GENERAL TERMS AND CONDITIONS OF SALE
To the fullest extent legally possible all contacts made between PVC WINDOWS AUSTRALIA PTY LTD ( as defined in all order forms and invoices) and the Customer relating to any goods and any services [the “goods” and/or the “services”] are subject to the following terms and conditions of sale [“these terms”] unless otherwise expressly agreed in writing.
1. Payment is to be made by cash, cheque, bank cheque or Electronic Funds Transfer without deduction within 30 days from invoice date.
2. Interest will be charged on overdue accounts at the Penalty Interest Rates Act 1983 (Vic) rate plus 2%.
a. Property in goods shall not pass until payment in full of all monies owed by the Customer.
PVC WINDOWS AUSTRALIA PTY LTD reserves the right to take possession and dispose of goods as it sees fit at any time until full payment
b. The Customer grants permission to PVC WINDOWS AUSTRALIA PTY LTD to enter any property where any products are stored / installed and with such force as is necessary.
c. Immediately upon delivery or installation, the Customer accepts liability for the safe custody of goods and agrees to indemnify PVC WINDOWS AUSTRALIA PTY LTD for any losses relating thereto.
d. Upon sale or disposition of any goods prior to full payment the Customer agrees to deposit all proceeds to a bank account which will be supplied and shall forthwith account to PVC WINDOWS AUSTRALIA PTY LTD notwithstanding that PVC WINDOWS AUSTRALIA PTY LTD may have granted any credit facility and/or time to pay.
e. Until payment in full the Customer agrees to keep all goods unpaid for as fiduciary for PVC WINDOWS AUSTRALIA PTY LTD and to store products in a manner which shows PVC WINDOWS AUSTRALIA PTY LTD as owner
f. This clause is not intended to create a charge over any goods and shall be read down to the extent necessary to avoid creating a charge
g. The Customer agrees that a certificate purporting to be signed by an officer of PVC WINDOWS AUSTRALIA PTY LTD identifying goods as unpaid for shall be conclusive evidence that the goods have not been paid for and of PVC WINDOWS AUSTRALIA PTY LTD’s officer of PVC WINDOWS AUSTRALIA PTY LTD identifying goods as unpaid title thereto.
4. Limitation of Liability:
a. The Customer agrees to limit any claim it makes to the cost of supply of equivalent goods.
b. PVC WINDOWS AUSTRALIA PTY LTD shall not be liable for any claim, loss or expense arising which is made after 14 days from the date of delivery of goods and /or services (or at all once goods have been unpacked, on-sold or otherwise used and applied) after which there shall be deemed to have been unqualified acceptance.
c. PVC WINDOWS AUSTRALIA PTY LTD shall not be liable in any way for any contingent, consequential, direct or indirect, special or punitive damage arising in any way and whether due to PVC WINDOWS AUSTRALIA PTY LTD’s negligence or otherwise and the Customer acknowledges this express limit of liability and agrees to limit any claim accordingly.
d. No other term, condition, agreement, warranty, representation or understanding whatsoever whether express or implied, in any way extending to, otherwise relating to or binding upon PVC WINDOWS AUSTRALIA PTY LTD other than these Terms is made or given.
5. Customer Material etc.: The Customer acknowledges and agrees that it is the Customer’s sole responsibility to ensure that materials, designs, drawings, specifications, procedures etc which are provided by or on behalf of the Customer to be used by PVC WINDOWS AUSTRALIA PTY LTD in meeting any orders are correct and appropriate in every particular and will be relied upon by PVC WINDOWS AUSTRALIA PTY LTD.
