In these Trading Terms:
“Associate” has the same meaning as it does in the Income Tax Assessment Act 1997.
“Company” means Parker Black and Forrest Pty Ltd ABN 99 658 876 458.
“Credit Account” exists where a Customer has submitted a credit account application and that application has been approved by the Company at its sole discretion.
“Customer” means the purchaser of the Products.
“Default Rate” means interest at a rate of 12% p.a.
“Excluded Loss” means:
- In the case of loss or damage resulting from a breach of contract (including any contractual duty of care) loss of revenue, loss of profit, loss or denial of opportunity, loss of access to markets, loss of goodwill, loss of business reputation, loss arising from late delivery or failure to deliver goods, loss arising from any business interruption, increased overhead costs and any indirect, remote or unforeseeable loss occasioned by that breach, whether or not in the reasonable contemplation of the Company and the Customer at the time of the quotation, sales invoice or any delivery of goods as being a probable result of the relevant breach; and
- in the case of loss or damage arising from any tort (including negligence) which does not also constitute a breach of contract – indirect, remote or unforeseeable loss and, in the case of pure economic loss, loss not flowing directly from the commission of the tort.
“Good Standing” for a Credit Account means, that the account is current with no amounts past due and within the limits approved for that Credit Account.
“GST” means the goods and services tax payable under A New Tax System (Goods and Services Tax) Act 1999.
“Installation Works” means the installation, service or maintenance of the Products, either supplied by the Company or by others.
“Order” means a request from the Customer to the Company to supply the Products.
“Products” means the architectural hardware, if any, specified in any Order, including (without limitation) locks, keys, master keys, door handles, door closers, washroom equipment and sanitary equipment.
“Property” means the site or location of the Installation Works.
“Terms” means the trading terms and conditions set out in this document and any imposed by law which cannot be excluded.
- Any special conditions specified on a Quotation or Sales Invoice shall, to the extent they are inconsistent with these terms and conditions, take precedence over these terms and conditions.
- If a provision of these Terms would, but for this clause, be unenforceable:
- the provision must be read down to the extent necessary to avoid the result; and
- if the provision cannot be read down to that extent, it shall be severed without effecting the validity and enforceability of the remaining provisions of the Terms.
- These are the only terms and conditions which are binding upon the Company with the exception of those otherwise agreed in writing by the Company, or those which are imposed by a statute and which cannot be excluded. The Company will NOT be bound by any conditions attaching to the Customer’s order or acceptance of a quotation (notwithstanding any statement by the Customer in its purchase order that its terms and conditions prevail over these Terms and Conditions or any other item contained within the quotation, and, unless such conditions are expressly accepted by the Company in writing, the Customer acknowledges that such conditions are expressly negatived.
3. QUOTATIONS, ORDERS AND PRICES
- Unless previously withdrawn, a quotation is valid for 30 days or such other period as stated within. A quotation is not to be construed as an obligation to sell but merely an invitation to treat and no contractual relationship shall arise from it until the Customer’s order has been accepted in writing by the Company.
- All prices the Company quotes are GST exclusive, unless it states otherwise. Where the Customer accepts the quotation, then GST must be added to the quoted price paid by the Customer.
- It is the Customer’s responsibility to provide all information necessary to enable performance of the Order and the Customer shall be responsible for any costs arising directly or indirectly from any error or omission in that information or delay in providing that information.
- If the Customer cancels or alters any Order or part of an Order, at any time after the Company has received the Order, then (without prejudice to any other rights the Company has against the Customer) the Company reserves the right to charge the Customer for any costs or extra expenses incurred by the Company as a result of the cancellation.
The Customer shall pay the amount payable for the Products or Installation Works as set out in the respective invoice prior to collection or delivery of those Products or Installation Works.
Where the Customer holds a Credit Account and the Customer’s Credit Account is in good standing and the Company provides Products or Installation Works on Credit to the Customer, then the Customer must pay the amount payable for the Products or Installation Works within 30 days of the end of the month in which the invoice is issued, and:
- The Company is entitled to issue invoices for all Products or Installation Works delivered during a particular month, and the Customer will not be entitled to refuse to pay an invoice of the Company on the grounds that an Order has not been completely delivered.
