Terms & Conditions
NEWLANDS SHUTTERS & BLINDS PTY LTD (TRADING AS SECURITY PLUS)
TERMS AND CONDITIONS
- “The Company“ means Newlands Shutters & Blinds Pty Ltd (trading as Security Plus) ABN 68 856 189 781 and its successors and
- “Customer” shall mean a customer or any person or corporation acting on behalf of and with the authority of the Customer who has agreed to buy Goods and/or Services from the Company.
- “Guarantor” means that person (or persons) or entity who agrees herein to be liable for the debts of the Customer on a principal debtor basis.
- “Goods” shall mean Goods supplied by the Company to the Customer including inter alia, Goods which are the subject of an order placed with the Company by the Customer (and where the context so permits shall include any supply of Services as hereinafter defined).
- “Services” shall mean all services supplied by the Company to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply and installation of Goods as defined supra).
- “Price” shall mean the costs of the Goods as agreed between the Company and the Customer subject to clause 4 of this contract.
- “the Act” means the Competition & Consumer Act 2010;
- “Claim” means any claim, demand, action or proceeding;
- “Collateral” has the meaning given under the PPSA and in particular for the purposes of this Contract, the personal property that is not used predominately for personal, domestic or household purposes as identified in clause 7 hereof to which the Security Interest has attached;
- “Contract” means the contract between the Company and the Customer for or in relation to the sale and the purchase of Goods;
- “PPSA” means the Personal Property Securities Act 2009 as amended;
- “PPS Register” means the personal property securities register established under section 146 of the PPSA;
- “Security Interest” has the meaning given under the PPSA;
- Words importing the singular number shall be deemed to include the plural and vice versa. Words importing the male gender shall be deemed to include the female and neuter gender and vice versa; and
- The headings in these terms and conditions are provided for convenience only and do not affect the interpretation thereof.
- Any instructions received by the Company from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
- Where more than one Customer has entered into this agreement, the Customer’s shall be jointly and severally liable for payments of the Price.
- Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Company.
- The terms and conditions contained herein and any warranties implied by law which are not capable of being excluded or modified embody the whole agreement between the parties.
- The Customer undertakes to give the Company not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to changes in the Customer’s address, facsimile number or business practice).
- The Goods are as described on the invoice(s), quotation, work authorisation or any other work commencement forms as provided by the Company to the Customer.
- Price and Payment
- At the Company’s sole discretion:
- the Price shall be as indicated on invoices provided by the Company to the Customer in respect of Goods supplied; or
- the Price of the Goods shall (subject to clause 4.2) be the Company’s quoted Price which shall be binding upon the Company provided that the Customer shall accept in writing the Company’s quotation within thirty (30) days.
- Any variation from the plan of scheduled works or specification will be charged for on the basis of the Company’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
- At the Company’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
- Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of Goods.
- The Company may withhold delivery of the Goods until the Customer has paid for them, in which event payment shall be made before the delivery date.
- Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and the Company.
- The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that any such GST and other taxes are expressly included in any quotation given by the Company.
- At the Company’s sole discretion:
- Delivery of Goods/Services
- Delivery of the Goods shall be made to the Customer’s address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Company’s address.
- Delivery of the Goods to a carrier, either named by the Customer or failing such naming to a carrier at the discretion of the Company for the purposes of transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.
- The failure of the Company to deliver shall not entitle either party to treat this Contract as repudiated.
- The Company shall not be liable for any loss or damage whatever due to failure by the Company to deliver the Goods (or any of them) promptly or at all.
- Risk and Title
- Except as otherwise provided herein, the Goods supplied by the Company to the Customer shall be at the Customer’s sole risk immediately on their delivery to the Customer and installation at the Customer’s property.
- It is the intention of the Company and agreed by the Customer that property in the Goods shall not pass until:
- the Customer has paid all the amounts owing for the particular Goods; and
- the Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer and that the Goods shall be kept separate until the Company shall have received payment and all other obligations of the Customer are met.
- Subject to the PPSA, it is further agreed that:
- Until such time as ownership of the Goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease.
- b) If the Customer fails to return the Goods to the Company then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
- c) The Customer is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Company.
