In this Agreement unless the context permits otherwise:
i. “Agreement” means the Quotation accepted by the Customer incorporating these Conditions of Supply and Installation.
ii. “Customer” means the person described under Customer details who accepts the Quotation.
iii. “Force Majeure” means circumstances beyond the reasonable control of the parties which results in a party being unable to observe or perform on time the obligations under the Agreement. Such circumstances shall include but shall not be limited to Acts of God, lightening strikes, earthquakes, floods, storms, explosions, fires and any natural disaster and acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and strikes.
iv. “Goods” means the goods the subject of this Agreement supplied by the Company.
v. “GST” means any consumption tax imposed by government, whether at point of sale or at some other specified occurrence by whatever name, which operates during the term of the Agreement and includes (without limitation) a Goods and Services Tax, a broad base consumption or indirect tax and valued added tax. Goods and Services are to be treated as taxable for the purposes of GST.
2. Unless the contrary intention appears words in the singular include the plural and vice versa, words importing a gender include any other gender and a reference to a person includes a partnership and a body whether corporate or otherwise.
3. A Quotation is valid for 14 (fourteen) days from the date of the Quotation which, if not accepted within that period by the Customer, may be subject to revision or withdrawal by the Company. Any request by the Company to a variation in the Goods or installation must be in writing and accepted by the Company in writing and the price shall be adjusted accordingly. The price shall also be adjusted for any alterations or variations to the job location, structural plans or design occurring after the date of this Quotation and for any change in the cost of labour, materials, local State or Federal fees charges and taxes.
4. The Company shall be paid the price set out in the Quotation subject to these Conditions which does not include the hoisting and carriage expenses which are payable by the Customer. Unless specified in the Quotation, the Price is net of GST. Unless otherwise specified in the Quotation, the Price and expenses are payable upon completion. A Customer shall on acceptance of a Quotation pay the deposit set out in the Quotation. The Company shall be entitled to charge interest at the rate fixed under Section 2 of the Penalty Interest Rates Act 1983 on any monies not paid when due from the date upon which they are due to the date of actual payment.
5. The Customer may only cancel the Agreement with the written consent of the Company and upon payment for any Goods and services supplied and/or performed by the Company, including goods ordered by the Company from a third party but not delivered and which cannot be cancelled by the Company without penalty. The deposit paid by a Customer shall be forfeited by the Customer at the absolute discretion of the Company.
6. 6.1 The Customer or his builder or agent shall be responsible for and shall at his expense:
6.1.1 Obtain all necessary permits and approvals, if any, required for performance of the work by the Company.
6.1.2 Ensure that there is adequate access to the job location for entry and installation of the Goods.
6.1.3 Keep the Goods secure and in safe storage upon delivery to the job location and insure it for its full value.
6.1.4 Provide adequate power supply to the job location for use by the Company.
6.1.5 Ensure that the job location will carry the additional electrical loading of the goods to be installed.
6.1.6 Ensure that the job location is suitably firmly insulated and structurally sound.
6.1.7 Be responsible for damage caused by the Customer, his builder, his agent or third parties to the goods after installation.
6.2 The Company is not liable for any damage or defect caused to the improvements erected at the job location by reason of a latent defect or any physical condition of the improvements or other physical characteristic that may be susceptible to cracking, movement, or shrinkage.
7. Money or other assets received by the Customer (being a builder, contractor or developer) from an Owner (including a future Owner) in consideration of Goods and/or services supplied to the Customer for the benefit of the Owner shall be held on trust for the Company until such time as payment to the Company has been completed.
