Standard Trading Terms
CUSTOMER ORDERS ARE ACCEPTED ONLY ON FULL AGREEMENT OF THE FOLLOWING TERMS AND CONDITIONS:
1 DEFINITIONS
Where the context permits:
Buyer means the person making an Order, pursuant to clause 2.1.
Conditions means these general conditions and any other condition agreed in writing by Shade Australia and the Buyer.
Contract means the agreement formed by the offer constituted by the Order and the acceptance of the Order by Shade Australia.
Contract Price means the price for Goods and/or Services specified in the Contract (including GST), including all matters that could reasonably be expected to be necessary to provide the Goods and/or Services.
Document includes letter, facsimile and email transmission.
Federal law means the laws of the Commonwealth of Australia.
Goods means the goods, equipment and other material agreed to be sold and purchased pursuant to the Contract and includes, but is not limited to, shades and umbrellas and shadecloth.
Intellectual Property Right includes any patent, design, copyright, or right of any nature in respect of ideas, concepts, inventions, methods of manufacture or any process.
Order means the order by the Buyer, made pursuant to clause 2.1.
Person includes body corporate and unincorporated association.
Quotation means a written quotation by Shade Australia to sell Goods and/or to provide Services. All quotations assume unfettered site access, favourable sub-soil conditions and provision by the Buyer to Shade Australia of all necessary site and utility service plans reasonably required by Shade Australia prior to the provision of Services.
Services means any services, with respect to the installation of the Goods, agreed to be provided by Shade Australia and paid for by the Buyer pursuant to the Contract.
State law means the law of New South Wales and any other State or Territory of Australia which is applicable to the Contract. Shade Australia means Shade Australia Pty Limited ABN 86 065 663 676.
2 ORDERS AND ACCEPTANCES
2.1 A quotation is a revocable offer by Shade Australia to sell the Goods and/or to provide the Services on the terms of the quotation. Shade Australia reserves the right to revoke or revise the quotation at any time before the Buyer makes an Order. Buyers may make an Order by:
(a) partial or complete payment to Shade Australia of the Contract Price;
(b) signing a quotation and returning it to Shade Australia; or
(c) by any other method accepted by Shade Australia including internet and email acceptances.
2.2 Shade Australia must sell and deliver the Goods and/or provide the Services to the Buyer and the Buyer must buy and pay for the Goods and/or Services from Shade Australia, pursuant to the Contract.
2.3 The Buyer must pay all applicable goods and services taxes, industry levies and other taxes, duties and imposts in respect of the sale or delivery of the Goods (whether in Australia or any other jurisdiction).
3 PAYMENT
3.1 The Buyer must pay the Contract Price, pursuant to the terms of payment specified in the quotation. If the quotation does not specify terms of payment, the Buyer must pay the Contract Price on receipt of the Goods and completion of the Services.
3.2 All custom-made or made-to-order goods require part-payment in advance by the Buyer to the rate as stated in the quotation with balance payable in full upon despatch or immediately upon delivery or installation. Should the Buyer wish to cancel an order after manufacture has commenced they will forfeit their initial payment.
3.3 Should the Buyer wish to return a made-to-order item they must notify Shade Australia with 48 hours of reciept of the said item(s). Assuming the item(s) are returned within 7 days in as new condition Shade Australia may at its discretion accept return of the item but will charge a restocking fee of 20% of the value of the purchase price of the item(s).
3.4 If the Buyer does not pay Shade Australia on the due date for payment or breaches any term or condition of the Contract or a resolution is passed or proposed or an application is presented for the winding up of the Buyer, or an administrator, receiver and/or manager is appointed in respect of the Buyer or the Buyer is or becomes (or is taken by any law to be) insolvent or makes or proposes to make any arrangement with its creditors or execution is levied on any part of the Buyer’s assets, Shade Australia may (at its option and with or without notice to the Buyer) do any or all of the following without prejudice to any other rights Shade Australia has under the Contract:
(a) withhold deliveries of the Goods (whether or not in transit) and/or provision of Services;
(b) immediately recover possession of and/or resell any Goods, title to which is retained pursuant to clause 5.1, or other goods held by the Buyer on trust for Shade Australia pursuant to clause 5.2 and for this purpose enter on the Buyer’s premises or any other place where the Goods or other goods may be situated; and
(c) terminate the Contract and/or any other contracts between Shade Australia and the Buyer.
3.5 The Buyer must, on demand by Shade Australia, pay to Shade Australia default interest at the rate of [15]% per annum on any moneys due but unpaid. Interest is calculated on a daily basis from the due date for payment until the actual date of payment and compounds on the last day of each month.
4 DELIVERY AND INSTALLATION
4.1 Unless otherwise agreed to by the parties in writing:
(a) delivery of the Goods and/or provision of the Services is deemed to be effected in the manner specified in the Contract;
(b) if not specified in the Contract, delivery of the Goods and/or provision of the Services may be effected in the manner chosen by Shade Australia;
(c) Shade Australia's responsibility for delivery and/or provision ceases when the Goods and/or Services are delivered and/or provided in the manner contemplated by clauses 4.1(a) or (b) (as applicable).