- d) The Customer shall not deal with the proceeds from any such sale or disposal of the Goods of the Company in any way which may be adverse to the Company.
- e) Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s ownership of rights in respect of the Goods shall continue.
- f) The Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company.
- g) The Company may require payment of the Price or the balance of the Price due together with any other amounts due from the Customer to the Company arising out of these terms and conditions, and the Company may take any lawful steps to require payment of the amounts due and the Price.
- h) The Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.
- Personal Property Securities Act 2009
7.1 The terms “Collateral”, “Debtor”, “Financing Change Statement”, “Financing Statement”, “Grantor”, “Proceeds”, “Secured Party”, “Security Agreement” and “Security Interest” have the meanings given in the PPSA.
7.2 The Customer acknowledges and agrees that by accepting these terms and conditions which form part of the Contract and constitute a Security Agreement that covers the Collateral for the purposes of the PPSA:
- the Company holds (as Secured Party) a Security Interest over all of the present and after acquired Goods supplied by the Company to the Customer and any Proceeds of the sale of those Goods (“Collateral”);
- that any purchase by the Customer on credit terms from the Company or retention of title supply pursuant to 6 hereof will constitute a purchase money security interest as defined under section 14 of the PPSM (“PMSI”);
- the PMSI granted herein will continue to apply to any Goods coming into existence or proceeds of sale of Goods coming into existence;
- the Company will continue to hold a Security Interest in the Goods in accordance with and subject to the PPSA, notwithstanding that the Goods may be processed, commingled or become an accession with other Goods;
- any Company Security Interest will be a continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all registered or unregistered Security Interest;
- until title in the Goods pass to the Customer, it will keep all Goods supplied by the Company free and ensure all such Goods are kept free of any charge, lien or Security Interest and not otherwise deal with the Goods in a way that will or may prejudice any rights of the Company under the Contract or the PPSA; and
- in addition to any other rights under these terms and conditions or otherwise arising, the Company may exercise any and all remedies afforded to it as a Secured Party under Chapter 4 of the PPSA including, without limitation, entry into any building or premises owned, occupied or used by the Customer, to search for and seize, dispose of or retain those Goods in respect to which the Customer has granted a Security Interest to the Company.
7.3 The Customer undertakes to:
- sign any further documents and provide such information which the Company may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPS Register;
- indemnify and upon demand reimburse the Company for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPS Register or releasing any Security Interests;
- not register or permit to be registered a Financing Change Statement in the Collateral without the prior written consent of the Company; and
- provide the Company not less than seven (7) days prior written notice of any proposed change in the Customer’s name, address, contact numbers, business practice or such other change in the Customer’s details registered on the PPS Register to enable the Company to register a Financing Change Statement if required.
7.4 The Company and the Customer agree that sections 96, 125 and 132(3)(d), 132(4) and 134(1) of the PPSA do not apply to the Security Agreement created under this Contract.
7.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4) and 135 of the PPSA.
7.6 The Customer waives its rights as a Grantor and/or a Debtor under sections 142 and 143 of the PPSA.
7.7 Unless otherwise agreed in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
7.8 The Customer shall unconditionally ratify any actions taken by the Company under this clause 7.
7.9 This clause 7 will survive the termination of the Contract to the extent permitted by the law.
- Customer’s Disclaimer
8.1 The Customer hereby disclaims any right to rescind or cancel the Contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Company and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Company shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the manufacturer which warranty shall be personal to the Customer and shall not be transferable to any subsequent customer.
9.1 The Customer shall inspect the Goods on delivery and shall within two (2) days of delivery notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
9.2 For defective Goods, which the Company has agreed in writing that the Customer is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Goods or repairing the Goods provided that:
- the Customer has complied with the provision of clause 9.1;
- the Goods are returned at the Customer’s cost within seven (7) days of the delivery date;
- the Company will not be liable for Goods which have not been stored or used in a proper manner;
- the Goods are returned in the condition in which they were delivered and with all, brochures and instruction material in as new condition as is reasonable possible in the circumstances.