8. To the extent permitted by law, title or property in Goods shall not pass to the Customer until payment in full has been made. Until payment in full, the Customer is a Bailee for the Goods. The Customer must hold the Goods as Bailee and fiduciary agent of the Company and must keep in its possession and control in good repair and condition excluding fair wear and tear and store it separately and marked so that the Goods are clearly and easily identifiable as the Company’s property and inform the Company of the location of the Goods if requested. If the Customer sells the goods before payment in full to the Company or if the Customer uses the goods in a manufacturing or construction process of its own or some third party, it must hold such part of the proceeds of any sale or dealing in the Goods on trust for the Company in respect of those Goods and must keep such proceeds in a separate account as the beneficial property of the Company and the Customer must pay such amount to the Company on demand.
9. Notwithstanding any other provisions to the contrary, the Company reserves the following rights in relation to the Goods until all amounts owed by the Customer to the Company in respect of the Goods and all other goods and services supplied to the Customer by the Company at any time are fully paid:
9.1 Legal and equitable ownership of the Goods.
9.2 To retake possession of the Goods; and
9.3 To keep or resell any of the Goods repossessed.
10. In the event of a breach of these conditions of sale by the Customer including, without limitation, failure by the Customer to make payment for the Goods by the dates specified by the Company to the Customer, the Customer must return the Goods to the Company immediately on demand. If the Customer does not return the Goods to the Company on demand, the Company is entitled (without further notice) to enter upon the Customer’s Premises at any time to do all things necessary to recover the Goods. The Customer hereby grants full leave and irrevocable licence to the Company and any person authorised by the Company to enter upon any Premises of the Customer where the Goods are stored for the purposes of retaking possession of the Goods.
11. The Customer agrees that:
11.1 It will be liable for all costs, damages, expenses or other sums of money incurred or suffered by the Company (whether direct or indirect) as a result of the Company retaking possession of the Goods or otherwise exercising its rights under this Clause; and
11.2 It will indemnify the Company for all fees (including legal fees on a full indemnity basis) costs and expenses incurred or suffered as a result of any and all prosecution, actions, demands, claims or proceedings brought by or against the Company in connection with retaking possession of the Goods or the exercise by the Company of its rights under this clause, and the Customer must repay all such fees, costs, losses, damages, expenses or any other sums of money on demand.
12. In addition to any other remedy provided by this Agreement or at law, if payment of an invoice is not made when due, the Company may, without notice to the Customer:
12.1 Suspend completion of the work;
12.2 Be deemed agent of the Customer for the purpose of recovering outstanding amounts owing to the Customer in relation to Goods and services and applying amounts recovered in reduction for Customer’s indebtedness to the Company; and
12.3 If any Goods are still in the possession of the Customer, repossess such goods.
13. The Vendor shall use reasonable endeavours to supply and/or install Goods at the job location within a reasonable time. Any delivery/installation/completion date set out in the Quotation is approximate only. The Company shall not be liable to the Customer, any Owner or to any third party for failure to complete the Agreement, in whole or in part, or for any delay in delivery or error in completing the Agreement for any reason whatsoever.
14. The Goods are supplied with the manufacturer’s warranty and the workmanship supplied by the Company is subject to the industry guarantee. Subject to the following provisions of this Agreement, and the terms of the manufacturer’s warranty, any condition or warranty which would otherwise be implied in the Agreement including but not limited to any warranty of merchantability, fitness for any particular purpose, non-infringement, freedom from defects and future availability of spares is hereby excluded.
15. Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement. However, the liability of the Company for any breach of such condition or warranty shall be expressly limited to:
15.1 In the case of Goods, the payment of the costs of replacing the Goods or of acquiring equivalent goods; and
15.2 If the breach relates to the services, the payment of the cost of having the services supplied again.
16. Neither party shall be liable for any delay or failure to perform its obligations if caused or anticipated due to Force Majeure and such party shall have used its best efforts to avoid such delay or failure and minimise its duration and has given prompt written notice to the other party, the performance of that party’s obligations will be suspended.
17. If a delay or failure by a party to perform its obligations due to Force Majeure exceeds sixty (60) days, either party may immediately terminate the Agreement on the giving of written notice to the other party. If the Agreement is terminated pursuant to this clause, the Company shall refund monies paid by the Customer for Goods or services that have not been provided by the Company.