6. Placement of Orders: The Customer agrees:
a: in the event of any dispute arising concerning any order (and including any question of identity or authority or any telephone, facsimile or computer generated order) that the internal records of PVC WINDOWS AUSTRALIA PTY LTD will be conclusive evidence of what was ordered in all respects:
b. each order it places shall be and be deemed to be a representation by it made at the time that it is solvent and able to pay all of its debts as and when they fall due;
c; failure to pay PVC WINDOWS AUSTRALIA PTY LTD in accordance with these Terms shall be and be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 7.b) hereof and that the representations were unconscionable, misleading and deceptive;
d. when any order is placed the Customer shall inform PVC WINDOWS AUSTRALIA PTY LTD of any material facts which would or might reasonably affect the commercial decision by PVC WINDOWS AUSTRALIA PTY LTD to accept the order and/or grant credit in relation thereto and any failure to do so by or on behalf of the Customer shall create and be deemed to create an inequality of bargaining position, shall constitute and be deemed to constitute the taking of unfair advantage of PVC WINDOWS AUSTRALIA PTY LTD and to be unconscionable, misleading and deceptive.
7. Purchase Price:
a) All sales are made by PVC WINDOWS AUSTRALIA PTY LTD at its ruling price at the time of delivery.
b. The Customer shall provide its tax file number and any information required by any GST or equivalent to PVC WINDOWS AUSTRALIA PTY LTD prior to seeking any tax exemption.
8. Delivery: The Customer acknowledges and agrees that:
a) PVC WINDOWS AUSTRALIA PTY LTD accepts no responsibility or duty for deliver but may elect to arrange delivery at its discretion and without any liability and at the Customer’s costs and responsibility in all things;
b) PVC WINDOWS AUSTRALIA PTY LTD reserves the right to charge for any delivery;
c) the Customer shall be deemed to have accepted delivery and liability for the goods immediately PVC WINDOWS AUSTRALIA PTY LTD notifies the Customer that any goods are ready for collection or they are delivered to a carrier or to the Customer’s business premises or site whether attended or not;
d) a certificate purporting to be signed by an office of PVC WINDOWS AUSTRALIA PTY LTD confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket;
e) PVC WINDOWS AUSTRALIA PTY LTD will not be liable for delay, failure or inability to deliver and goods;
f) once the Customer is notified goods are ready for collection or delivery the Customer agrees to pay all costs of PVC WINDOWS AUSTRALIA PTY LTD in holding those goods for the Customer.
9. Goods and Services
a) PVC WINDOWS AUSTRALIA PTY LTD disclaims any responsibility or liability whatsoever relating to any goods and/or services:
i) made or performed to designs, drawings and/or specifications and/or procedures etc or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer, and/or
ii) utilized, stored, handled or maintained incorrectly or inappropriately:
b. The Customer agrees to follow PVC WINDOWS AUSTRALIA PTY LTD’s recommendations and directions as well as with good practice.
10. Other Terms and Conditions: No terms and conditions sought to be imposed by the Customer upon PVC WINDOWS AUSTRALIA PTY LTD shall apply.
11. Recovery Cost: The Customer shall pay to PVC WINDOWS AUSTRALIA PTY LTD the costs and expenses incurred by it or its solicitors, legal advisers, mercantile agents and other parties acting on PVC WINDOWS AUSTRALIA PTY LTD’s behalf in respect of anything instituted or being considered against the Customer whether for debt, possession of any goods otherwise.
12. Variation: Any variation or cancellation of these Terms or any order must be in writing.
a) Upon any default or breach hereof by the Customer PVC WINDOWS AUSTRALIA PTY LTD may (inter alia) retain all monies paid and/or cease further deliveries and recover from the Customer all loss of profits arising and/or at its discretion take immediate possession of any goods not paid for without prejudice to any other rights and without being liable in any way to any party.
b) The Customer agrees not to commence or continue or permit to be commenced or continued through it any suit or action against PVC WINDOWS AUSTRALIA PTY LTD while the Customer is in default under any part of these Terms or in any of its dealings with PVC WINDOWS AUSTRALIA PTY LTD.
14. Severability: Any part hereof being a whole or part of a clause shall be capable of severance without affecting any other part of these Terms.