(d) Unless agreed prior to despatch, Shade Australia is not liable for goods lost or damaged in transit. Transit insurance is the responsibility of the Buyer. Should the Buyer wish to take-out transit insurance they should advise Shade Australia prior to despatch. Additional charges may apply.
4.2 Risk in the Goods passes to the Buyer on delivery or on deemed delivery of the Goods as provided in the Contract, even though title remains in Shade Australia.
4.3 The Buyer or its representative or agent must sign the delivery advice presented by Shade Australia or its representative or agent. If the Buyer or its representative or agent is unavailable to sign or does not sign the delivery advice, Shade Australia’s records are conclusive evidence of delivery at the time and place shown in Shade Australia’s records.
4.4 When the Goods are to be delivered by instalments, each instalment is deemed to be sold under a separate Contract. If Shade Australia fails to deliver an instalment within the time stated on the Contract or to deliver at all, the Buyer is not entitled to repudiate the Contract in respect of any other instalments remaining to be delivered.
4.5 Installation of all product is carried out by subcontractors unless otherwise advised. In the event of a warranty or maintenance claim resulting from any aspect of installation Shade Australia will coordinate resolution, however, responsibility lies with the subcontractor.
4.6 Services are complete when provided in accordance with the Contract and the engineering certificate (if required by the Contract).
4.7 The Services may require revision without notice to the Buyer if, during the provision of the Services, assumptions in the quotation prove incorrect or the Buyer fails to fulfil its warranties under clause 8. The Buyer is liable to pay Shade Australia for additional Services provided at Shade Australia’s standard hourly rate.
5 TITLE
5.1 Legal and beneficial title in the Goods remains in Shade Australia until payment in full for the Goods has been received by Shade Australia in immediately available funds.
5.2 Until payment in full for the Goods is received by Shade Australia;
(a) the Buyer must hold the Goods on trust for Shade Australia;
(b) if the Buyer sells the Goods, the Buyer must hold its rights in respect of the sale proceeds on trust for Shade Australia; and
(c) Shade Australia constitutes a separate class of the Buyer’s creditors for all purposes.
6 INTELLECTUAL PROPERTY
6.1 The Buyer does not obtain any rights in any intellectual property right used by Shade Australia in manufacturing the Goods and/or providing the Services.
MAINTENANCE & MANAGEMENT
7 Unless Shade Australia provides the quotation to the Buyer with an engineering certificate that provides otherwise, all Goods installed must be considered for temporary-use or semi-permanent in nature and should be lowered or removed from installation in high winds or severe weather conditions to prevent damage to the Goods or existing structures and to prevent personal injury.
8 The buyer waives any claims against Shade Australia if they do not follow clause 7 and use the Goods in an environment where strong winds can occur, and the Goods have not been lowered secured or removed as appropriate. The Buyer accepts full responsibility for management and maintenance of the goods as well as the suitability of the location which they use the Goods. Shade Australia takes no responsibility for any damage resulting in improper use of the Goods or when the Goods are not managed according to Clause 7.
9 Any failure to do so invalidates any warranty provided to the Buyer pursuant to clause 10 and limits any liability of Shade Australia to the Buyer and any other person.
10 BUYER WARRANTY
10.1 The Buyer warrants that:
(a) it has obtained all necessary engineering certification, consents, permits, licences and utility service plans necessary for Shade Australia to deliver the Goods and/or provide the Services in the manner contemplated by clauses 4.1(a) or (b) (as applicable);
(b) it has provided to Shade Australia with complete and correct underground utility service plans relevant to provision of the Services; and
(c) it has undertaken a proper assessment, including seeking independent professional advice, of the suitability of the location, the surfaces and/or existing structures to which the Goods may be affixed.
10.2 The Buyer acknowledges that:
(a) Shade Australia relies on the warranties in clause 8.1;
(b) Shade Australia is not liable for any damage, loss or expense, whether direct or indirect, arising out of provision of the Goods or Services, where the Buyer breaches any warranties in clause 8.1; and
(c) it indemnifies Shade Australia for any claims arising out of provision of the Goods or Services, where the Buyer breaches any warranties in clause 8.1
10.3 Shade Australia can assist the Buyer to fulfil its requirements under clause 8, however additional charges will apply.
