Terms and Conditions
TERMS OF TRADE
The following terms and conditions are the terms and conditions upon which AllSealed WA (ABN 26 5533 04462) and any person or entity acting on AllSealed WA’s behalf and with AllSealed WA’s authority (“we”, “us” or “our”) will provide our product and services to the person, business, trust, entity or corporation that engages us to provide products and services (“you”).
Definitions & Interpretations
- In this document, unless the context requires otherwise:
(a) Headings are for convenience only and do not affect the interpretation of this document.
(b) Words expressed in the singular include the plural and vice versa;
(c) If a word or phrase is defined, any other grammatical form of that word or phrase, whether it is capitalised or not has a corresponding meaning, unless the context suggests otherwise
(d) If two or more parties to this agreement who represent the same interest assume the liability to comply with their obligations under this agreement jointly, and in addition each of them assumes those obligations severally.
(e) A party to this document or to any other document or agreement includes a successor in title, permitted substitute or a permitted assign of that party.
(f) A reference to dollars or $ is to an amount in Australian currency.
(g) A provision of this document must not be construed to our disadvantage merely because we were responsible for the preparation of this document or the inclusion of any term in this document.
(h) If under the provisions of this agreement or under any notice or demand anything is required to be done on a day which is not a Business day, the day or the last day for compliance is deemed to be the immediately following Business day. “Business day” means any day which is not Saturday, Sunday or a public holiday
(i) The word “ACL” means The Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(j) The word “Price” means the price specified in the Quote and if no price is specified then it means the market rate that we charge from time to time for the products or services which we supplied to you. The price unless otherwise agreed does not include delivery costs
(k) The word “Quote” means the quotation and other paperwork which is attached to or accompanies these terms of trade.
(l) The word “Site” refers to the premises or place where we are to provide or deliver our products or supply our services.
(m) The word “work” or any similar word means the provision of services and supply of products by us to you in accordance with this document and Quote.
Services & Payment
- We agree to provide the products and/or services specified in the Quote and you agree to pay us the Price, without deduction or set-off, for the provision of those products and services upon completion of the work, unless a later date is agreed by us in writing.
- We will provide the services specified in the Quote with due care and skill.
- The terms in this document and the Quote will apply to all transactions between us. This document and the Quote constitutes the entire agreement between you and us, and you acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in this document or the Quote.
- By accepting payment of any sum due to us after its due date, we do not waive our right either to require payments as they fall due or to suspend or end our arrangements with you or terminate this agreement.
- The Quote is valid for a period of 30 days from its date of issue unless otherwise withdrawn by us at an earlier date.
- Where you are requesting for us to provide goods and services to a third party, you agree to be liable for all the costs of providing the goods and services to that third party in the event that the third party does not pay us for the same.
- We reserve the right to change the Price in the event that you request a variation to the Quote.In that event, the variation will include the amount we advise you for the additional work and if no such price is provided, then the reasonable market value that we charge for the additional product or service required as a result of the variation.
- Time for payment of our invoice is of the essence.
- You must pay the deposit specified on the Quote before we commence any work or provide any products arising under this agreement.If no deposit is specified on the Quote, we have the right to request a deposit of 30% of the amount specified on the Quote and you agree to pay that deposit within 7 days of us making that request. We may cease work until we have received such deposit.
Work by Us
- You will ensure that we have clear and uninterrupted access to the Site until the products are delivered and the services in respect of this agreement is complete.You agree to indemnify us for any additional cost or loss we incur as a result of your failure to provide clear and uninterrupted access to the Site.
- In some cases, we need to apply chemicals to the work surface in order for us to do the work for you.You acknowledge that these chemicals may change the appearance of the work surfaces such as tiles or stone in some instances.
- In the event that such variation to appearance occurs, you agree that we will not be in breach of this agreement and you will not raise that as a defect or a breach of this agreement, including any breach of any applicable statutory provisions.
- You also acknowledge that all areas in which we are required to conduct work must be kept dry for 24 hours prior to us commencing the work and for a further 24 hours after the work has been completed.
- You must ensure that the Site is safe to access and the Site is safe for us to do the work.We may cease work if we deem that the Site or the work we are required to do under this agreement is a health or safety risk, and you agree to take all reasonable steps to rectify those health and safety risks.
- You authorise us to do all necessary repairs and replace all necessary parts with suitable materials (which are necessary for us to do the work) as deemed necessary in our reasonable opinion in the circumstances.
- You must inspect the products and services once they are completed or installed within 7 days of such completion and you must notify us of any alleged defect, shortage in quality, failure to comply with description or the Quote or damage within 7 days.You must provide us an opportunity to inspect the products provided and services rendered within a reasonable time following completion if you believe there has been a defect in us providing such services and delivering of products under this agreement.