15. Customer Restructure: The Customer shall notify PVC WINDOWS AUSTRALIA PTY LTD in writing of any change in its structure or management including any change in director, shareholder or management or change in partnership or trusteeship within 7 days of the date of any such change.
16. Jurisdiction: The Customer agrees that all contracts made with PVC WINDOWS AUSTRALIA shall be deemed to be made in Victoria and the Customer agrees to submit to the jurisdiction of the appropriate Court nominated by PVC WINDOWS AUSTRALIA PTY LTD.
17. Credit Limit: The grant of any credit facility or nomination of any credit limit is an indication only of PVC WINDOWS AUSTRALIA PTY LTD’s intention at the time PVC WINDOWS AUSTRALIA PTY LTD can vary or withdraw any credit facility at any time at its discretion and without any liability to the Customer or any other party.
18. Waiver: An election by PVC WINDOWS AUSTRALIA PTY LTD not to exercise any of its rights arising as a result of any breach of these Terms shall not constitute a waiver of any rights of PVC WINDOWS AUSTRALIA PTY LTD relating to any subsequent or other breach.
19. Notice: The Customer agrees that it shall be deemed to have notice of any change to these Terms immediately they are adopted by PVC WINDOWS AUSTRALIA PTY LTD and whether or not the Customer has actual notice thereof. The Customer shall be bound by any terms and conditions of sale adopted by PVC WINDOWS AUSTRALIA PTY LTD immediately they are so adopted and notwithstanding any other purported or pre-existing terms and conditions of PVC WINDOWS AUSTRALIA PTY LTD.
20. Indemnity: The Customer indemnifies PVC WINDOWS AUSTRALIA PTY LTD against any claim or loss arising from or related in any way to any contract or transaction between PVC WINDOWS AUSTRALIA PTY LTD and the Customer or anything arising there from or arising as a result of or subsequent to any breach of the Terms.
21. Security For Payment: The Customer agrees on request to charge with payment of all monies owed to PVC WINDOWS AUSTRALIA PTY LTD in favour of PVC WINDOWS AUSTRALIA PTY LTD:
(i) by way of a fixed charge all its books of account, financial records, goodwill, documents of title and current and later acquired real property and intellectual property; and
(ii) by way of a floating charge, the whole of the Customers other undertaking, property and assets.
22. Forward Orders: If the Customer places a forward order the Customer agrees:
a) to pay for so much of any order as is from time to time invoiced by PVC WINDOWS AUSTRALIA PTY LTD;
b) no delay or failure to fulfill any part of any order shall entitle the customer to cancel or vary any order or delay or reduce any payment.
23. Force Majeure: PVC WINDOWS AUSTRALIA PTY LTD shall not be in default or in breach of any contract with the Customer as a result of Force Majeure. Force Majeure means beyond reasonable control of PVC WINDOWS AUSTRALIA PTY LTD and includes any strike or lock-out.
a) If the Customer commits or is involved in any act of insolvency the Customer shall be deemed to be in default under these Terms.
b) An act of insolvency is deemed to include bankruptcy, liquidation, receivership, administration or the like.
25. GST: All monies payable to PVC WINDOWS AUSTRALIA PTY LTD and any other consideration for any other “taxable supply” (within the meaning of A New Tax System (Goods and Services Tax) Act 1999 and associated legislation as amended from time to time) shall be deemed at all times to be exclusive of GST and/or any other applicable taxes, government charges, levies and/or imposts of any kind whatsoever – any and all of which must be paid by the Customer to PVC WINDOWS AUSTRALIA PTY LTD (whether by way of price increase adjusted in accordance with ACCC Guidelines or otherwise) as and when in such manner as PVC WINDOWS AUSTRALIA reasonably requires.
26. Warranty: PVC WINDOWS AUSTRALIA guarantees the products supplied against faulty workmanship or materials for a period of 7 years for profile including foil lamination and 7 years for moving parts ( hardware ) from date of delivery. These guarantees will be effective provided the window care instructions are complied with.