Euroglass Australia Pty Ltd Terms and Conditions
1.1 “Company” shall mean Euroglass Australia Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Euroglass Australia Pty Ltd.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Company to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Company to the Customer (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 the Company to the Customer.
1.5 “Services” shall mean all Services supplied by the Company to the Customer 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 the Company and the Customer in accordance with clause 6 of this contract.
2. The Competition and Consumer Act 2010 (“CCA”) 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 CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the Customer buys Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
3. Building and Construction Industry Payments Act 2004
3.1 At the Company’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.
3.2 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.
4. Glass & Aluminium Association of Queensland Inc. (“GAAQ”)
4.1 The Company uses the GAAQ guidelines for the supply of processed glass for use in shower cubicles, pool
fencing, balustrades, and painted glass splashbacks.
5.1 Any instructions received by the Company from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
5.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
5.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can
only be amended with the written consent of the Company.
5.4 The Customer shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any 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). The Customer shall be liable for any loss incurred by the Company as a result of the Customer’s failure to comply with this clause.
5.5 Goods are supplied by the Company only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
5.6 Where Goods supplied by the Company and are to be collected by the Customer from the Company’s premises, the Customer shall collect the Goods within ten (10) working days of being advised by the Company that the Goods are available for collection. Failure on the part of the Customer to collect their Goods from the Company’s premises within ten (10) working days of being advised by the Company that they are available for collection shall entitle the Company to send the Goods, via courier, to the Customer’s premises. The Customer shall be liable for all courier costs incurred by the Company.
6. Price And Payment
6.1 At the Company’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Company to the Customer in respect of Goods supplied; or
(b) the Company’s quoted Price (subject to clause 6.2) which shall be binding upon the Company provided that the Customer shall accept the Company’s quotation in writing within sixty (60) days.
6.2 The Company reserves the right to change the Price in the event of a variation to the Company’s quotation.
6.3 At the Company’s sole discretion a deposit may be required.
6.4 At the Company’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Customers shall be made by instalments in accordance with the Company’s payment schedule.
6.5 The Company may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed.
6.6 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.
6.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of two and one half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and the Company.
6.8 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.
7. Delivery Of Goods
7.1 At the Company’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at the Company’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Company or the Company’s nominated carrier); or
(c) the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
7.2 At the Company’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price.
7.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Company shall be entitled to charge a reasonable fee for redelivery.
7.4 The Customer is solely responsible for providing free and clear access to the work site at the arranged time in accordance with the installation schedule agreed between the Customer and the Company, and for any site preparation as specified by the Company. The Customer shall be liable for any loss incurred by the Company as a result of the Customer failing to comply with this clause.
7.5 The Customer shall be on site at the time of installation of the Goods to approve of position, colour, and pattern prior to fixing the Goods to the wall. The Customer may nominate, prior to installation, a representative that will be on site to approve the position, colour, and pattern of the Goods being installed. The Customer warrants that this representative has the authority to make any installation decisions required by the Company, and the Customer shall indemnify the Company against any loss or damage caused by the decisions made by their representative.
7.6 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.
7.7 The Company 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.
7.8 The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.
7.9 The Company shall not be liable for any loss or damage whatever due to failure by the Company to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of the Company.
8.1 If the Company retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
8.3 The Customer acknowledges that Goods supplied may exhibit variations in colour from samples to finished products, and from batch to batch, and in varying weather conditions. The Company shall not be liable in any way whatsoever where such variations occur.
8.4 The Company shall not be liable whatsoever for damage caused to the Goods by any other tradesmen.
9.1 The Company and Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Company all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer.
9.2 Receipt by the Company 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 Company’s ownership or rights in respect of the Goods shall continue.
9.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and (c) the Company shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to the Company then the Company or the Company’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; and
(e) the Customer is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and
including the amount the Customer owes to the Company for the Goods, on trust for the Company; and
(f) the Customer shall not deal with the money of the Company in any way which may be adverse to the Company; and
(g) 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 Company; and
(h) the Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Company will be the owner of the end products.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Customer and the Company by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
(i) all Goods previously supplied by the Company to the Customer (if any);
(ii) all Goods that will be supplied in the future by the Company to the Customer.
