1.1 “Seller” shall mean UZIT HOLDINGS PTY LTD and its successors and assigns.
1.2 “Customer” shall mean the Customer or any person acting on behalf of and with the authority of the Customer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Seller to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Plan” shall mean the plan prepared by the Seller for the Goods to be supplied and installed for the Customer, and which plan is approved by the Customer, in accordance with these terms and conditions and which is attached to the Summary Sheet. Plan dimensions are nominal and are subject to change at the time of check measure to meet any installation requirements.
1.6 “Price” shall mean the total cost of the Goods and Services as agreed between the Seller and the Customer as set out on the quotation, invoice or any other relevant order forms as the case may be.
1.7 “Services” shall mean all services supplied by the Seller to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.8 “Summary Sheet” shall mean the schedule of Goods and Services to be supplied by the Seller to the Customer.
2.1 Any instruction received by the Seller from the Customer for the supply of Goods or performance of Services and/or the Customer’s acceptance of Goods supplied, or Services rendered by the Seller shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller at the Seller’s sole discretion.
3.1 The Goods are as described on the Summary Sheet, the Plan, invoice, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Customer.
3.2 No rights to the design or technical drawings will transfer to the Customer and remain the sole property of the Seller at all times.
3.3 Selections made by the Customer from sample pieces in the Seller’s showroom may exhibit some different natural characteristics to the piece displayed. For example, natural timber, in particular, can and will often vary in colour and appearance. It is normal for natural timber to display different qualities including, but not limited to, timber grain, colour, gum veins, scars, knots and natural movement. Any differences in the initial appearance or natural ageing of timber such as cracks and splits which are inherent to natural timbers are not considered as defects or flaws and will not be covered by the warranty set out at Clause 5 herein.
4.Price and Payment
4.1 At the Seller’s sole discretion, the Price shall be either:
(a) as indicated on the Summary Sheet and invoices provided by the Seller to the Customer in respect of Goods supplied or Services rendered; or
(b) the Seller’s quoted Price which shall be binding upon the Seller provided that the Customer shall accept in writing the Seller’s quotation within thirty (30) days.
4.2 Any variation from the Plan or Summary Sheet will be charged for on the basis of the Seller’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of the variation.
4.3 Time for payment of the Price for Goods and/or Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. Specifically, there shall be payment on the following terms and in the following increments:
(a) A forty percent (40%) deposit of the Price, being due and payable upon the Customer’s acceptance of the quotation or receipt of the invoice (whichever occurs earlier);
(b) A further forty percent (40%) instalment of the Price payable on the date of the final check measure (excluding the supply and installation of sliding door robes which require the remaining balance of sixty percent (60%) to be paid no less than 7 days before the scheduled installation date);
(c) The remaining balance of twenty percent (20%) shall be due and payable no less than 7 days before the scheduled installation (being the anticipated date for installation advised by the Seller to the Customer upon receipt of the initial deposit set out in Clause 4.2(a) herein).
4.4 Payment shall be made by cash, by bank cheque, or by credit card (plus a 1.5 percent credit card fee), or by direct credit, or by any other method as agreed to between the Customer and the Seller.
4.5 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
5. Defects / Returns
5.1 The Customer shall inspect the Goods and workmanship on installation and notify the Seller in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description contained in the Summary Sheet, Plan, invoice or quote. The Customer shall afford the Seller an opportunity to inspect the Goods and workmanship and within a reasonable time following delivery if the Customer believes the Goods and workmanship are defective in any way. If the Customer shall fail to comply with these provisions, the Goods and workmanship shall be conclusively presumed to be in accordance with the terms and conditions agreed and free from any defect or damage.
6.1 Subject to the conditions of warranty set out in Clause
6.2 the Seller warrants that if any defect in the Goods or any workmanship of the Seller becomes apparent and is reported to the Seller within the time specified in Clause 6.3 below from the date of delivery/installation (time being of the essence) then the Seller will either (at the Seller’s sole discretion) repair the defect, arrange replacement of the Goods required or remedy the workmanship.
The conditions applicable to the warranty given by Clause 6.1 are:
(a) The warranty only applies to Goods which have been properly maintained and used for normal domestic use.
(b) The warranty is void if any person, other than the Seller’s authorised representatives installs, repairs or alters the Goods without the prior consent of the Seller.