- We do not undertake any plumbing, painting or decorating work and you agree that it is your responsibility to engage a plumber, painter or decorator if such services are required in respect to the work we are engaged to perform.
Default & Termination
- You and any guarantor will be in default if you do not pay us when money is due for payment or fail to comply with any other obligation under our business arrangements.
- If you are in default under our agreement we may send you a default notice. The notice will tell you what the default is and what you are required to do to correct the default. You will have 14 business days to rectify the default.
- If you do not comply with the default notice you become immediately liable to pay us all money owing with interest on that amount from the due date until payment at the rate of 9% per annum. In these circumstances, as title to the products supplied by us does not pass to you until we have been paid, we may repossess and sell the products supplied by us and apply the proceeds of the sale towards repayment of the money owed under the agreement.
- You also agree to pay on default all costs and expenses incurred in exercising our rights of recovery from you and the guarantor if any and indemnify us against any losses resulting from the default.
Title, Risk & PPSR
- Title in the products supplied under this agreement does not pass to you until we have received payment in full.
- We have a security interest in products supplied under this agreement within the meaning of the Personal Properties Securities Act 2009 (PPSA).
- To protect our security interest in the products supplied under this agreement until payment we may choose to register the agreement between us under the PPSA. You agree to do all things necessary to facilitate such registration.
- You agree to sign documents or do all things necessary to perfect our rights under the agreement and appoint us as your attorney to sign any document or do anything that may reasonably be required to enforce our rights on default.
- Until title in the products supplied to you under this agreement passes to you:
(a) we may enforce our rights under the PPSA including seizure and sale of the products supplied under this agreement if you do not pay for the work upon completion or any other due date agreed by us in writing, you irrevocably authorise us to enter your premises (or any premises under your control or under control of your agent if the products supplied under this agreement are stored at such premises) and use reasonable force to take possession of the products supplied under this agreement without liability for the tort of trespass, negligence, or payment of any compensation you or anyone claiming through you whatsoever;
(b) you agree to waive your right under PPSA to do any of the following:
(i) receive notice of removal of an accession under section 95 ;
(ii) receive notice of an intention to seize collateral under section 123;
(iii) receive notice of disposal of collateral under section 130;
(iv) receive a statement of account if there is no disposal under section 130(4);
(v) notice of retention of collateral under section 135;
(vi) redeem the collateral under section 142;
(vii) reinstate the security agreement under section 143;
(viii) object to the purchase of the collateral by the secured party under section 129;
(ix) any similar sections of the PPSA mentioned above; and
(c) receive a statement of account under section 132(3)(d) or any similar provision following a disposal showing the amounts paid to other secured parties and whether security interests held by other secured parties have been discharged.
- Unless otherwise agreed, risk in respect of the products we supply to you under this agreement passes to you at the time we deliver the product to the Site or any other location request by you. You must insure the goods against loss or damage until payment has been made to us.
- If any of the products are damaged or destroyed after delivery to you, you must direct the insurer to make payment to us of all insurance money payable in respect of the insurance claim made on the damaged or destroyed products.
- Insurance money received by us will be applied firstly against the outstanding price of the products supplied under this agreement that are damaged or destroyed, secondly against the outstanding price of all products supplied under the agreement, thirdly against the outstanding balance payable to us by you on any account under our agreements and fourthly in payment of any balance to you.
- You represent and warrant to us that all information and representations that you, or any person acting on your behalf has given in connection with our transactions are true and correct and that you have not failed to disclose to us anything relevant to our decision to have dealings with you and that no court proceedings or dispute is current that may have an adverse effect on performing your obligations under this agreement.
- Your right, as against us to retain or dispose of the products or services delivered or supplied is conditional upon you honouring our payment arrangements.
- When a dispute arises between us you agree to comply with our dispute resolution process. To this end a party with a complaint against the other is first required to notify the other of the dispute by giving written notice specifying the nature of the dispute, the outcome required and the action believed necessary under the circumstances that will assist both in settling the dispute.
- Each party will then in good faith attempt to resolve the dispute by negotiation, and if the dispute in some aspect involves payment of money, the party withholding payment is required immediately upon receipt of the notice to deposit the disputed amount into an escrow account with instructions pertaining to the release of funds. Undisputed amounts must be paid forthwith.
- Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 or the Fair Trading Act in each of the States and Territories of Australia where we undertake the work, except to the extent permitted by those Acts where applicable.
- Without limiting any other term in this document, where you are a consumer (as defined by the ACL) but the products supplied by us to you are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability under the consumer guarantees (as defined by the ACL) is limited, at our option, to one or more of the following:
(a) replacing or repairing the products supplied to you;
(b) reimbursing you for the cost of replacing or repairing the products supplied to you;
(c) re-supplying the services supplied to you again;
(d) reimbursing your the cost of having someone else supply the services we undertook for you.
