Terms and Conditions of TradeBy accepting a Quotation from the Supplier, the Customer agrees to be bound by these General Terms and Conditions of Trade.
1. DEFINITIONS AND INTERPRETATIONS
In these Terms and Conditions of Trade:
Additional Charge means:-
(a) fees or charges for additional work performed at the Customer’s request or reasonably required as a result of the Customer’s conduct, calculated in accordance with the Supplier’s then current prices or hourly rates;
(b) expenses incurred by the Supplier, at the Customer’s request or reasonably
required as a result of the Customer’s conduct.
Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided.
Customer means the person that the Quotation is addressed to (non-commercial) or the Company that provides the Order (commercial) and includes the Customer’s agents and permitted assigns.
Goods means any goods supplied by the Supplier including those supplied in the course of providing Services.
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs.
Loss includes, but is not limited to, costs (including, but not limited to, party to party legal costs and the Supplier’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Order means a purchase order for Goods or Services placed by a Customer in response to a Quote and as varied in writing from time to time by the parties.
PPS Law means:-
(a) the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and
(b) any amendment made at any time to any other legislation as a consequence of a PPS Law.
Quote means a written description of the Goods or Services to be provided, an estimate of the Supplier’s charges for the performance of the required work and an estimate of the time frame for the performance of the work.
Services means the services to be provided by the Supplier to the Customer in accordance with a Quote and these Terms and Conditions.
Supplier means the entity specified as the supplier of Goods or Services on the Quote and includes the Supplier’s agent and permitted assigns.
Terms and Conditions means this document.
Warranty Application Form means the form in Schedule A
Warranty Claim Form means the form in Schedule B.
In these Terms and Conditions, unless the context otherwise requires:-
(a) a reference to writing includes email and other communication established
through the Supplier’s website (if any); and
(b) the singular includes the plural and vice versa;
(c) a reference to a clause or paragraph is a reference to a clause or paragraph of these Terms and Conditions;
(d) a reference to a party of these Terms of Trade or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) headings are for ease of reference only and do not affect the meaning or interpretation of these Terms and Conditions; and
(g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:-
(i) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
(ii) in all other cases, must be done on the next Business Day.
2. AGREEMENT TO BUY AND SELL
In consideration of payment of the price specified in the Quotation, the Supplier agrees to sell and the Customer agrees to buy the Products on the terms and conditions of this Agreement.
3. ENGAGEMENT OF SUPPLIER
(a) These Terms and Conditions apply to all transactions between the Customer and the Supplier relating to the provision of Goods and Services, including all quotations, contract and variations. These Terms and Conditions take precedence over conditions contained in any document of the Customer or elsewhere.
(b) The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
(c) The Supplier may amend any details in a Quote by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
(a) The Supplier may provide the Customer with a Quote. Any Quote issued by the Supplier is valid for 60 days from the date of issue.
(b) Unless specifically included in the Quote, our Quote does not include delivery and/or installation of the Goods.
(c) Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary material and instructions to the Supplier.
(d) Following provision of a Quote to the Customer, the Supplier is not obliged to commence work until the Quote has been accepted in writing or by e-mail by the Customer, with deposit paid or Order received.
(e) The Supplier reserves the right to amend any Quote before an Order has been made to take into account any rise or fall in the cost of completing the Order. The Supplier will notify the Customer of any amendment as soon as practicable, at which point the amended quote will be the Quote for the purposes of these Terms and Conditions.
(f) An indication in a Quote of the timeframe for the provision of the Goods or Services is an estimate only and is not a fixed timeframe. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon the Supplier.
5. ACCEPTANCE OF QUOTE
The Customer may accept a Quotation either in writing or verbally. Acceptance shall be deemed to be an agreement by the Customer to be legally bound by this Agreement.
6. PURCHASE ORDERS
(a) Commercial Customers applying for a credit account with the Supplier must supply an Order for the provision of Goods or Services in writing on the Customer’s standard purchase order form (unless otherwise agreed).
(b) An Order will not be placed by the Customer unless the Order clearly identifies the Goods or Services ordered and the Supplier’s Quote number. Any costs incurred by the Supplier in reliance on incorrect or inadequate information may result in the imposition of an Additional Charge.
