The Trustee for THE SAMUEL & KATE LYONS FAMILY TRUST – T/A Supaview Security & Sunscreen Terms & Conditions of Trade ABN 16 074 647 628
1. Definitions
1.1 “Supaview Security & Sunscreen” shall mean The Trustee for THE SAMUEL & KATE LYONS FAMILY TRUST T/A Supaview Security & Sunscreen Security its successors and assigns or any person acting on behalf of and with the authority of The Trustee for THE SAMUEL & KATE LYONS FAMILY TRUST T/A Supaview Security & Sunscreen Security.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Supaview Security & Sunscreen to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by Supaview Security & Sunscreen to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Supaview Security & Sunscreen to the Client.
1.5 “Services” shall mean all Services supplied by Supaview Security & Sunscreen to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Supaview Security & Sunscreen and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3. Acceptance
3.1 Any instructions received by Supaview Security & Sunscreen from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Supaview Security & Sunscreen after deposit has been paid. Supaview Security & Sunscreen shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Supaview Security & Sunscreen.
3.4 The Client shall give Supaview Security & Sunscreen not less than twenty one (21 days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Supaview Security & Sunscreen as a result of the Client’s failure to comply with this clause.
3.5 Goods are supplied by Supaview Security & Sunscreen only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
4.1 At Supaview Security & Sunscreen’s sole discretion the Price shall be
either:
(a) as indicated on invoices provided by Supaview Security & Sunscreen to the Client in respect of Goods supplied; or
(b) Supaview Security & Sunscreen’s quoted Price (subject to clause 4.2) which shall be binding upon Supaview Security & Sunscreen provided that the Client shall accept Supaview Security & Sunscreen’s quotation in writing within thirty (30) days and deposit having been paid.
4.2 Supaview Security & Sunscreen reserves the right to change the Price in the event of a variation to Supaview Security & Sunscreen’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances (including, but not limited to, the door jams being damaged by termites, or due to incorrect measurements being supplied), or as a result of increases to Supaview Security & Sunscreen in the cost of materials and labour) will be charged for on the basis of Supaview Security & Sunscreen’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 Supaview Security & Sunscreen’s sole discretion a non-refundable deposit may be required.
4.4 At Supaview Security & Sunscreen’s sole discretion payment shall be due on completion of installation of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, direct deposit or by credit card (plus a surcharge of up to 1.5% of the Price), or by direct credit, or by any other method as agreed to between the Client and Supaview Security & Sunscreen.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Goods
5.1 At Supaview Security & Sunscreen’s sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Supaview Security & Sunscreen or Supaview Security & Sunscreen’s nominated carrier).
5.2 At Supaview Security & Sunscreen’s sole discretion the costs of delivery are included in the Price.
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Supaview Security & Sunscreen shall at their discretion be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.5 Supaview Security & Sunscreen may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6 The failure of Supaview Security & Sunscreen to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Supaview Security & Sunscreen shall not be liable for any loss or damage whatsoever due to failure by Supaview Security & Sunscreen to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Supaview Security & Sunscreen.
6. Risk
6.1 If Supaview Security & Sunscreen retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Supaview Security & Sunscreen is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Supaview Security & Sunscreen is sufficient evidence of Supaview Security & Sunscreen’s rights to receive the insurance proceeds without the need for any person dealing with Supaview Security & Sunscreen to make further enquiries.
6.3 Where the Client expressly requests Supaview Security & Sunscreen to leave Goods outside Supaview Security & Sunscreen’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
7. Access
7.1 The Client shall ensure that Supaview Security & Sunscreen has clear and free access to the work site at all times to enable them to undertake the works. Supaview Security & Sunscreen shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Supaview Security & Sunscreen.
8. Title
8.1 Supaview Security & Sunscreen and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Supaview Security & Sunscreen all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Supaview Security & Sunscreen in respect of all contracts between Supaview Security & Sunscreen and the Client.
8.2 Receipt by Supaview Security & Sunscreen 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 Supaview Security & Sunscreen’s ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Supaview Security & Sunscreen shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Supaview Security & Sunscreen to the Client Supaview Security & Sunscreen may give notice in writing to the Client to return the Goods or any of them to Supaview Security & Sunscreen. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Supaview Security & Sunscreen shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Supaview Security & Sunscreen then Supaview Security & Sunscreen or Supaview Security & Sunscreen’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods.
(e) the Client is only a bailee of the Goods and until such time as Supaview Security & Sunscreen has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Supaview Security & Sunscreen for the Goods, on trust for Supaview Security & Sunscreen; and
(f) the Client shall not deal with the money of Supaview Security & Sunscreen in any way which may be adverse to Supaview Security & Sunscreen; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Supaview Security & Sunscreen; and
(h) Supaview Security & Sunscreen can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Supaview Security & Sunscreen will be the owner of the end products.
9. Defects
9.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Supaview Security & Sunscreen of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Supaview Security & Sunscreen an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Supaview Security & Sunscreen has agreed in writing that the Client is entitled to reject, Supaview Security & Sunscreen’s liability is limited to either (at Supaview Security & Sunscreen’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9.2 Goods will not be accepted for return other than in accordance with 9.1 above.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 Supaview Security & Sunscreen warrants that if any defect in any workmanship of Supaview Security & Sunscreen becomes apparent and is reported to Supaview Security & Sunscreen within twelve (12) months of the date of delivery (time being of the essence) then Supaview Security & Sunscreen will either (at Supaview Security & Sunscreen’s sole discretion) replace or remedy the workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 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 Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Supaview Security & Sunscreen; 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 or act of God.