- Without limiting any other term in this document, if you are not a consumer (as defined by the ACL), to the full extent permitted by law, (including but not limited to the ACL, any relevant federal, state or local statute as amended from time to time and the common law), we will not be liable in any circumstances for any loss or damage (including consequential loss or damage) to you or any property or person whatsoever arising out of or connected with: these terms of trade and/or the Quote; the provision of the products and services under this agreement; the delay in delivery, delay or non-delivery of any products supplied to you; or the delay in completing or the non-completion of the services supplied under this agreement.
- Except for any right or obligation which we cannot contract out of under the ACL, and without limiting any other term in this document, and to the full extent permitted by law, (including but not limited to the ACL, any relevant federal, state or local statute as amended from time to time and the common law):
(a) except for rectifying the work, we will not be liable for any damage to the surrounding areas related to us completing the work for you including but not limited to damage to paint, door frames, carpets or flooring;
(b) we will not be liable for any damage or loss to any supporting structure, tiles, paint, door frames, carpets or flooring or any defects, reduction in quality, wear and tear which we or any person acting on our behalf could not see or reasonably notice at our first inspection of the Site (Unapparent Matters) but which have become noticeable after that inspection of the Site. If we need to perform work arising from the Unapparent Matters, we may charge you for that extra work we need to undertake;
(c) we will not be liable for damage to products or services (including products or services not supplied by us) should building movement occur in balconies, showers or other areas serviced;
(d) we will not be liable for any damage caused to any product we supplied or installed or any work we undertook if you or any third party has tampered of interfered with it, or if any damage to the same is caused by any water leakage or plumbing which we (including any person acting on our behalf) were not aware of at the time we first inspected the Site or the time we provided you the Quote; and
(e) we will not be liable for any loss or damage arising from the Unapparent Matters
- For products not manufactured by us, the warranty shall be the current warranty provided by the manufacturer of the product we deliver or supply. We will not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the said products.
- You must provide us with not less than 14 days prior written notice of any change of ownership or other changes to your details including but not limited to changes to your address, facsimile number, email or business practice.We will not be liable for any loss that arises by your failure to comply with this term.
- We will not be liable for any loss or damage you suffer due to a failure by us to deliver the products or provide the services in circumstances which are caused by events beyond our control.
- These conditions cannot be varied unless agreed in writing by the parties.
- If any court or competent authority finds any provision of this document or Quote (or part of any provision) is invalid, illegal or unforceful, that provision or part provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the this document and Quote shall not be affected.
- If any invalid, unenforceable or illegal provision of this document or the Quote would be valid, enforceable, and legal if some part of it were deleted, the provisions shall apply with the minimum modification necessary to make it legal, valid and enforceable.
- Notices must be in writing and be given personally by Express or Registered Post with delivery confirmation or by facsimile transmission or email with receipt confirmation.
- All directors acting on behalf of a corporation or company trust who execute this agreement are required to sign a personal guarantee on terms put forward by solicitors appointed by us to irrevocable guarantee the payments due by the company or company trust to us.
- All guarantors shall be jointly and severally liable for performance of all of the terms, covenants, and conditions of our agreements.
- Without limiting any other term, we will be under no liability whatsoever to you for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by you arising out of a breach by us of this document or the Quote.
- Unless expressly specified on the Quote, the Price does not include GST (which has the meaning prescribed to it in the A New Tax System (Goods & Services and Goods & Services Tax) Act 1999 (Cth) as amended) and you are responsible for payment of the GST.
- This agreement is governed by the laws in force in Western Australia.
Privacy Act 1988
- You and the guarantors jointly and severally authorise us to exchange information about the creditworthiness of either yourself or the guarantors with any credit reporting agency at any time during the term of the agreement.
- You and/or the Guarantor/s agree that we may exchange information about you and the Guarantor/s with those credit providers either named as trade referees by you or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by you; and/or
(b) to notify other credit providers of a default by you; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where you are in default with other credit providers; and/or
(d) to assess the credit worthiness of you and/or the Guarantor/s.
- You consent to us being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
- You agree that personal credit information provided may be used and retained by us for the following purposes and for other purposes as shall be agreed between you and us or required by law from time to time:
(a) provision of products or services; and/or
(b) marketing of products or services by us, our agents or distributors in relation to the products and services; and/or
(c) analysing, verifying and/or checking you credit, payment and/or status in relation to provision of products and services; and/or
(d) we may give information about you to a credit reporting agency for the following purposes:
(i) to obtain a consumer credit report about you; and/or
(ii) allow the credit reporting agency to create or maintain a credit information file containing information about you.