Security365 Terms and Conditions
1.1 "Supplier" shall mean the franchisee and its successors and assignees.
1.2 "Customer" shall mean the Customer or any person acting on behalf of
and with the authority of the Customer.
1.3 "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.
1.4 "Goods"
shall mean Goods supplied by the Supplier to the Customer (and where the
context so permits shall include any supply of Services as hereinafter
defined).
1.5 "Services" shall mean all services supplied by the Supplier to the
Customer and includes any advice or recommendations (and where the context so
permits shall include any supply of Goods as defined supra).
1.6 "Price"
shall mean the cost of the Goods as agreed between the Supplier and the
Customer subject to clause 4 of this contract.
2. Acceptance
2.1 Any instructions
received by the Supplier from the Customer for the supply of Goods and/or the
Customer's acceptance of Goods supplied by the Supplier shall constitute
acceptance of the terms and conditions contained herein.
2.2 Where more than
one Customer has entered into this agreement, the Customer's shall be jointly
and severally liable for all payments of the Price.
2.3 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irrevocable and can only be rescinded in accordance with these terms and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 Supplier.
2.4 None of the
Supplier's agents or representatives are authorised to make any
representations, statements, conditions or agreements not expressed by the
manager of the Supplier in writing nor is the Supplier bound by any such
unauthorised statements.
2.5 The Customer
undertakes to give the Supplier 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).
3. Goods
3.1 The Goods are as
described on the invoices, quotation, work authorisation or any other work
commencement forms as provided by the Supplier to the Customer. The Supplier
reserves the right to alter specifications without notice.
4. Price And
Payment
4.1 At the Supplier's
sole discretion the Price shall be either;
(a) as indicated on
invoices provided by the Supplier to the Customer in respect of Goods supplied;
or
(b) the Supplier's
current Price, at the date of delivery of the Goods, according to the
Supplier's current Price list; or
(c) the Supplier's
quoted Price (subject to clause 4.2) which shall be binding upon the Supplier
provided that the Customer shall accept in writing the Supplier's quotation
within thirty (30) days.
4.2 Any variation from
the plan of scheduled works or specifications will be charged for on the basis
of the Supplier'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.
4.3 At the Supplier'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. Deposits are non-refundable.
4.4 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 the Goods.
4.5 At the Supplier's
sole discretion, for certain approved Customers payment will be due fourteen
(14) days following the date of the invoice.
4.6 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 Supplier.
4.7 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 such taxes are expressly included in any
quotation given by the Supplier.
5. Delivery Of
Goods / Services
5.1 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
Supplier's address.
5.2 Delivery of the
Goods to a carrier, either named by the Customer or failing such naming to a
carrier at the discretion of the Supplier for the purpose of transmission to
the Customer, is deemed to be a delivery of the Goods to the Customer.
5.3 The costs of
carriage and any insurance which the Customer reasonably directs the Supplier
to incur shall be reimbursed by the Customer (without any set-off or other
withholding whatever) and shall be due on the date for payment of the Price.
The carrier shall be deemed to be the Customer's agent.
5.4 The Supplier may
deliver the Goods by separate instalments (in accordance with the agreed
delivery schedule). Each separate instalment shall be invoiced and paid for in
accordance with the provisions in this contract of sale.
5.5 Delivery of the
Goods to a third party nominated by the Customer is deemed to be delivery to
the Customer for the purposes of this agreement.
5.6 The Customer shall
take delivery of the Goods tendered notwithstanding that the quantity so
delivered shall be either greater or less than the quantity purchased provided
that;
(a) such discrepancy
in quantity shall not exceed 5%, and
(b) the Price shall be
adjusted pro rata to the discrepancy.
5.7 The failure of the
Supplier to deliver shall not entitle either party to treat this contract as
repudiated.
5.8 The Supplier shall
not be liable for any loss or damage whatever due to failure by the Supplier to
deliver the Goods (or any of them) promptly or at all.
6. Risk
6.1 If the Supplier
retains property in the Goods nonetheless, all risk for the Goods passes to the
Customer on delivery.