9.3 The Company may (in its discretion) accept the Goods for credit but this may incur a handling fee of 20% of the value of the returned Goods plus any freight.
10.1 For Goods not manufactured by the Company, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Company shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
10.2 The conditions applicable to the warranty given on Goods/Services supplied by the Company are contained on the “Warranty Card” that will be supplied with the Goods/Services.
10.3 The Customer releases and indemnifies the Company and its officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with the Customer and whether at common law, under tort (including negligence), in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness, cost or damage arising out of any breach by the Customer of any warranty or undertaking provided by it under these terms and conditions.
- The Competition and Consumer Act 2010 (Act)
11.1 Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Act, except to the extent permitted by the Act where applicable.
- Intellectual Property
12.1 Where any designs or specification have been supplied by the Customer for manufacture by or to the order of the Company then the Customer warrants that the use of those designs or specification for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
- Default & Consequences of Default
13.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month or part thereof and shall accrue at such a rate after as well as before any judgement and the Customer shall be liable for, and expressly undertakes to pay, all such interest.
13.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all the Company’s costs and disbursements including on a solicitor and own client basis and in addition all of the Company’s nominees costs of collection.
13.3 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and condition. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company exercised its rights under this clause.
13.4 If any account remains unpaid at the end of the second month after supply of the Goods or services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fee which sum shall become immediately due and payable.
13.5 In the event that:
- any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to meet its payments as they fall due; or
- the Customer becomes insolvent, convenes a meeting with its creditors or proposes or entered into an arrangements with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer,
then without prejudice to the Company’s other remedies at law:
- the Company shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
- all amounts owing to the Company shall, whether or not due for payment immediately become payable.
14.1 Goods and Services Tax (GST
Goods and Services Tax (GST) will be charged on those products, Goods or Services that attract GST at the applicable rate.
15.1 The Company may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Company shall not be liable for any loss or damage whatever arising from such cancellation.
- Privacy Act 1988
16.1 The Customer and/or the Guarantor/s agrees for the Company to obtain from a credit-reporting agency a credit report containing personal credit information about the Customer and the Guarantor/s in relation to credit provided by the Company.
16.2 The Customer and/or the Guarantor/s agreed that the Company may exchange information about Customer and Guarantor/s with those credit providers named in the Application for Credit account or names in a consumer credit report issued by a reporting agency for the following purposes:
- to access an application by the Customer;
- to notify other credit providers of a default by the Customer;
- to exchange information with other credit provides as to the status of this credit amount, where the Customer is in default with other credit providers; and
- to assess the credit worthiness of Customer and/or Guarantor/s.
16.3 The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Customer agrees that Personal Data provided may be used and retained by the Company for the following purposes and for other purposes as shall be agreed between the Customer and The Company or required by law from time to time:
- provision of Services & Goods;
- marketing of Services and/or Goods by the Company. Its agents or distributions in relation to the Services and Goods;
- analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Services/Goods;
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and
- enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services and Goods.
16.5 The Company may give information about the Customer to a credit reporting agency for the following purposes:
- to obtain a consumer credit report about the Customer; and/or
- to allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
- Unpaid Company’s Right to Dispose of Goods
17.1 Subject to the PPSA, in the event that:
- the Company retains possession or control of the Goods; and
- payment of the Price is due to the Company; and
- the Company has made demand in writing of the Customer for payment of the Price in terms of this Contract; and
- the Company has not received the Price of the Goods,
then, whether the property in the Goods has passed to the Customer or has remained with the Company, the Company may dispose of the Goods and may claim from the Customer the loss to the Company on such disposal.
18.1 If any provision of these terms and condition shall be invalid, void or illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 All Goods supplied by the Company are subject to the laws of Victoria and the Company takes no responsibility for changes in the law which affect the Goods supplied.
18.3 The Company shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of these terms and conditions.
18.4 In the event of any breach of this contract by the Company the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Company exceed the Price of the Services.
18.5 The Customer shall not set off against the Price amounts due from the Company.
18.6 The Company may licence or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.7 The Company reserves the right to review these terms and conditions at any time and from time to time. If following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Company notifies the Customer of such change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.