All our quotations are subject to the following conditions. Acceptance of our quotation either in writing or by verbal agreement constitutes acceptance of these conditions.
Quotes are subject to change due to any variance that may incur on site and is deemed an estimate only. All efforts will be taken to communicate with client on any changes prior. Gates R Us (ABN: 64 966 348 403) hereinafter referred to as 'the supplier' TERMS and CONDITIONS of TRADE for the SUPPLY of GOODS and/or SERVICES to CUSTOMERS (hereinafter referred to as 'terms', 'terms of trade', 'goods/services' and 'the customer') Application. Unless otherwise agreed in writing these terms apply to all dealings between the supplier and the customer.
1.1 A binding contract will be established upon the customer's acceptance of the supplier's quotation and/or upon the customer instructing the supplier to order materials or commence work on the customer's order.
1.2 Any variations made by the customer to the goods/services or variations to site or other conditions or events that occur before or during performance of the works will incur extra costs.
1.3 'The customer' in these terms is the person, company or body that instructs the supplier to undertake the work irrespective of whether they are acting as an agent or in any other capacity on behalf of a property owner.
1.4 The supplier reserves the right to make any enquiries and/or request assurances from any parties to ascertain the customer's
ability to pay for the supplier's goods/services.
1.5 These terms of trade can only be amended with the written consent of the supplier.
1.6 All orders for goods/services are accepted and supplied strictly on the supplier's terms to the total exclusion of anything to the contrary contained in the customer's order form or other documents.
1.7 The customer shall give the supplier at least fourteen (14) days prior written notice of any change of ownership of the premises where the supplier is undertaking fencing and/or other works and to any change in the customer's name, address and contact details.
1.8 Any instructions from the customer to the supplier for the supply of goods/services and/or the acceptance of them shall constitute acceptance of the supplier's terms as contained herein.
2.1 Price estimates are not quotations and are subject to change at the supplier's sole discretion. Unless stated otherwise GST and other applicable taxes shall be added to the price.
2.2 At the supplier's sole discretion, the supplier may require a non-refundable deposit before procuring materials or commencing work on the customer's order and/or before delivery of the goods/services.
2.3 The customer shall be liable for the total cost of the contract irrespective of any arrangements made between them and any neighbours or other parties regarding fencing contributions.
2.4 The customer shall not withhold any monies owing to the supplier as retention or default, alleged default or for any other reason.
2.5 Payment is strictly on the basis agreed in writing. If no specific payment terms have been agreed, payment must be made immediately upon request by the supplier, time being of the essence as to this obligation.
2.6 Payment shall only occur when cleared funds have been received by the supplier.
2.7 If payment by credit card is accepted by the supplier the customer shall pay the credit card commission.
2.8 The supplier can, at its sole discretion and without prejudice to its other rights and remedies, withhold supply and demand immediate payment of all amounts owed if the customer's account is overdue or the supplier is concerned over their ability to pay.
2.9 The supplier can demand immediate payment of any or all amounts owed even if they are not currently due for payment if the customer becomes insolvent, proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors or a receiver, manager, liquidator or similar person is appointed in respect of the customer or any asset of the customer.
3.1 The customer shall arrange to supply water and electricity at all times during construction and in the event these are not supplied the customer shall be liable for all costs incurred by the supplier as a result
3.2 The customer is responsible for clearing the site of all obstructions, rubbish, mounds, reticulation and other hindrances unless this is included in the supplier's quotation
3.3 Prior to commencement of work the customer is responsible for locating all underground obstructions and informing the supplier of their location. These shall include (but not limited to) telephone, gas, water, electricity, stormwater, reticulation and all other obstructions. The customer shall indemnify the supplier, its servants and contractors from all claims that may occur from any and all parties as a result of any damage, alleged damage or delays caused as a result of such obstructions.
3.4 No allowances have been made by the supplier in any quotations or estimates for concealed obstructions. In the event these result in additional costs, delays or claims by third parties the customer fully indemnify the supplier for all costs, consequences and claims.
3.5 The customer is responsible for securing the site from pets, farm and other animals and for the removal or protection of all plants, lawns, ornaments, pipes, ponds and all other fixtures, fittings and infrastructure. Whilst the supplier will endeavour to exercise due care, no responsibility will be accepted for any losses or for claims by third parties.
3.6 The customer at their expense is responsible for obtaining all permits required by the council or other authorities and shall fully indemnify the supplier from all actions and penalties as a result of failure to do so.