6.2 If any of the
Goods are damaged or destroyed prior to property in them passing to the
Customer, the Supplier is entitled, without prejudice to any of its other
rights or remedies under these Terms and Conditions of Trade (including the
right to receive payment of the balance of the Price for the Goods), to receive
all insurance proceeds payable for the Goods. This applies whether or not the
Price has become payable under the Contract. The production of these terms and
conditions by the Supplier is sufficient evidence of the Supplier's rights to
receive the insurance proceeds without the need for any person dealing with the
Supplier to make further enquiries.
7. Customer's
Disclaimer
7.1 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 Supplier and the Customer acknowledges that
he buys the Goods relying solely upon his own skill and judgement and that the
Supplier 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.
8. Defects /
Returns
8.1 The Customer shall
inspect the Goods on delivery and shall within seven (7) days of delivery
notify the Supplier of any alleged defect, shortage in quantity, damage or
failure to comply with the description or quote. The Customer shall afford the
Supplier 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.
8.2 For defective
Goods, which the Supplier has agreed in writing that the Customer is entitled
to reject, the Supplier's liability is limited to either (at the Supplier's
discretion) replacing the Goods or repairing the Goods provided that:
(a) the Customer has
complied with the provisions of clause 8.1;
(b) the Goods are
returned at the Customer's cost within seven (7) days of the delivery date;
(c) the Supplier will
not be liable for Goods which have not been stored or used in a proper manner;
(d) the Goods are
returned in the condition in which they were delivered with all packaging
material.
9. Warranty
9.1 (a) The warranty on
all products is 12 months. The warranty
is five (5) years in respect of the installation of the Goods.
9.2 The conditions applicable
to the warranty given by Clause 9.1 are:
(a) The warranty shall
not cover any defect or damage which may be caused or partly caused by or arise
through:
i) Failure on the
part of the Customer to properly maintain any Goods as per the Product Maintenance
Section of the manufacturer’s website; or
ii) Failure on the
part of the Customer to follow any instructions or guidelines provided by the
Supplier as per the Product Maintenance Section of the manufacturer’s website;
or
iii) Any use of any
Goods otherwise than for any application specified on a quote or order form; or
iv) The continued use
of any Goods after any defect becomes apparent or would have become apparent to
a reasonably prudent operator or user; or
v) Fair wear and
tear, any accident, destruction by the elements, or act of God, or
vi) Installation or
repair of the Goods by an unauthorised party, or
vii) Tampering or
attempted break in
(b) The warranty shall
cease and the Supplier shall thereafter in no circumstances be liable under the
terms of the warranty if the workmanship is repaired, altered or overhauled
without the Supplier's consent.
(c) Some key systems
are restrictive. Please check with the Supplier prior to consulting independent
locksmiths.
(d) In respect of all
claims the Supplier shall not be liable to compensate the Customer for any
delay in either the supply of the replacement or repaired Goods or in properly
assessing the Customer's claim.
(e) This warranty is
limited to the supply only of the replacement or repaired faulty components or
materials
(f) This warranty is
not transferrable. It is provided to the original purchaser who must produce
the original sales invoice.
(g) This warranty
ensures that the goods are free from defects in workmanship and material under
conditions of normal use from the date of manufacture.
9.3 The warranty is
effective to goods purchased from the Supplier after 1 November 2010.
10. The Commonwealth
Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this
agreement is intended to have the effect of contracting out of any applicable
provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading
Acts in each of the States and Territories of Australia, except to the extent
permitted by those Acts where applicable.
11. Building and
Construction Industry Security of Payments Act 1999
11.1 At the Suppliers
sole discretion, if there are any disputes or claims for unpaid Goods and/or
Services then the provisions of the Building and Construction Industry Security
of Payments Act 1999 may apply.
11.2 Nothing in this
agreement is intended to have the affect of contracting out of any applicable
provisions of the Building and Construction Industry Security of Payments Act
1999 of New South Wales, except to the extent permitted by the Act where
applicable.
12. Default &
Consequences Of Default
12.1 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% compounding per calendar month and
shall accrue at such a rate after as well as before any judgement.
12.2 If the Customer defaults
in payment of any invoice when due, the Customer shall indemnify the Supplier
from and against all the Supplier's costs and disbursements including on a
solicitor and own client basis and in addition all of the Supplier's nominees
costs of collection.
12.3 Without prejudice
to any other remedies the Supplier may have, if at any time the Customer is in
breach of any obligation (including those relating to payment), the Supplier
may suspend or terminate the supply of Goods to the Customer and any of its
other obligations under the terms and conditions. The Supplier will not be
liable to the Customer for any loss or damage the Customer suffers because the
Supplier exercised its rights under this clause.