(c) Orders must be signed by an authorised representative of the Customer and must specify the required date of delivery.
(d) Placement of an Order by the Customer signifies acceptable by the Customer of these Terms and Conditions and the Quote number specified on the Order.
(e) The Supplier may in its absolute discretion refuse to provide Goods or Services where:-
(i) Goods are unavailable for any reason whatsoever;
(ii) credit limits cannot be agreed upon or have been exceeded; or
(iii) payment for Goods or Services previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of the Supplier, associated with the Customer under the same or another supply contract, has not been received by the Supplier.
(f) An Order cannot be cancelled without the prior written consent of the Supplier. Where an Order is cancelled, the Customer indemnifies the Supplier against any Losses incurred by the Supplier as a result of the cancellation, including, but not limited to loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.
(a) The Customer may request that its Order be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect.
(b) If the Customer wishes to vary its requirements after a Quote has been prepared or after the placement of an Order, the Supplier reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by the Supplier in respect of the required variation supersedes the original Quote. If the revised Quote only specifies additional work the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods and/or Services.
(c) The Supplier has an automatic extension of time for the provision of Goods or Services equal to the delay caused by the variation.
Delivery terms are estimates only and the Supplier is not liable for any late delivery.
9. INVOICING AND PAYMENT
(a) Non-commercial Customers and commercial Customers who do not have an approved credit account with the Supplier must pay a deposit of 25% of the Price to confirm the Customer’s order. The Customer must pay for the Product in full prior to delivery or dispatch of the Product from the Supplier’s premises.
(b) For commercial Customers who have an approved credit account with the Supplier, the following payment terms apply:
i) The Supplier may issue an invoice to the Customer upon completion of the provision of the Goods or Services, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing the Supplier’s charge for the work performed in completing the Order and for any Additional Charges.
ii) The Customer must pay an invoice issued by the Supplier to the Supplier within 30 days of a valid tax invoice being issued to the Customer.
iii) If any invoice is due but unpaid, the Supplier may withhold the provision of any further Goods or Services until overdue amounts are paid in full.
iv) The Supplier may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.
v) The Customer is not entitled to retain any money owing to the Supplier notwithstanding any default or alleged default by the Supplier of these Terms and Conditions, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods or Services. Nothing in this paragraph affects the Customers rights for any alleged failure of a guarantee under the Australian Consumer Law.
vi) The Customer is to pay the Supplier on demand interest at the rate of 10% per annum on all overdue amounts owed by the Customer to the Supplier, calculated daily.
vii) All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under the Terms and Conditions.
viii) The Customer and Supplier agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
10. ADDITIONAL CHARGES
(a) The Supplier may require the Customer to pay Additional Charges in respect of costs incurred by the Supplier as a result of installation conditions or delays caused by the Customer or reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Goods or Services within the specified timeframe (if any).
The Supplier shall be responsible for installation of the Product only if installation is specified in writing on the Quotation. If installation is not specified on the Quotation, the Customer is responsible for its own installation at the Customer’s cost.
12. CONDITIONS RELATING TO INSTALLATION
(a) If any of the terms of this Agreement are breached, the Customer may face additional costs, charged at an hourly rate of $90 plus GST per employee on site, as determined by the Supplier.
(b) Site requirements that have not been disclosed by the Customer prior to installation, which affect the install schedule, may incur additional charges as determined by the Supplier.
(c) Site requirements that are different to current OHS regulations and legislation and that vary from the installation methods in the Supplier’s Safe Work Method Statements (SWMS) may incur additional charges as determined by the Supplier.
(d) Any site delays that are not caused by the Supplier or adverse weather conditions may incur additional charges as determined by the Supplier.
(e) The Customer must ensure that the area underneath the Goods and immediate surrounds is level and clear prior to the arranged installation date.
(f) If the Supplier is installing footings, the Customer must provide details on underground service locations and soil conditions.
(g) Additional charges include, but are not limited to, hourly rate per employee, accommodation, equipment hire, subcontractor hire, and engineering drawings.
12.2 Shipping Containers
(a) All shipping containers must be in place as per container layout provided by the Supplier prior to the Supplier’s employees arriving on site, unless otherwise arranged.