- If the Customer retains possession and or control of the Products then, the Customer shall pay the full amount invoiced.
- In the event that the Customer fails to make payment on the due date to the Company of any invoice, or the Company reasonably suspects that the Customer is in breach of these terms and conditions, then:
- the Company shall be entitled to cease supply, production, delivery as the case may be of the Products or Installation Works to the Customer; cease to perform any of its obligations to the Customer; and retake possession of the Products pursuant to Clause 8 of these Terms; and
- the Customer must: immediately pay to the Company all amounts due and payable to the Company, and interest calculated from the date on which the default arose at the Default Rate on all amounts owing by the Customer to the Company; and pay any expenses and costs incurred by the Company in enforcing the Terms including, without limitation, legal costs calculated on a solicitor and client basis as a consequence of the Company instructing its solicitor to provide advice in connection with the default, and all debt collection costs incurred by the Company.
5. DELIVERY AND RISK
- The delivery times advised by the Company of the Products and Installation Works shall be estimates of time only.
- The Company shall not be liable for late delivery or non-delivery of Products or Installation Works and under no circumstance shall the Company be liable for any loss, damage or delay occasioned to the Customer arising from late or non-delivery of the Products or Installation Works, including but not limited to where the late delivery or non-delivery is caused by or contributed to by the negligence of the Company, its contractors or agents.
- The Customer shall bear all risk of loss or damage of the Products upon the delivery of the Products at the Customers direction.
- The Customer shall be responsible for insuring Products against loss or damage from the time of delivery.
- Where delivery is included within a quotation, being either free or at a cost, such delivery is limited to the boundary of the Perth Metropolitan area (unless stated otherwise).
- It is the Customer’s obligation to inspect the Products at the time of collection or delivery (as applicable) and within 7 days of that date of collection / delivery (as applicable) notify in writing the Company of any damage or defect in the Products or if the Products do not match the stated description on the Order.
6. CANCELLATION, VARIATION AND RETURNS
- The Company will generally accept cancellation of an order where:
- The product is a stocked item; and
- Written advice of the cancellation is issued prior to despatch.
- Cancellation of orders for Products which have been custom made, custom cut, custom processed or custom acquired or made specifically to suit Customer specifications (“Made to Order”), Products not in our standard price list or usually held in stock (“Specials”), and large quantity orders of Products (“Project Lots”), will result in the charging of all relevant costs to the Customer’s account.
- Customer requests for a variation to an order must be documented in writing and are subject to the Company’s prior written approval.
- The Customer warrants and acknowledges that unless it notifies the Company as provided in sub-clause 5(f), the Customer shall be deemed to have accepted the Products.
- The Company will always endeavour to accept returns in order to offer the best service. However, except in the case of defective Products standard stocked items will only be accepted for return with our prior agreement, and only if the Products and packaging are in original condition, and free from damage and blemishes, and no more than 3 weeks have passed since the delivery or collection date.
- Subject to clause 6, the Customer is not entitled to any credit for returns of Products unless the Company, in its absolute discretion, issues a credit note to the Customer.
- The Customer acknowledges that a restocking fee of 25% of the original purchase price may be deducted from the credit note at the Company’s absolute discretion.
- Products that are Made to Order, or Specials or that are not normally held in stock are not returnable.
7. INSTALLATION WORKS
Where the Company is performing Installation Works:
- The Customer grants the Company permission to perform the Installation Works at the Property and the Customer agrees to provide all necessary and reasonable access to the Company to enable the Installation Works to occur and warrants:
- that it will provide such co-operation and assistance as the Company may reasonably request; and
- Will ensure that it’s employees or subcontractors will not cause delays to the Installation Works or otherwise prevent site access or unreasonably impede or delay the Installation Works. Where such delays occur, the Customer will be responsible for the payment of any costs associated with reattending site, or where access has been delayed, the applicable hourly rates for the time employees spend waiting for periods longer than 30 minutes.