12.4 If any account
remains unpaid at the end of the second month after supply of the Goods or
Services an immediate amount of the greater of $20.00 or 10.00% of the amount
overdue shall be levied for administration fees which sum shall become
immediately due and payable.
12.5 In the event that:
(a) any money payable
to the Supplier becomes overdue, or in the Supplier's opinion the Customer will
be unable to meet its payments as they fall due; or
(b) the Customer
becomes insolvent, convenes a meeting with its creditors or proposes or enters
into an arrangement with creditors, or makes an assignment for the benefit of
its creditors; or
(c) 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 Supplier's other remedies at law
(i) the Supplier 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
(ii) all amounts owing
to the Supplier shall, whether or not due for payment, immediately become
payable in addition to the interest payable under clause 12.1 hereof.
13. Title
13.1 It is the
intention of the Supplier and agreed by the Customer that property in the Goods
shall not pass until:
(a) The Customer has
paid all amounts owing for the particular Goods, and
(b) The Customer has
met all other obligations due by the Customer to the Supplier in respect of all
contracts between the Supplier and the Customer, and that the Goods shall be
kept separate until the Supplier shall have received payment and all other
obligations of the Customer are met.
13.2 It is further
agreed that:
(a) Until such time as
ownership of the Goods shall pass from the Supplier to the Customer the
Supplier may give notice in writing to the Customer to return the Goods or any
of them to the Supplier. 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 Supplier then the Supplier or the Supplier'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 Supplier 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 Supplier.
(d) The Customer shall
not deal with the money of the Supplier in any way which may be adverse to the
Supplier.
(e) Receipt by the
Supplier 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 Supplier'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 Supplier.
(g) The Supplier may
require payment of the Price or the balance of the Price due together with any
other amounts due from the Customer to the Supplier arising out of these terms
and conditions, and the Supplier may take any lawful steps to require payment
of the amounts due and the Price.
(h) The Supplier can
issue proceedings to recover the Price of the Goods sold notwithstanding that
ownership of the Goods may not have passed to the Customer.
(i) Until such time
the Customer has the Supplier's authority to convert the goods into other
products and if the goods are so converted, the parties agree that the Supplier
will be the owner of the end products
14. Security And
Charge
14.1 Despite anything
to the contrary contained herein or any other rights which the Supplier may
have howsoever:
(a) Where the Customer
and/or the Guarantor (if any) is the owner of land, realty or any other asset
capable of being charged, both the Customer and/or the Guarantor agree to
mortgage and/or charge all of their joint and/or several interest in the said
land, realty or any other asset to the Supplier or the Supplier's nominee to
secure all amounts and other monetary obligations payable under the terms and
conditions. The Customer and/or the Guarantor acknowledge and agree that the
Supplier (or the Supplier's nominee) shall be entitled to lodge where
appropriate a caveat, which caveat shall be released once all payments and
other monetary obligations payable hereunder have been met.
(b) Should the
Supplier elect to proceed in any manner in accordance with this clause and/or
its sub-clauses, the Customer and/or Guarantor shall indemnify the Supplier
from and against all the Supplier's costs and disbursements including legal
costs on a solicitor and own client basis.
(c) To give effect to
the provisions of clause [14.1 (a) and (b)] inclusive hereof the Customer
and/or the Guarantor (if any) do hereby irrevocably nominate constitute and
appoint the Supplier or the Supplier's nominee as the Customer's and/or
Guarantor's true and lawful attorney to execute mortgages and charges (whether
registerable or not) including such other terms and conditions as the Supplier
and/or the Supplier's nominee shall think fit in his/her/its/their absolute discretion
against the joint and/or several interest of the Customer and/or the Guarantor
in any land, realty or asset in favour of the Supplier and in the Customer's
and/or Guarantor's name as may be necessary to secure the said Customer's
and/or Guarantor's obligations and indebtedness to the Supplier and further to
do and perform all necessary and other acts including instituting any necessary
legal proceedings, and further to execute all or any documents in the
Supplier's absolute discretion which may be necessary or advantageous to give
effect to the provisions of this clause.