(b) Containers must be in reasonable condition for mounting shelter/s.
(c) It is the Customer’s responsibility to secure the containers if required, unless otherwise arranged.
12.3 Conditions for Installation
(a) The Supplier will only install the Goods in low winds.
(b) The Supplier will determine if the wind or weather conditions are not safe or suitable for installing the Goods.
(c) The Supplier’s employees may require very early morning access to site if
daytime winds are determined by the Supplier to be too strong for safe installation.
13. ACCEPTANCE OF GOODS
(a) If the Customer fails to advise the Supplier in writing of any fault in Goods or failure of Goods to accord with the Customer’s Order within 48 hours of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer’s order. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
(b) Any claims or disputes by the Customer in relation to an invoice must be notified in writing to the Supplier within 7 days from the date of the invoice.
14. TITLE AND RISK
(a) Risk in the Goods passes to the Customer immediately upon delivery.
(b) Property in Goods supplied to the Customer pursuant to these Terms and Conditions does not pass to the Customer until all money (including money owing in respect of other transactions between the Supplier and the Customer) due and payable to the Supplier by the Customer have been fully paid.
(c) Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of Goods and any Services provided by the Supplier in respect of those Goods, the Customer:
(i) is a bailee of the Goods until property in them passes to the Customer;
(ii) irrevocably appoints the Supplier its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of the Supplier with respect to the Goods under applicable law;
(iii) must be able upon demand by the Supplier to separate and identify as belonging to the Supplier Goods supplied by the Supplier from other goods which are held by the Customer;
(iv) must not allow any person to have or acquire any security interest in the Goods;
(v) agrees that the Supplier may repossess the Goods if payment is not made within 30 days (or such longer time as the Supplier may, in its complete discretion, approve in writing) of the supply of the Goods; and
(vi) the Customer grants an irrevocable licence to the Supplier or its agent to enter the Customer’s premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies the Supplier in respect of any damage to property or personal injury which occurs as a result of the Supplier entering the Customer’s premises.
(d) Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by the Supplier in respect of those Goods, and the Customer makes a new object from the Goods, whether finished or not, or the Customer mixes the Goods with other goods or the Goods become part of other goods (New Goods), the Customer agrees with the Supplier that the ownership of the New Goods immediately passes to the Supplier. The Customer will hold the New goods on trust for the Supplier until payment of all sums owing to the Supplier where under these Terms and Conditions or any other contract have been made and the Supplier may require the Customer to store the New Goods in a manner that clearly shows the ownership of the Supplier.
(e) For the avoidance of doubt, under paragraph (d), the ownership of the New Goods passes to the Supplier at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.
(f) Notwithstanding paragraph (c), the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business provided that:-
(i) where the Customer is paid by a third party in respect of Goods including New Goods, the Customer holds the whole of the proceeds of sale less any GST on trust for the Supplier – in a separate account – until all amounts owed by the Customer to the Supplier have been paid; or
(ii) where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to the Supplier upon the Supplier giving the Customer notice in writing to that effect and for the uprose of giving effect to that assignment the Customer irrevocably appoints the Supplier as its attorney.
(g) Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provide by the Supplier in respect of those Goods, the Customer acknowledges that the Supplier has a right to register and prefect a personal property security interest.
(h) The Supplier may sell or otherwise dispose of the Goods in its absolute discretion and on its own account without limiting any other rights the Supplier has.
(i) The Customer indemnifies the Supplier against any loss damage liability or expense incurred or sustained as a result of the exercise of the Suppliers rights under this clause.
(j) This clause is for the benefit of the Supplier and the Supplier may waive it by giving written notice to the Customer at any time.
(k) Notwithstanding any other provision in this agreement, the Supplier may take any action it deems necessary including legal proceedings to recover as a liquidated debt any amount payable by the Customer under this agreement.
(l) The Customer grants to the Supplier a purchase money security interest (as defined in the PPS Law) in the Goods and any proceeds of sale of the Goods (“PMSI”) to secure the payment by the Customer to the Supplier of all monies owing by the Customer to the Supplier, on any account.