(b) the warranty shall cease and Supaview Security & Sunscreen shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Supaview Security & Sunscreen’s consent.
(c) in respect of all claims Supaview Security & Sunscreen shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
10.3 For Goods not manufactured by Supaview Security & Sunscreen, the warranty shall be the current warranty provided by the manufacturer of the Goods. Supaview Security & Sunscreen shall 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 Goods.
10.4 The conditions applicable to the warranty given on Goods supplied by Supaview Security & Sunscreen are contained on the “Warranty Card” that will be supplied with the Goods.
11. Intellectual Property
11.1 Where Supaview Security & Sunscreen has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Supaview Security & Sunscreen, and shall only be used by the Client at Supaview Security & Sunscreen’s discretion.
11.2 The Client warrants that all designs or instructions to Supaview Security & Sunscreen will not cause Supaview Security & Sunscreen to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Supaview Security & Sunscreen against any action taken by a third party against Supaview Security & Sunscreen in respect of any such infringement.
11.3 The Client hereby authorises Supaview Security & Sunscreen to utilise images of the Goods designed or drawn by Supaview Security & Sunscreen in advertising, marketing, or competition material by Supaview Security & Sunscreen.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Supaview Security & Sunscreen’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Supaview Security & Sunscreen.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Supaview Security & Sunscreen from and against all costs and disbursements incurred by Supaview Security & Sunscreen in pursuing the debt including legal costs on a solicitor and own client basis and Supaview Security & Sunscreen’s collection agency costs.
12.4 Without prejudice to any other remedies Supaview Security & Sunscreen may have, if at any time the Client is in breach of any obligation (including those relating to payment) Supaview Security & Sunscreen may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Supaview Security & Sunscreen will not be liable to the Client for any loss or damage the Client suffers because Supaview Security & Sunscreen has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.6 Without prejudice to Supaview Security & Sunscreen’s other remedies at law Supaview Security & Sunscreen shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Supaview Security & Sunscreen shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Supaview Security & Sunscreen becomes overdue, or in Supaview Security & Sunscreen’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client 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 Client or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Supaview Security & Sunscreen may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client 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 Supaview Security & Sunscreen or Supaview Security & Sunscreen’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Supaview Security & Sunscreen (or Supaview Security & Sunscreen’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Supaview Security & Sunscreen elect to proceed in any manner in accordance with this clause and/or its sub- clauses, the Client and/or Guarantor shall indemnify Supaview Security & Sunscreen from and against all Supaview Security & Sunscreen’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Supaview Security & Sunscreen or Supaview Security & Sunscreen’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14. Dispute Resolution
14.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
15. Compliance with Laws
15.1 The Client and Supaview Security & Sunscreen shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
15.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the works.
15.3 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation. If such training/induction is required, the client must advise a representative of Supaview Security & Sunscreen prior to access taking place. Any additional training may be charged to the Client as additional costs.
16. Cancellation
16.1 Supaview Security & Sunscreen may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Supaview Security & Sunscreen shall repay to the Client any sums paid in respect of the Price. Supaview Security & Sunscreen shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Supaview Security & Sunscreen (including, but not limited to, any loss of profits) up to the time of cancellation.
16.3 Cancellation of orders for Goods made to the Client’s specifications or non- stocklist items will definitely not be accepted, once production has commenced.
17. Privacy Act 1988
17.1 The Client and/or the Guarantor/s agree for Supaview Security & Sunscreen to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Supaview Security & Sunscreen.
17.2 The Client and/or the Guarantor/s agree that Supaview Security & Sunscreen may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
17.3 The Client consents to Supaview Security & Sunscreen being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by Supaview Security & Sunscreen for the following purposes and for other purposes as shall be agreed between the Client and Supaview Security & Sunscreen or required by law from time to time:
(a) provision of Goods; and/or
(c) a right to sell the item.
17.5 Supaview Security & Sunscreen may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
18. Unpaid Supaview Security & Sunscreen’s Rights
18.1 Where the Client has left any item with Supaview Security & Sunscreen for repair, modification, exchange or for Supaview Security & Sunscreen to perform any other Service in relation to the item and Supaview Security & Sunscreen has not received or been tendered the whole of the Price, or the payment has been dishonoured, Supaview Security & Sunscreen shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Supaview Security & Sunscreen is in possession of the item;
(c) a right to sell the item.
18.2 The lien of Supaview Security & Sunscreen shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
19. Building and Construction Industry Payments Act 2004 19.1 At Supaview Security & Sunscreen’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
19.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
20. General
20.1 If 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 impaired.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
20.3 Supaview Security & Sunscreen shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Supaview Security & Sunscreen of these terms and conditions.
20.4 In the event of any breach of this contract by Supaview Security & Sunscreen the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
20.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Supaview Security & Sunscreen nor to withhold payment of any invoice because part of that invoice is in dispute.
20.6 Supaview Security & Sunscreen may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.7 The Client agrees that Supaview Security & Sunscreen may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Supaview Security & Sunscreen notifies the Client of such change.
20.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
20.9 The failure by Supaview Security & Sunscreen to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Supaview Security & Sunscreen’s right to subsequently enforce that provision.
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(b) marketing of Goods by Supaview Security & Sunscreen, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