15. Cancellation
15.1 The Supplier may
cancel these terms and conditions or cancel delivery of Goods at any time
before the Goods are delivered by giving written notice. The Supplier shall not
be liable for any loss or damage whatever arising from such cancellation.
15.2 At the Suppliers
sole discretion the Customer may cancel delivery of the Goods. In the event
that the Customer cancels delivery of the Goods the Customer shall be liable
for any costs incurred by the Supplier up to the time of cancellation.
16. Privacy Act
1988
16.1 The Customer
and/or the Guarantor/s agree for the Supplier to obtain from a credit-reporting
agency a credit report containing personal credit information about the
Customer and Guarantor/s in relation to credit provided by the Supplier.
16.2 The Customer
and/or the Guarantor/s agree that the Supplier may exchange information about
Customer and Guarantor/s with those credit providers named in the Application for
Credit account or named in a consumer credit report issued by a reporting
agency for the following purposes:
(a) To assess an
application by Customer;
(b) To notify other
credit providers of a default by the Customer;
(c) To exchange
information with other credit providers as to the status of this credit
account, where the Customer is in default with other credit providers; and
(d) To assess the
credit worthiness of Customer and/or Guarantor/s.
16.3 The Customer
consents to the Supplier 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 Supplier for
the following purposes and for other purposes as shall be agreed between the
Customer and Supplier or required by law from time to time:
(a) provision of
Services & Goods;
(b) marketing of
Services and/or Goods by the Supplier, its agents or distributors in relation
to the Services and Goods;
(c) analysing,
verifying and/or checking the Customer's credit, payment and/or status in
relation to provision of Services/Goods;
(d) processing of any
payment instructions, direct debit facilities and/or credit facilities
requested by Customer; and
(e) 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 Supplier may
give, information about the Customer to a credit reporting agency for the
following purposes:
(a) to obtain a
consumer credit report about the Customer; and or
(b) allow the credit
reporting agency to create or maintain a credit information file containing
information about the Customer.
17. Unpaid
Supplier's Rights To Dispose Of Goods
17.1 In the event that:
(a) the Supplier
retains possession or control of the Goods; and
(b) payment of the
Price is due to the Supplier; and
(c) the Supplier has
made demand in writing of the Customer for payment of the Price in terms of
this contract; and
(d) the Supplier 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 Supplier, the Supplier may
dispose of the Goods and may claim from the Customer the loss to the Supplier
on such disposal.
18. Lien &
Stoppage in Transit
18.1 Where the Supplier
has not received or been tendered the whole of the price, or the payment has
been dishonoured, the Supplier shall have:
(a) a lien on the
goods;
(b) the right to
retain them for the price while the Supplier is in possession of them;
(c) a right of
stopping the goods in transit whether or not delivery has been made or
ownership has passed; and
(d) a right of resale,
(e) the foregoing
right of disposal, provided that the lien of the Supplier shall continue
despite the commencement of proceedings or judgement for the price having been
obtained.
19. Electrical
Wiring
19.1 In the event that
wiring is required for electrically operated shutters, all quotations are based
on the following criteria:
(a) standard 240v
general purpose outlet within 500mm of the shutter switch position
(b) switch to be face
mounted to wall same side as shutter
(c) all electrical
wiring will be mounted in white mini ducting.
20. General
20.1If any provision
of these terms and conditions shall be invalid, void, illegal or unenforceable
the validity, existence, legality and enforceability of the remaining
provisions shall not be affected, prejudiced or impaire
20.2 All Goods supplied
by the Supplier are subject to the laws of New South Wales and the Supplier
takes no responsibility for changes in the law which affect the Goods supplied.
20.3 The Supplier 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 Supplier of these terms and conditions.
20.4 In the event of
any breach of this contract by the Supplier the remedies of the Customer shall
be limited to damages. Under no circumstances shall the liability of the
Supplier exceed the Price of the Goods.
20.5 The Customer shall
not set off against the Price amounts due from the Supplier.
20.6 It is the
responsibility of the Customer to ensure that the necessary council,
government, statutory or body corporate approvals, permissions or consent have
been obtained prior to delivery of Goods. The Customer indemnifies the Supplier
from any liability for failure to obtain such permission, consent or approval.
20.6 The Supplier may
license or sub-contract all or any part of its rights and obligations without
the Customer's consent.
20.8 The Supplier
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
Supplier notifies the Customer of such change.
20.9 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.