Terms and Conditions

Definitions

  • “Supplier” means Cahills Glass & Screens Pty Ltd T/A Townsville Window & Screens, its successors and assigns or any person acting on behalf of and with the authority of Cahills Glass & Screens Pty Ltd T/A Townsville Window & Screens.
  • “Customer” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
  • “Works” means all Works or Materials supplied by the Supplier to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
  • “Price” means the Price payable for the Works as agreed between the Supplier and the Customer in accordance with clause 4

Acceptance

  • The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.
  • These terms and conditions may only be amended with the Supplier’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Supplier.

Change in Control

  • The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.

 

Price and Payment

  • At the Supplier’s sole discretion the Price shall be either:
    • as indicated on invoices provided by the Supplier to the Customer in respect of Works performed or Materials supplied; or
    • the Supplier’s quoted Price (subject to clause 2) which shall be binding upon the Supplier provided that the Customer shall accept the Supplier’s quotation in writing within thirty (30) days.
  • The Supplier reserves the right to change the Price:
    • if a variation to the Materials which are to be supplied is requested; or
    • if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
    • where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, safety considerations, prerequisite work by any third party not being completed, inaccurate structural measurements provided by the Customer, iron reinforcing rods in concrete, or hidden pipes and wiring in walls etc) which are only discovered on commencement of the Works; or
    • in the event of increases to the Supplier in the cost of labour or materials which are beyond the Supplier’s control.
  • At the Supplier’s sole discretion a deposit may be required.
  • Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:
    • on completion of the Works; or
    • before completion of the Works; or
    • twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
    • the date specified on any invoice or other form as being the date for payment; or
    • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Supplier.
  • No allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, the Supplier reserves the right to treat all retentions as placing the Customer’s account into default.
  • The Customer acknowledges and agrees that under no circumstances shall the Supplier be obligated to issue a Window Certificate until the Supplier is in receipt of full and final payment.  The Customer also agrees that the Supplier shall not accept any other form of payment (including but not limited to Promissory Notes and/or Letters of Offer from the Customer’s Banking Institute in respect of payment).
  • Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to one and a half percent 1.5% of the Price), or by any other method as agreed to between the Customer and the Supplier.
  • Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other agreement for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

Delivery of the Works

  • Subject to clause 2 it is the Supplier’s responsibility to ensure that the Works start as soon as it is reasonably possible.
  • The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Supplier claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the Supplier’s control, including but not limited to any failure by the Customer to:
    • make a selection; or
    • have the site ready for the Works; or
    • notify the Supplier that the site is ready.
  • At the Supplier’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
  • The Supplier may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
  • Any time or date given by the Supplier to the Customer is an estimate only. The Supplier shall not be liable for any loss or damage whatsoever due to failure by the Supplier to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of the Supplier.

Risk

  • If the Supplier retains ownership of the Materials under clause 11 then;
    • where the Supplier is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;
      • the Customer or the Customer’s nominated carrier takes possession of the Materials at the Supplier’s address; or
      • the Materials are delivered by the Supplier or the Supplier’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
    • where the Supplier is to both supply and install Materials then the Supplier shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.
  • Notwithstanding the provisions of clause 1 if the Customer specifically requests the Supplier to leave Materials outside the Supplier’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.
  • Where the Supplier is required to install the Materials the Customer warrants that the structure of the premises or equipment in or upon which these Materials are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Supplier shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
  • Whilst every care shall be taken by the Supplier, any damage to the surrounding area or breakage to the Customer’s existing glass or tiles, damage to existing paintwork during works by the Supplier shall be at the Customer’s own risk.
  • Holes, cut outs and cutting of the Materials may weaken the strength of the Materials and although it’s unlikely, cracking may occur.  The Supplier accepts no responsibility against cracks occurring after such Materials (that are subject to holes and cut outs) are installed unless a toughened glass is used.
  • The Customer acknowledges that Materials supplied may
    • exhibit variations in shade, colour, texture, surface, finish, markings, occlusions, lines, indentations and may fade or change colour over time; and
    • expand, contract or distort as a result of exposure to heat, cold, weather; and
    • mark or stain if exposed to certain substances; and
    • be damaged or disfigured by impact or scratching.

Dimensions, Plans and Specifications

  • All customary building industry tolerances shall apply to the dimensions and measurements of the Materials unless the Supplier and the Customer agree otherwise in writing.
  • The Supplier shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer
  • If the giving of an estimate or quotation for the supply of Materials involves the Supplier estimating measurements and quantities, it shall be the responsibility of the Customer to verify the accuracy of the Supplier’s estimated measurements and quantities, before the Customer places an order based on such estimate or accepts such quotation.
  • Should the Customer require any changes to the Supplier’s estimated measurements and quantities, the Customer shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation

Access

  • The Customer shall ensure that the Supplier has clear and free access to the work site at all times to enable them to undertake the Works. The Supplier 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 the Supplier.

Customer’s Responsibilities

  • It is the Customers responsibility to;
    • make the premises available on the agreed date and time. If installation is interrupted by the failure of the Customer to adhere to the installation schedule agreed to between the Supplier and the Customer, any additional costs will be invoiced to the Customer as an extra.
    • have all areas clean and clear to enable scheduled Works to be completed in accordance with the schedule of installation; and
    • the Supplier takes no responsibilities for damage caused to Materials by other than the Supplier employees; and
    • must supply power to within 8 metres of the project; and
    • fully disclose any information that may affect the installation procedures of the Supplier; and
    • provide and have erected scaffolding or similar, to enable the Works to be undertaken (where in the Supplier’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.