(c) In respect of all claims the Seller shall not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Customer’s Claim.
(d) The Seller’s liability to the Customer is expressly limited to the Price of the Goods and/or workmanship or its replacement and all other loss or damage (including but not limited to consequential loss) is expressly excluded to the maximum extent permitted by law.
(e) Warranties claims will not be accepted by the Seller unless the original proof of home ownership together with proof of payment of the Price and copies of the appropriate warranty certificate are provided by the Customer.
(f) The Seller is entitled to have the Goods inspected by an authorised representative prior to any warranty claim being accepted.
(g) For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods at the time of purchase. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty given by the manufacturer to the Goods.
(h) If a warranted product is no longer available and cannot be repaired, 6.3 the Seller or manufacturer (as the case may be) may replace the warranted product with a substituted item which would be as close as possible in dimension, function and colour.
(i) 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 instruction or guidelines provided by the Seller; or
iii) Any use of any Goods otherwise than for normal domestic household use; 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 occasioned by normal use (including but not limited to scratches and cuts) or damage caused by impacts or accident; use of inappropriate chemicals; mistreatment; neglect or misuse; insufficient or improper care (including but not limited to inappropriate use of cleaning products); fading discolouration or damage caused by exposure to intensive or excessive light including ultra violet light, moisture or heat or excessive steam on doors, panels, drawer front and cabinets; exposure to heat or water; alterations, modifications or use of the Goods which is beyond or inconsistent with the supplied product instructions and which has not been authorised by the Seller.
6.3 For Goods manufactured by the Seller the warranty applies for five years from installation. For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods at the time of purchase. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty given by the manufacturer to the Goods.
7. Default & Consequences of Default
7.1 Interest on overdue invoices shall accrue from the date when payment becomes due on a daily basis until the date of payment at a rate of 2.0% per calendar month and shall accrue at that rate after as well as before any judgment.
7.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all of the Seller’s nominees’ costs of collection.
7.3 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods or the performance of Services to the Customer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller exercised its right under this clause.
7.5 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’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 as a trustee in bankruptcy is appointed in respect of the Customer or any asset of the Customer, then without prejudice to the Seller’s other remedies at law.
(i) the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Seller shall, whether or not due for payment, immediately become payable in addition to the interest payable under clause 7.5 hereof.
8.1 It is the intention of the seller and agreed by the Customer that property in the Goods shall not pass until:
(a) The Customer has paid all amounts owing for the particular Goods, and
(b) The Customer has met all other obligations due by the Customer to the Seller in respect of all contracts between the Seller and the Customer, and that where practicable the Goods shall be kept separate until the Seller shall have received payment and all other obligations of the Customer are met.
8.2 Receipt by the Seller 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 Seller’s ownership of rights in respect of the Goods shall continue.
8.3 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the Seller to the Customer the Seller may give notice in writing to Customer to return the Goods or any of them to the Seller. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease.
(b) The Seller hereby charges the amount representing the unpaid balance due for full payment of the Goods for the period until such time as full cleared payment for the Goods has been received from the Customer. The Seller shall be permitted to register its interest (as defined by the Personal Property 10.5 Securities Act (Cth)) in the Goods on the Personal Property Securities Register and the security interest shall be perfected as a result.
9.1 The Seller may cancel these terms and conditions or cancel delivery of Goods or performance of Services at any time before the Goods are delivered or the Services are performed by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
9.2 The Customer acknowledges that the Goods are made to measure. At the Seller’s sole discretion, the Customer may be given permission to cancel delivery of Goods or performance of Services. In the event that the Seller gives the Customer such permission, the Customer acknowledges and agrees in addition to the forfeiture of the deposit, the Customer shall be liable for any and all costs incurred by the Seller up to the time of cancellation.
10.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability, of the remaining of the provisions shall not be affected, prejudiced or impaired.
10.2 The Seller 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 Seller of these terms and conditions.
10.3 In the event of any breach of this contract by the Seller the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods or Services.
10.4 The Customer shall not set off against the Price amounts due from the Seller.
10.5 The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
10.6 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the seller notifies the Customer of such change.
10.7 Neither party shall be liable for any default due to any effect of force majeure, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.