(m) The costs of registering a financing statement under the PPS Law will be paid by the Customer to the Supplier.
(n) The Customer must not do anything or permit anything to be done that may result in the PMSI granted to the Supplier ranking in priority behind any other security interest.
(o) The Customer must take all further steps and sign all further documents as may be required by the Supplier to further or better secure the Suppliers rights under this agreement and the security under the PPS Law in respect of the Goods or to maintain the effectiveness of or priority of the security interest under the PPSA.
(p) The Customer agrees that nothing in sections 125, 132(3)(d), 132(4), 135, 142 and 143 of the PPS Law shall apply to this agreement or the security under this agreement.
15. INTELLECTUAL PROPERTY RIGHTS
(a) The Customer indemnifies and agrees to keep indemnified the Supplier against all Losses incurred by the Supplier in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Customer to the Supplier.
(b) Unless specifically agreed in writing between the Supplier and the Customer, all Intellectual Property rights in any works created by the Supplier on behalf of the Customer vest in and remain the property of the Supplier.
(c) Subject to payment of all invoices due in respect of the Goods or Services, the Supplier grants to the Customer a perpetual, non-exclusive licence to use the works created or produced by the Supplier in connection with the provision of Goods or Services under these Terms and Conditions for the purposes contemplated by the Order.
(d) All photos provided by the Customer to the Supplier become the property of the Supplier and may be used by the Supplier for marketing and promotional purposes.
16. AGENCY AND ASSIGNMENT
(a) The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or form these Terms and Conditions provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under these Terms of Trade.
(b) The Customer is not to assign, or purport to assign, any of its obligations or rights under these Terms and Conditions without the prior written consent of the Supplier.
17. DEFAULT BY CUSTOMER
(a) Each of the following occurrences constitutes an event of default:
(i) the Customer breaches or is alleged to have breached these Terms and Conditions for any reason (including, but not limited to, defaulting on any payment due under these Terms of Trade) and fails to remedy that breach within 7 days of being giving notice by the Supplier to do so;
(ii) the Customer, being a natural person, commits an act of bankruptcy;
(iii) the Customer, being a corporation, is subject to:-
(a) a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
(b) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer’s property and undertaking;
(c) the entering of a scheme of arrangement (other than for the purpose of restructuring); and
(d) any assignment for the benefit of creditors;
(iv) the Customer purports to assign its rights under these Terms and
Conditions without the Supplier’s prior written consent;
(v) the Customer ceases or threatens to cease conduct of its business in the normal manner.
(b) Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:-
(i) terminate these Terms and Conditions;
(ii) terminate any or all Orders and credit arrangements (if any) with the Customer;
(iii) refuse to deliver Goods or provide further Services;
(iv) pursuant to clause 10(c), repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
(v) retain (where applicable) all money paid on account of Goods or Services or otherwise.
(c) In addition to any action permitted to be taken by the Supplier under paragraph (b), on the occurrence of an event of default all invoices will become immediately due and payable.
In addition to the express rights of termination provided in these Terms and Conditions, a party may terminate these Terms and Conditions by giving 30 days written notice to the other party.
19. EXCLUSIONS AND LIMITATION OF LIABILITY
(a) The Customer expressly agrees that use of the Goods and Services is at the Customer’s risk. To the full extent allowed by law, the Supplier’s liability for breach of any term implied into these Terms and Conditions by any law is excluded.
(b) All information, specifications and samples provided by the Supplier in relation to the Goods or Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Goods or Services will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.
(c) Except as set out in clause 18, the Supplier gives no warranty in relation to the Goods or Services provided or supplied. Under no circumstances is the Supplier or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods or Services including in their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:-
(i) any Goods or Services supplied to the Customer;
(ii) any delay in supply of the Goods or Services; or
(iii) any failure to supply the Goods or Services.
(d) Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods and/or Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
(e) To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, punitive, incidental, specific, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on Terms and Conditions, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.
(f) The Customer acknowledges that the Goods or Services are not for personal, domestic or household purposes.
(g) The Australian Consumer Law may give the Customer certain guarantees. Where liability for breach of any such guarantee can be limited, the Supplier’s liability (if any) arising from any breach of those guarantees is limited:
(i) with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods; or
(ii) with respect to Services to the supply of Services again or cost of resupplying the Services again.