- If the Customer is not the registered proprietor or occupier of the site/premises then the Customer must unless the Company otherwise agrees in writing, provide the Company with the consent of the registered proprietor or occupier to allow for the Installation Works to occur. In this instance, the Customer also warrants that it and the registered proprietor or occupier will comply with the terms of Subclause 7(a).
- Subject to prevention or delay by Force Majeure, the Company will endeavour to complete the Installation Works at the Property in accordance with any time requirements or estimates set out in the schedule or program.
- Any times, dates, periods, schedules or programs provided by the Company in respect of the Installation Works are estimates only.
- Where a quotation provided by the Company specifies or otherwise references particular site conditions or requires some preparatory works be completed by the Customer prior to the commencement of the Installation Works, then the Customer is responsible for ensuring that those particular site conditions exist and those preparatory works have been completed. Where this is not the case, additional costs and schedule delays may be incurred. The Company will provide written notice of these costs and any delays should this eventuate.
8. RETENTION OF TITLE – PROPERTY AND OWNERSHIP
- Notwithstanding that risk in the Products shall pass to the Customer as described in clause 5, title to the Products shall not pass to the Customer until the Customer pays in full all monies owing by the Customer or its Associate to the Company in respect of the Products whether such monies owing are due and payable now or in the future.
- Until such time as the title to the Products pass to the Customer pursuant to clause 8(a) above:
- the Customer shall store, identify, and keep separate the Products and shall ensure they clearly indicate that ownership of the Products is with the Company;
- the Customer acknowledges that subject to clause 4(c) of these Terms the Company reserves the right to enter the Customer’s premises (or the premises of any Associate where the Products are located) without liability for trespass or any resulting damage and retake possession of the Products;
- the Customer acknowledges that if the Products are repossessed by the Company pursuant to this clause 4, the Company reserves the right to keep or resell the Products; and
- In the event that the Customer uses the Products in some manufacturing or construction process of its own or some third party, then the Customer shall hold such part of the proceeds of such manufacturing or construction process as relates to the Products in trust for the Company. Such parts shall be deemed to be equal in dollar terms to the amount owing by the Customer to the Company at the time of the receipt of such proceeds.
9. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (“PPSA”)
- Unless the context requires otherwise, the terms and expressions used in this clause have the meanings given to them in, or by virtue of, the PPSA.
- The Customer hereby acknowledges that these Terms constitute a security agreement which creates a security interest in favour of the Company in 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) to secure the Customer’s payment obligations to the Company from time to time and at any time, including future advances. The Customer agrees to grant a “Purchase Money Security Interest” to the Company.
- The Customer undertakes to:
- give the Company not less than 14 days’ written notice of any proposed change in the Customer’s name and/or any other changes in the Customer’s details (including by not limited to changes in the Customer’s address, facsimile number, email address, trading name or business practice);
- be responsible for the full costs incurred by the Company (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA;
- give the Company free and immediate access to its premises or places within its control to enable the Company to enforce its Security Interests;
- procure, immediately upon request by the Company from any persons considered by the Company to be relevant to its security position, such agreement and waivers as the Company may at any time require; and
- waives any rights it may have under sections 115 of the PPSA upon enforcement.
- Pursuant to section 157 of the PPSA, unless otherwise agreed to in writing by the Company, the Customer waives the right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest.
- The Customer agrees that immediately on request by the Company the Customer will procure from any persons considered by the Company to be relevant to its security position such agreement and waivers as the Company may at any time require.
- Except where required by law, or these Terms, the Customer and the Company agree to treat these Terms, and any current or future concluded contract or purchase agreement as confidential and neither party will disclose, send or make available any of the information referred to in Section 275(1) of the PPSA.
- The Customer and the Company acknowledge and agree that Subclause 9(f) constitutes a confidentially agreement pursuant to Section 275(6) of the PPSA.
10. THE COMPANY’S WARRANTIES
- Subject to clause 4, the Company extends to the Customer the benefit of the warranty, if any, provided to the Company by its suppliers and manufacturers in relation to the respective Products supplied by the Company to the Customer pursuant to these Terms.