18. Unless specified in the Quotation, all information, copyright, design and specifications however characterised generated by the Company in the course of supplying goods and/or services and which relate to the Company products, business and/or technology, deliverables and all intellectual and industrial property rights belong exclusively to the Company and cannot be used by the Customer without the Company’s written consent.
19. In the event the Customer is a company, the person who accepts the Quotation for and on behalf of the Customer hereby guarantees the due performance and observance by the Customer of the terms and conditions herein contained and acknowledges that his or her liability is an unconditional continuing liability until all the said terms and conditions are duly performed by the Customer and that this guarantee binds his personal representatives and shall not be affected by any time or indulgence the Company may extend to the Customer.
20. If the Customer shall be or include a company, the Company will prior to acceptance of the Quotation procure the execution by each of its Directors of a guarantee to be annexed to this Quotation to be held by the Company.
21.1 In this clause “PPSA” means the Personal Property Securities Act 2009; “PMSI” means a purchase money security interest as defined in the PPSA; “PPSR” means the Personal Property Securities Register; “security interest”, “security agreement”, “financing statement”, “financing change statement”, “verification statement”, “attached”, “attachment”, “perfected” and all related terms have the meanings given them by the PPSA.
21.2 If the Company determines that an agreement entered into containing the Conditions of Sale (or a transaction in connection with it) is or contains a security interest or transitional security interest for the purposes of the PPSA, then the conditions in this clause will apply to this Agreement.
21.3 The Customer acknowledges that the Conditions of Sale constitutes a security agreement which creates a security interest in favour of the Company in the Goods (including all Goods previously supplied by the Company to the Customer (if any) and all after acquired goods supplied by the Company to the Customer, or for the Customer’s account).
21.4 The Customer agrees to grant a PMSI in the Goods and all future goods supplied to the Customer by the Company.
21.5 The Customer agrees that the PMSI has attached to all Goods now or in the future supplied to the Customer by the Company.
21.6 The Customer agrees, until title in the Goods passes to it, to keep all Goods free of any charge, lien or security interest except as created under this Agreement and not otherwise deal with the Goods in a way that will or may prejudice the rights of the Company under these Conditions of Sale or the PPSA.
21.7 The Customer undertakes to sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and current) which the Company may reasonably require to enable registration of a financing statement or financing change statement on the PPSR or to ensure that the security interest is otherwise enforceable, perfected and effective.
21.8 The Customer undertakes to indemnify, and upon demand, reimburse the Company for all expenses incurred in registering a financing statement or financing change statement on the PPSR.
21.9 The Customer undertakes to give to the Company not less than 14 days prior written notice of any proposed change in the Customers details, including, but not limited to, changes of address, company or business name and/or contact details.
21.10 Unless otherwise agreed to by the Company in writing, the Company and the Customer shall not disclose to any third party any information of the kind referred to in Section 275(1) of the PPSA.
21.11 The Company is not obliged to give the Customer any notice or provide copies of any documents under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded and the Customer consents to the waiver of the requirement for notice or copies of any documents under this clause.
21.12 The Company and the Customer agree that the following provisions of the PPSA do not apply to or in relation to the security interest to the extent that the PPSA permits the parties to contract out of or waive such provisions: section 95 (notice of removal of accession) to the extent that it requires the Company as secured party to give a notice to the Customer as grantor; section 96 (when person may retain an accession);section 117 (obligations secured by land and personal property); section 118 (enforcing securities in accordance with land law); section 120 (enforcement of liquid assets); section 121(4) (enforcement of liquid assets – notice to grantor);section 125 (obligation to dispose of or retain collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase); section 130 (notice of disposal), to the extent that it requires the Company as secured party to give a notice to the Customer as grantor; section 132(3)(d) (secured party to give statement of account); section 132(4) (statement of account if no disposal); section 134(1) (retention of collateral); section 135 (notice of retention of collateral); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).