(a) The Customer indemnifies and keeps indemnified the Supplier, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Supplier or, for which the Supplier is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these Terms and Conditions including, but not limited to any legal costs incurred by the Supplier in relation to meeting any claim or demand or any party/party legal costs for which the Supplier is liable in connection with any such claim or demand. This provision remains in force after the termination of these Terms and Conditions.
21. FORCE MAJEURE
(a) If circumstances beyond the Supplier’s control prevent or hinder its provision of the Goods or Services, the Supplier is free from any obligation to provide the Goods or Services while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
(b) Circumstances beyond the Supplier’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
22.1 General Conditions
(a) To activate and validate this warranty, the Customer must complete and return to the Supplier the Warranty Application Form and provide 10 good quality photos of the installed Goods within 60 days of receipt of the Goods. The Customer is not required to provide photos if the Supplier installs the Goods.
(b) All warranties in clause 18.1 and 18.2 are effective only from date of receipt of the Warranty Application Form and photos by the Supplier.
(c) All requirements in relation to cutting, welding, joining, drilling, fixing and finishing of the framework meet relevant Australian Standards.
(d) The Supplier reserves the right to repair or replace any item covered by this warranty.
(e) The Supplier warrants that the framework for the Goods will be free of defects for 10 years, subject to the terms of this clause 18. If the Supplier determines it will replace the item rather than repair the item, the Supplier will cover the replacement cost of those Shade Shed or Easy Shade framework Goods for a period of 10 years from date of dispatch from the Supplier’s premises, not including any freight, taxes, levies, installation or third party charges or other costs.
(f) The warranty in clause 18.1(e) lasts for 10 years, but shall diminish over the last five years. For the first five years from date of dispatch, the warranty will remain at 100% of the replacement costs. For the following five years, the warranty will diminish by 20% at the end of each year.
(g) After the expiration of the warranties in 18.1(e), the Supplier is not liable under this warranty to cover any costs relating in any way whatsoever to damage, repair or replacement of the Goods.
(h) Any parts repaired or replaced under this warranty are subsequently warranted only for the remaining unexpired warranty period applicable to the original Goods.
(i) This warranty will be void if the original units are not paid for in full.
(j) The warranty is void if any changes, modifications, additions, or attachments are made to the Goods without the written consent of the Supplier.
(k) This warranty does not cover rib mounted container mounts, as the condition of the container top cannot be guaranteed.
(l) If the Customer is using ground anchors as a hold down, it is the
Customer’s responsibility to ensure the soil is suitable.
(m) If the Shade Shed is container mounted, this warranty is void if any defect is caused by a failure of the container itself, including but not limited to:
– mounting points;
– hold down points;
– rust on container; and
– failure of steel on container.
(n) This warranty does not apply to defects or damage resulting from:
(i) Improper use or installation and/or use or installation not in strict
accordance with the Supplier’s instructions and specifications;
(ii) Improper or inadequate maintenance;
(iii) Unauthorised modification or alteration of the Goods;
(iv) Neglect, misuse or abuse of the Goods;
(v) Exposure to corrosive elements or incompatible Goods;
(vi) Wear and tear caused by multiple installations and dismantling;
(vii) Incorrect storage or handling;
(viii) Normal wear and tear;
(ix) Exposure to wind speeds exceeding the design rating;
(x) Damage arising from the failure of support components supplied by others;
(xi) Damage arising from the failure of support components such as posts, walls, existing buildings and shipping containers;
(xii) Damage arising from foundation or anchorage failure, unless the foundations or anchors are installed by the Supplier;
(xiii) Freak acts of nature;
(xiv) Damage caused by items or goods inside or near the Goods;
(xv) Explosions, sabotage, accident, embargoes, riots, civil commotions, terrorist activities, acts of war (whether declared or undeclared), and war (whether declared or undeclared);
(xvi) Vandalism or intentional damage, whether by the Customer, its associate or a third party;
(xvii) Rust if structure is installed on oceanfront (within 5km of ocean), or is constantly in water (e.g poolside).