- The Company will not be responsible for any defect arising out of or in connection to:
- Misuse, abuse, neglect or failure to provide adequate protection from the elements during any period of storage;
- Alteration (improper or otherwise) or incorrect installation of the Products by the Customer or any person other than an employee or contractor of the Company; and
- The products not being maintained, installed in accordance with the manufacturer’s instructions or in the absence of such instructions, in accordance with generally accepted practice for the maintenance of such products, save for where the Company is responsible for said installation and maintenance.
- The Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law guarantee certain conditions, warranties and undertakings, and these conditions, warranties and undertakings may be implied into these Terms (“Non-excluded Terms”).
- Nothing in these Terms purports to modify or exclude the Non-Excluded Terms. Except as expressly set out in these Terms and the Australian Consumer Law, the Company makes no warranties or other representations under these Terms. The Company’s liability in respect of these warranties, representations, undertakings and guarantees is limited to the fullest extent permitted by law.
- To the extent permitted by law, the Company’s liability (if any) for breaching any Non-Excluded Term is limited to (at the option of the Company);
- the resupply of the Products; or
- the payment of the cost of resupplying the Products, or an equivalent product; or
- the repair of the product or the payment of the cost of having the Product repaired.
- Subject to this Clause, the Company shall not in any circumstances be liable to the Customer under or in connection with these Terms, or in negligence or any other tort or otherwise howsoever, as a result of any act or omission in the course of or in connection with the performance of these Terms, for or in respect of any Excluded loss.
11. INSTALLATION WARRANTY
In addition to the warranties provided at Clause 10 and where the Company has provided Installation works, then subject to Clause 10, the following will also apply:
- The Company warrants that any Products will be installed in accordance with all relevant Australian Standards, by an appropriately qualified and experienced installer. Where required, the installer will be duly licensed and/or registered.
- the installation of new products will be free from defects due to workmanship for 12 months from the date of those services.
- Service and repair works will be free from defects due to workmanship for 3 months from the date of those services.
- Installation warranty does not cover, normal wear and tear, accidental and or intentional damage, misuse or abuse.
- Where a valid warranty claim exists, the Company will in its discretion either repair or re-perform the installation or service or issue a refund for the value of the initial Installation Works, the subject of the warranty claim.
12. FORCE MAJEURE
The Company shall not be responsible for any delay or failure of performance occasioned or caused by strikes, riots, fire, insurrection, embargoes, failure or carriers, inability to obtain materials or transportation facilities, acts of God or of the public enemy, government tariffs and quotas, compliance with any law, regulation or other governmental or court order whether or not valid, or other causes beyond the control of the Company, irrespective of whether the cause could be alleviated by the payment of money, or the performance is prevented of delayed because of the failure of a supplier to The Company. Where this clause applies, the Company shall be under no liability whatsoever to the Customer and the Company shall be entitled, in its absolute discretion, to give notice to the Customer to either cancel the Order or extend the time for performance by the Company of its obligations.
- The Customer agrees to the Company collecting, using and disclosing information of the Customer for various purposes, including to:
- assess creditworthiness of the Customer credit assessment and in relation to the following;
- supply of the Products to the Customer and the management of the Customer’s account;
- communicate to the Customer about the Products which the Company or its Associates may provide to the Customer; and
- implement these Terms.
- The Company shall collect information in relation to the Customer in accordance with the laws relating to the collection and disclose of personal information under the Privacy Act 1988 as amended from time to time.
- These Terms may be altered by the Company after written notice of any change is given to the Customer.
- These Terms shall be governed by and construed in accordance with the laws of the Western Australia and these parties submit to the jurisdiction of the Courts of the Western Australia.
- No failure or delay by the Company in exercising any right, power or privilege to which it is entitled shall operate as a waiver, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise. These Terms and obligations and acknowledgments hereunder may only be waived or modified by the Company by an agreement in writing between the parties hereto.
- Clauses 8, 9, 10, 11 and 12 shall survive the termination or expiration of any purchase order, agreement of contract subject to these Terms.
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