10.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA
or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Company;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Company; and
(e) immediately advise the Company of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.4 The Company and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Customer shall unconditionally ratify any actions taken by the Company under clauses 10.3 to 10.5.
11.1 The Customer shall inspect the Goods on delivery and shall within two (2) days of delivery (time being of the essence) notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Customer shall afford the Company 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 presumed to be free from any defect or damage. For defective Goods, which the Company has agreed in writing that the Customer is entitled to reject, the Company’s
liability is limited to either (at the Company’s discretion) replacing the Goods or repairing the Goods except where the Customer 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
12.1 Returns of hardware, fittings, and accessories will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 11.1; and
(b) the Company has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(d) the Company will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
12.2 Returned Goods may (at the Company’s sole discretion) incur restocking and handling fees.
12.3 The Company will not accept the return of any glass products.
13.1 Subject to the conditions of warranty set out in clause 13.2 the Company warrants that if any defect in any workmanship of the Company becomes apparent and is reported to the Company within twelve (12) months of the
date of delivery (time being of the essence) then the Company will either (at the Company’s sole discretion) replace or remedy the workmanship.
13.2 The conditions applicable to the warranty given by clause 13.1 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; or
(ii) failure on the part of the Customer to follow any instructions or guidelines (including any care and maintenance guidelines) provided by the Company; 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) damage to any other products resulting from the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(vi) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and the Company shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Company’s consent.
(c) in respect of all claims the Company shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
13.3 For Goods not manufactured by the Company, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Company 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.
13.4 The warranty period for shower screens and splashbacks is three (3) years.
13.5 The warranty period for pool fences, balustrades, mirrors, and sliding and folding door systems is twelve (12) months.
14. Intellectual Property
14.1 Where the Company has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in the Company, and shall only be used by the Customer at the Company’s discretion.
14.2 The Customer warrants that all designs or instructions to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to
indemnify the Company against any action taken by a third party against the Company in respect of any such infringement.
15. Default & Consequences of Default
15.1 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 one half percent (2.5%) per calendar month and such interest shall compound
monthly at such a rate after as well as before any judgment.
15.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company’s collection agency costs.
15.3 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.
15.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) 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.
15.5 Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Company becomes overdue, or in the Company’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.
15.6 Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Company becomes overdue, or in the Company’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.
16. Security And Charge
16.1 Despite anything to the contrary contained herein or any other rights which the Company 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 Company or the Company’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or
the Guarantor acknowledge and agree that the Company (or the Company’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 the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all
necessary acts to give effect to the provisions of this clause 16.1.
17.1 The Company 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 Customer. On giving such notice the
Company shall repay to the Customer any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatever arising from such cancellation.
17.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits, and the costs of any Goods manufactured for the
Customer) up to the time of cancellation.
18. Privacy Act 1988
18.1 The Customer and/or the Guarantor/s (herein referred to as the Customer) agree for the Company to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Company.
18.2 The Customer agrees that the Company may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(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/or
(d) to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
18.3 The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
18.4 The Customer agrees that personal credit information provided may be used and retained by the Company for the following purposes (and for other purposes as shall be agreed between the Customer and Company or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by the Company, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(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 Goods.
18.5 The Company 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;(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
18.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that the Company is a current credit provider to the Customer;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of the Company, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by the Company has been paid or otherwise discharged.
19. Unpaid Seller’s Rights
19.1 Where the Customer has left any item with the Company for repair, modification, exchange or for the Company to perform any other Service in relation to the item and the Company has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Company shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while the Company is in possession of the item;
(c) a right to sell the item.
19.2 The lien of the Company shall continue despite the commencement of proceedings, or judgment for the Price
having been obtained.
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 The Company 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 Company of these terms and conditions.
20.4 In the event of any breach of this contract by the Company the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
20.5 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Company.
20.6 The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.7 The Customer agrees that the Company 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 the Company notifies the Customer 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, drought, storm or other event beyond the reasonable control of either party.
20.9 The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.
© Copyright – EC Credit Control Pty Ltd – 2008