Compliance with Laws

  • The Customer and the Supplier 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.
  • The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.
  • The Customer agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.

Title

  • The Supplier and the Customer agree that ownership of the Materials shall not pass until:
    • the Customer has paid the Supplier all amounts owing to the Supplier; and
    • the Customer has met all of its other obligations to the Supplier.
  • 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.
  • It is further agreed that:
    • until ownership of the Materials passes to the Customer in accordance with clause 1 that the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Supplier on request.
    • the Customer holds the benefit of the Customer’s insurance of the Materials on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
    • the production of these terms and conditions by the Supplier shall be sufficient evidence of the Supplier’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Supplier to make further enquiries.
    • the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand.
    • the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs.
    • unless the Materials have become fixtures the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Materials are kept and recover possession of the Materials.
    • the Supplier may recover possession of any Materials in transit whether or not delivery has occurred.
    • the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Supplier.
    • the Supplier may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.

Personal Property Securities Act 2009 (“PPSA”)

  • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
  • Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials that have previously been supplied and that will be supplied in the future by the Supplier to the Customer.
  • The Customer undertakes to:
    • 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 Supplier may reasonably require to:
      • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
      • register any other document required to be registered by the PPSA; or
      • correct a defect in a statement referred to in clause 3(a)(i) or 12.3(a)(ii);
    • indemnify, and upon demand reimburse, the Supplier 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 Materials charged thereby;
    • not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;
    • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of the Supplier; and
    • immediately advise the Supplier of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
  • the Supplier 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.
  • 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.
  • The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
  • Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
  • The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 3 to 12.5.
  • Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

Security and Charge

  • In consideration of the Supplier agreeing to supply the Materials, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
  • The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
  • The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.

Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

  • The Customer must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify the Supplier in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Supplier to inspect the Materials or to review the Works provided.
  • Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
  • The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
  • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Supplier makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. The Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.
  • If the Customer is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2.
  • If the Supplier is required to replace any Materials under this clause or the CCA, but is unable to do so, the Supplier may refund any money the Customer has paid for the Materials.
  • If the Supplier is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then the Supplier may refund any money the Customer has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Customer which were not defective.
  • If the Customer is not a consumer within the meaning of the CCA, the Supplier’s liability for any defect or damage in the Materials is:
    • limited to the value of any express warranty or warranty card provided to the Customer by the Supplier at the Supplier’s sole discretion;
    • limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Materials;
    • otherwise negated absolutely.
  • Subject to this clause 14, returns will only be accepted provided that:
    • the Customer has complied with the provisions of clause 1; and
    • the Supplier has agreed that the Materials are defective; and
    • the Materials are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
    • the Materials are returned in as close a condition to that in which they were delivered as is possible.
  • Notwithstanding clauses 1 to 14.9 but subject to the CCA, the Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
    • the Customer failing to properly maintain or store any Materials;
    • the Customer using the Materials for any purpose other than that for which they were designed;
    • the Customer continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
    • interference with the Works by the Customer or any third party without the Supplier’s prior approval;
    • the Customer failing to follow any instructions or guidelines provided by the Supplier;
    • fair wear and tear, any accident, or act of God.
  • Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return then the Supplier will only accept a return on the conditions imposed by that law.

Default and Consequences of Default

  • 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 the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
  • If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s contract default fee, and bank dishonour fees).
  • 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) under these terms and conditions the Supplier may suspend or terminate the supply of Works to the Customer. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
  • Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
    • any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment when it falls due;
    • the Customer becomes insolvent or bankrupt, 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
    • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

Cancellation

  • The Supplier may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to the Supplier for Works already performed. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
  • In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
  • Cancellation of orders for products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

Privacy Act 1988

  • The Customer agrees for the Supplier to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Supplier.
  • The Customer agrees that the Supplier may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
    • to assess an application by the Customer; and/or
    • to notify other credit providers of a default by the Customer; and/or
    • 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
    • to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.
  • The Customer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit.
  • The Customer agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other agreed purposes or required by):
    • the provision of Works; and/or
    • analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Works; and/or
    • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
    • enabling the collection of amounts outstanding in relation to the Works.
  • The Supplier may give information about the Customer to a CRB for the following purposes:
    • to obtain a consumer credit report;
    • allow the CRB to create or maintain a credit information file about the Customer including credit history.
  • The information given to the CRB may include:
    • personal information as outlined in 1 above;
    • name of the credit provider and that the Supplier is a current credit provider to the Customer;
    • whether the credit provider is a licensee;
    • type of consumer credit;
    • details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
    • advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and the Supplier has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
    • information that, in the opinion of the Supplier, the Customer has committed a serious credit infringement;
    • advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
  • The Customer shall have the right to request (by e-mail) from the Supplier:
    • a copy of the information about the Customer retained by the Supplier and the right to request that the Supplier correct any incorrect information; and
    • that the Supplier does not disclose any personal information about the Customer for the purpose of direct marketing.
  • The Supplier will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
  • The Customer can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at oaic.gov.au.

General

  • The failure by the Supplier to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision. 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.
  • These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland in which the Supplier has its principal place of business, and are subject to the jurisdiction of the Townsville Courts in Queensland.
  • Subject to clause 14 the Supplier shall be under no liability whatsoever to the Customer for any indirect and/or consequential 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 (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
  • The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
  • The Customer agrees that the Supplier may amend these terms and conditions at any time. If the Supplier makes a change to these terms and conditions, then that change will take effect from the date on which the Supplier notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Supplier to provide any Works to the Customer.
  • 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.
  • The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.