that is beyond the Company’s control.
7.4 The Customer agrees to pay the Company a reasonable fee for any time the Company spends investigating any defective goods and/or services at the request of the Customer that the Company is not liable to repair, replace or rectify under the agreement.
7.5 The goods are covered by the performance warranty on the terms of the performance warranty attached to this agreement.
7.6 Except as specified in this agreement, all express and implied warranties, guarantees and conditions under statute or general law are, to the maximum extent permitted by law, expressly excluded.
7.7 The Company will not be liable to the Customer in any circumstances for any indirect, economic, special or consequential loss or damage, including loss of revenue or loss of profit.
8. CONFIDENTIALITY
8.1 No party shall during the term of this agreement and for a period of 5 years after termination or the completion of the performance of this agreement (except in the proper course of its duties under this agreement or as required by law or by the other party) disclose to any person any information of a confidential nature of or relating to the other party which it acquired as a result of this agreement or the negotiations preceding this agreement.
8.2 Nothing in this agreement prohibits disclosure of information which:
(a) is in the public domain;
(b) is lawfully received from a third party; or
(c) is required to be disclosed by law or court order.
8.3 The obligations in this clause survive the termination of this agreement.
9. TERMINATION
9.1 Either party may terminate this agreement with immediate effect by giving written notice to the other party if the other party:
(a) breaches this agreement and does not remedy the breach within 5 business days of receipt of written notice from the party not in breach requiring the breach to be remedied;
(b) being a body corporate, subject to sections 415D, 434J and 451E of the Corporations Act,:
(1) has a liquidator or provisional liquidator appointed;
(2) becomes an insolvent under administration (as defined in section 9 of the Corporations Act 2001);
(3) has a controller (as defined in section 9 of the Corporations Act 2001) appointed to it or any of its property;
(4) as a result of the operation of section 459F(1) of the Corporations Act 2001 is taken to have failed to comply with a statutory demand or is unable to pay its debts as and when they fall due and payable due; or
(5) enters into any compromise, arrangement or assignment, whether formal or informal, with any of its members or creditors or any analogous event occurs; or
(c) being a natural person:
(1) dies or ceases to be of full legal capacity or otherwise becomes incapable of managing his or her own affairs for any reason;
(2) is unable to pay his or her debts as and when they fall due and payable;
(3) has a trustee in bankruptcy appointed; or
(4) enters into any compromise, arrangement or assignment, whether formal or informal, with any of its creditors or any analogous event occurs.
9.2 If this agreement is terminated, the Company will immediately cease the supply of the goods and/or performance of the services.
9.3 Termination for any reason does not affect the rights of a party that arise before the termination, or as a consequence of the event or occurrence giving rise to the termination, or as a consequence of the breach of any obligation under this agreement which continues to take effect after termination.
10. NOTICES
10.1 Any notice or other communication in connection with this agreement:
(a) must be in writing and signed by the party giving it or its solicitor or agent, but an email does not have to be signed;
(b) must be given or served in any of the following ways, namely:
(1) in a manner authorised by law or by personal delivery;
(2) sent by prepaid post to the address of the addressee specified in the quotation;
(3) sent by fax to the fax number of the addressee specified in the quotation; or
(4) sent by email to the email address of the addressee specified in the quotation, or if the addressee notifies another address, fax number or email address in accordance with this clause then to that address, fax number or email address.
(d) takes effect from the time it is received and, unless a later time is specified, is taken to be received:
(1) if served or given by personal delivery, at the time it is delivered;
(2) if left at the address of the addressee, at the time it is left;
(3) if sent by prepaid ordinary post to the address of the addressee, at the expiration of 3 business days after posting;
(4) if sent by fax to the fax number of the addressee, at the time shown in the transmission report as the time that the whole fax was sent; or
(5) if sent by email to the email address of the addressee specified above, when the email is sent (unless the sender receives an automated message that the email has not been delivered),
(6) if sent by email to the email address of the addressee, at the time the email was sent unless the sender is aware, or the sender’s internet service provider notifies the sender, that the email was not sent successfully, provided that if notices are received after 5.00 pm in the place of receipt or on a non-business day, they are taken to be received at 9.00 am on the next business day.
11. PPSA
11.1 The terms used in this clause and defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the meanings given to them in the PPSA.
11.2 To secure the due and punctual performance of the Customer’s obligations under this agreement, the Customer grants to the Company a security interest in all of the Customer’s present and after-acquired property in the goods and the proceeds (as that term is defined in the PPSA) (collateral).
11.3 The Customer agree the Company may, at its discretion, do any one or more of the following:
(a) register, or give any notification in connection with, any relevant security interest;
(b) exercise rights in connection with the security interest; and
(c) give notice to the Customer requiring the Customer to provide all requisite information, and do anything at the Customer’s expense (including executing any new document or agreement, obtaining consents and supplying information) that the Company requires to:
(1) ensure that any security interest is enforceable, perfected and otherwise effective;
(2) register, or give any notification in connection with, any security interest in order to confer the priority the Company requires;
(3) exercise rights in connection with the security interest; or
(4) ensure that the Company’s rights and obligations are not adversely affected, or that its position is improved.