(o) The Customer shall notify the Supplier in writing detailing any defects for which a warranty claim is being made. The Customer must:
(i) Submit a detailed Warranty Claim Form which must include:
(a) A detailed description of the alleged defect or damage
(b) The cause of the alleged defect or damage
(c) Three good quality detailed photos taken in accordance with this warranty
(d) Additional photos and close-up photos of the alleged defect or damage
(ii) Provide the Supplier with:
(a) Any information or detail relating to the warranty event requested by the Supplier
(b) Access to any property on which the Goods is situated
(c) Access to the Goods and any damaged or defective parts
(iii) Allow the Supplier to take and remove any damaged or defective Goods or part of Goods, to allow for further investigation and testing.
(iv) Cooperate with all reasonable requests from the Supplier.
(p) This warranty is given by the Supplier, whose details are:
(i) Name: QLD Shadeshelters Pty Ltd ABN 74 821 749 850
(ii) Business Address: 18-20 Industrial Place Yandina, QLD 4561
(iii) Phone Number: 07 5446 7611
(q) Despite clause 15(f), if for any reason the Australian Consumer Law applies to the supply of the Goods, the Supplier gives the following statement to the Customer:
“Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
(r) the benefits to the Customer given by this warranty are in addition to other rights and remedies of the consumer under a law in relation to the goods or services to which the warranty relates.
(a) The Goods have been designed to withstand a specific wind speed.
(b) The drawing supplied with the Goods specifies the region as complying with AS/NZS 1170.0:2002, AS/NZS 1170.1:2002, AS/NZS 1170.2:2002.
(c) The drawing supplied with the Goods covers steel size, connection details, footing sizes, reinforcement and cover attachment details. Other details could be specified in accordance with the design.
(d) Any claim in relation to engineering will require a full independent enquiry
at the Customer’s expense.
22.3 Manufacturer’s Warranty – Colorbond® Steel
(a) BlueScope Steel provide various warranties for Colorbond® steel products depending on location and environmental factors.
(b) For details and registration, visit http://colorbond.com/learn/articles/what-a-bluescope-steel-warranty-means-to-you.
(c) The Supplier does not warrant that any particular colour will be available for any period of time and reserves the right to discontinue any colour for any reason it may determine, without the recourse by the owner of the discontinued colour.
(d) The Supplier reserves the right, in cases where certain colours have been discontinued, to offer the Customer a choice of available colours to replace the discontinued colour of the original Goods
22.4 Manufacturer’s Warranty – Commercial 95 Shadecloth (Synthesis Advanced Polymer Fabrics)
(a) Commercial 95 Shadecloth is warranted for 10 years against UV degradation.
(b) This warranty is provided by the fabric manufacturer. Any claim made in respect of the Commercial 95 Shadecloth cover would require the fabric to be returned to the Supplier at the Customer’s expense.
(c) More information can be found at http://www.synthesisfabrics.com/
(d) The Supplier does not warrant that any particular colour will be available for any period of time and reserves the right to discontinue any colour for any reason it may determine, without the recourse by the Customer
(e) The Supplier reserves the right, in cases where certain colours have been discontinued, to offer the Customer a choice of available colours to replace the discontinued colour of the original Goods.
23. OTHER MATTERS
(a) These Terms and Conditions are governed by the laws of Queensland and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.
(b) These Terms and Conditions and any Quotes and written variations agreed to in writing by the Supplier represent the whole agreement between the parties relating to the subject matter of these terms.
(c) These Terms and Conditions supersede all oral and written negotiations and communications by and on behalf of either of the parties.
(d) In entering into these Terms and Conditions, the Customer has not relied on any warranty, representation, or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these Terms and Conditions.
(e) If any provision of these Terms and Conditions at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
(f) A party’s failure or delay to exercise a power or right does not operate as a
waiver of that power or right.
(g) A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to these paragraph) and delivered personally, sent by pre-paid mail to the address of the address specified in the relevant Quote; sent by facsimile transmission to the facsimile number of the addressee specified in the relevant Quote, with acknowledgement of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
(h) A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by facsimile or email before 4pm one Business Day at the place of receipt, on the date it is sent and otherwise on the next Business Day at the place of receipt.
(i) A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.
Terms and Conditions of Trade