11 SHADE AUSTRALIA WARRANTY & RETURNS
11.1 Shade Australia extends to its customers the manufacturers/importers warranties on its range of products. In the event of a valid warranty claim it is incumbent upon the customer to organise at their cost to ship the goods to Shade Australias premises (or other nominated address) whereupon Shade Australia will organise the goods to be repaired or at the manufacturer/importers discretion, replaced and returned to the customer. Some Federal laws and State laws imply terms and conditions into the Contract that are incapable of exclusion. All terms and conditions that are capable of exclusion and that are not expressly contained in the Contract are expressly excluded from the Contract. Shade Australia warrants that:
(a) on payment in full it will give good title in the Goods to the Buyer;
(b) on delivery, the Goods will be free from defects in material and workmanship which make the Goods of unmerchantable quality as that term is construed by suppliers of goods of their description;
(c) on delivery, the Goods will conform to the description in the quotation;
(d) the Services will be provided in a proper and workmanlike manner, pursuant to the quotation; and
(e) it will comply with all applicable laws and standards and the requirements of all statutory authorities relating to provision of the Goods and/or Services,
PROVIDED THAT this warranty does not apply if:
(f) the Goods are incorrectly used or are abused in use including, failure to lower or remove the Goods from installation in high winds or severe weather; and
(g) The Buyer carries out the installation of the item themselves which voids any warranty
which would have extended should Shade Australia contractors have carried out the installation. Furthermore, this exemption extends to any resultant damage to either the item(s) itself, surrounding property or injury to any person(s) which may result.
(h) Warranty claims are voided if products are used in a manner contrary to manufacturers/importers stated terms of guarantee or are modified or altered in any way
(i) Shade Australia is providing the Services pursuant to an engineering certificate issued by a third party to the Buyer or Shade Australia and the Goods and/or Services comply with the specifications in the engineering certificate.
11.2 Warranty does not extend to product or property damaged as a result of unusually severe weather conditions including; hail-storms, snow-storms, strong winds and heavy rain.
11.3 This warranty expires in respect of all defects appearing in the Goods 3 months or more after delivery of the Goods unless otherwise specifically stated. Shade Australia is not liable for the costs of return or redelivery of Goods. Shade Australia is not liable for costs associated with dismantling and/or re-installation which will be charged to the customer at standard rates.
11.4 If the Buyer claims that any of the Goods and/or Services do not conform to the description shown in the Contract, have been short delivered or are defective or there is a breach of any term or condition of the Contract in respect of the Goods and/or Services:
(a) the Buyer must give written notice to Shade Australia within 7 days after delivery of the Goods and/or provision of the Services and preserve the Goods intact and available for inspection by Shade Australia’s representatives;
(b) if the claims of the Buyer are correct and either the Goods and/or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption or the Buyer is not a consumer as that term is defined in the Trade Practices Act or any corresponding and applicable State laws, the remedies of the Buyer are limited to such of the following as Shade Australia may elect in its absolute discretion:
(i) replacement of the Goods or supply of goods equivalent to the Goods; or
(ii) payment of the cost of replacing the Goods, and
(iii) providing the Services again; and
(c) Shade Australia will not be obliged to accept return of the Goods unless required by the Contract or under Federal law or State law.
11.5 Shade Australia is not liable for any consequential, special or contingent damages, losses or expenses in connection with Shade Australia’s failure to perform any obligation under the Contract or use of the Goods unless such damages, losses or expenses are incapable of exclusion under Federal or State law.
11.6 Items returned by customers must be returned within 30 days of purchase and must be in brand new condition. Goods which have been marked, used or returned with damaged packading will not be accepted as returns.
12 MISCELLANEOUS
12.1 Shade Australia is not liable for any failure to perform or comply with any term or condition of the Contract if that failure arises from any circumstances beyond Shade Australia’s reasonable control, including, without limitation, assumptions in the quotation, lockouts, strikes and other labour disturbances (the settlement of which is at Shade Australia’s absolute discretion if it is a party), acts of God or the public enemy, piracy, war, terrorism, riot, civil commotion, acts of government agencies, earthquake, storm, tempest, fire, lightning, unavailability of insurance at reasonable cost and non-delivery of materials from Shade Australia’s usual sources of supply.
12.2 The Contract is governed by the laws of NSW,Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales.
12.3 A waiver by Shade Australia of any provision or breach by the Buyer of any provision of the Contract cannot be construed as a waiver of any other provision or breach of any other provision or subsequent breach of the same or any other provision of the Contract.
12.4 Errors in Contracts or Invoices must be corrected and necessary adjustments made between parties.
12.5 Should any provision of the Contract be or become unenforceable or void in any jurisdiction either in whole or part for any reason, that provision is deemed to be deleted from the Contract in respect of that jurisdiction alone without in any way affecting the validity or enforceability of any other provision or that provision in any other jurisdiction. In such circumstances, Shade Australia may substitute another place for performance of its obligations for the purpose of making the Contract valid and enforceable.
12.6 Any obligation imposed on more than one person, binds all combinations of them jointly and each of them severally.
12.7 The Contract is not a sale by sample, even if materials or things are exhibited or inspected by the Buyer.
12.8 No party will be obliged to agree to any form of arbitration of any dispute in connection with the Contract.
12.9 The Conditions and Contract cannot be varied unless agreed in writing by every party.