11.4 The Customer must comply with any notice received pursuant to clause 8.3(c) within the time stipulated in the notice.
11.5 The Customer appoints each director of the Company the Customer’s attorney to complete and execute any and all documentation to give effect to clause 11.3(c).
11.6 If the Customer is in default of any of the Customer’s obligations hereunder then in addition to any other rights provided by law at any time thereafter:
(a) the security interest arising hereunder becomes immediately enforceable; and
(b) the Company may in the Customer’s name or otherwise do anything that the Customer could do in relation to the collateral.
11.7 The Customer irrevocably and unconditionally waives any right to receive from the Company any notice under the PPSA (including notice of a verification statement) unless required by the PPSA and the notice cannot be excluded.
11.8 The following provisions of the PPSA do not apply and, for the purposes of section 115 are “contracted out” of this deed, namely sections 95 (notice of removal of accession), 96 (when a person with an interest in the whole may retain an accession), 121(4) (enforcement of liquid assets—notice to grantor), 130 (notice of disposal), 132(3)(d) (contents of statement of account after disposal) and (4) (statement of account if no disposal), 132(4) (statement of account if no disposal), 135 (notice of retention), 142 (redemption of collateral) and 143 (reinstatement of security agreement).
11.9 The Customer agrees that the Company has the power to retain, deal with or dispose of any property seized by it in the manner specified in sections 123 (secured party may seize collateral), 125 (obligation to dispose of or retain collateral), 126 (apparent possession of collateral), 128 (secured party may dispose of collateral), 129 (disposal by purchase) and 134(1) (proposal of secured party to retain collateral) of the PPSA and in any other manner it deems fit.
11.10 The Customer must notify the Company immediately of any change in the Customer’s name, address, and any other information provided to the Company to enable the Company to register a financing change statement under the PPSA if required.
11.11 The Customer agrees with the Company that the subject matter referred to in section 275(1) of the PPSA is confidential and the Customer and the Company must not disclose any such information to a third party.
12. FORCE MAJEURE
If a party’s performance of this agreement, or of any obligation hereunder is prevented, restricted or interfered with by reason of fire, storm, flood, earthquake, explosion, breakdown, strike, labour dispute, accident, lack of transportation, epidemic, lack of raw materials, power or supplies, war, revolution, civil commotion, acts of God, blockade or embargo or any law, order, proclamation, decree or requirement of any government or any government, municipal or statutory agency, authority, body or department, or any other act whatsoever beyond the reasonable control of a party, then:
(a) the party so affected, upon giving prompt notice to the other party, shall be excused from such performance (other than an obligation to pay any money) to the extent of such prevention, restriction or interference; and
(b) the other party shall likewise be excused from performance of its obligations to the extent such obligations relate to the performance so prevented, restricted or interfered with, provided that the party so affected must use its best efforts to avoid and remove such causes of non-performance. Both parties will resume performance of their respective obligations as soon as is practicably possible when such cases are removed.
13. GENERAL
13.1 Each party shall sign, execute and do all agreements, acts, documents and things as may reasonably be required by any other party to carry out and give effect to the terms and intentions of this agreement.
13.2 The parties agree that this agreement contains the entire agreement between them as to its subject matter and supersedes all prior agreements understandings and negotiations as to such subject matter.
13.3 If any provision of this agreement becomes invalid, the provision is enforceable to the extent that it is not invalid, whether it is in severable terms or not, provided that this clause does not apply where enforcement of a provision of this agreement in accordance with this clause would materially affect the nature or effect of the parties’ obligations under this agreement.
13.4 No party may rely on the words or conduct (including a failure or delay in the exercise of a right, power or remedy arising under or in connection with this agreement) of the other party as a waiver of any right, power or remedy under or in connection with this agreement unless the waiver is in writing and signed by the party granting the waiver, and any single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
13.5 A variation of this agreement must be in writing and signed by the parties.
13.6 Except as provided in this agreement and permitted by law, the rights, powers and remedies provided in this agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this agreement.
13.7 The special terms and conditions (if any) contained in or attached to the quotation shall be and be deemed to be incorporated in this agreement as if fully set out herein and in the event that any inconsistency arises between such special terms and conditions and any other provisions of this agreement the special terms and conditions shall prevail.
13.8 This agreement shall be governed by the law of Western Australia and the parties hereto agree to submit to the jurisdiction of the courts of Western Australia in all matters arising out of this agreement and any court hearing appeals from those courts. Each party unconditionally submits to the jurisdiction of the courts mentioned above and waives any right it has to object to an action being brought in any of those courts.