3.7 The customer shall at their own expense ensure that all boundary and survey pegs are in the correct position and shall fully indemnify the supplier from all actions and penalties as a result of failure to do so.
3.8 Because fences will be constructed from standard components that yield the closest height all fence heights shall be nominal.
3.9 As a result of land undulation, fence heights along the fence line may vary and because of this all fence heights will be measured from bottom of fence to top of fence. As a result of land undulation gaps may be apparent under the bottom of the fence line and whilst the supplier will endeavour to keep these to a minimum the supplier does warrant these will be totally eliminated.
4.1 Delay in delivery or completion of the works shall not constitute a breach of contract.
4.2 Delivery shall take place when the supplier's or the customer's carrier takes possession of the goods in which event the carrier shall be deemed to be the customer's agent.
4.3 Unless otherwise agreed the customer shall be responsible for the cost of delivery of the goods.
4.4 If the customer is unable to take delivery of the goods the supplier shall be entitled to charge for redelivery.
4.5 Delivery of goods to a third party nominated by the customer is deemed to be delivery to the customer.
4.6 Neither party shall be liable for any default or delay due to any act of God, war, terrorism, industrial action, fire, flood, storm, tempest or other force majeure events beyond their control.
4.7 If the supplier, its employees or agents are required to enter any property during delivery or performance of the services, the supplier accepts no responsibility for any damage to that property or to chattels or goods within it.
4.8 The customer shall not be relieved from any obligation to accept goods by reason of delay in delivery and in no event shall the supplier be responsible for any losses incurred by the customer from any delay in delivery or completion of works.
5.1 All risks pass to the customer upon delivery as defined in the Delivery clause and it is the customer's responsibility to arrange insurance for goods in transit as well as ex-delivery.
5.2 If the customer requests the supplier to deliver goods to unattended premises or to an unattended location they shall be left at the customer's sole risk.
5.3 If any goods are damaged, destroyed or stolen during or after delivery and prior to payment being received by the supplier and ownership passing to the customer, the supplier is entitled to payment in full and for any other monies owed to the supplier.
5.4 In the event that the goods are damaged, destroyed or stolen during or after delivery and prior to payment being received by the supplier, the supplier is entitled to the insurance proceeds for the goods. Presenting these terms to the customer's insurers is sufficient evidence of the supplier's rights to the insurance proceeds.
For any defect claims the supplier has agreed to accept, the supplier's liability is limited to either (at the supplier's discretion) replacing the goods/services or repairing them except where the customer has acquired the goods/services as a consumer within the meaning of the Commonwealth Competition & Consumer Act 2010, Trade Practices Act 1974 or the Fair Trading Acts.
The supplier's maximum liability for any claim will not exceed the price received by the supplier in respect of the goods/services purchased by the customer. The supplier shall not be liable for any further payments either to the customer or to any other parties for any damages, indirect and/or consequential loss and/or expense.
8.1 Goods manufactured by the supplier are warranted as free from faulty workmanship and materials for six months from date of delivery. Such warranty excludes damage caused by accidents, impacts, neglect, misuse, fading of coating and corrosion to goods installed in premises less than 3km from the ocean, estuary or waterways and for damage caused by pool and other chemicals and sunscreens. The customer shall prepay freight and other removal costs for warranty work that requires the goods to be returned to the supplier's or other premises.
8.2 For goods not made by the supplier the sole warranty shall be the warranty, if any, that is provided by the manufacturer or importer of those goods and the supplier shall have no further liabilities whatsoever.
8.3 No warranty as to fitness for purpose or otherwise is implied into any contract between the supplier and the customer save those stipulated by law. The customer indemnifies and holds the supplier harmless against any losses or costs incurred or actions or liabilities suffered or brought against the supplier directly or indirectly as a consequence of any contract made between the supplier and the customer.
9.1 The supplier shall be entitled to charge interest at two percent (2.0%) a month from the day the account becomes overdue and compounded monthly until all outstanding monies have been paid in full.
9.2 If an account is more than thirty days overdue, administration costs of twenty five dollars ($25) or ten percent (10%) (whichever is greater) up to a maximum of two hundred and fifty dollars ($250.00) shall be charged to the customer and payable immediately.
9.3 The customer shall indemnify and reimburse the supplier for all costs and disbursement in collecting outstanding debts from the customer which shall include dishonour fees, full legal costs, collection agency costs, investigators costs, court, judgement enforcement and bailiff fees, search agents costs, time, travel and all other collection costs.
9.4 If the customer breaches any of its obligations the supplier may exercise all its rights plus suspend or terminate the supply of goods/services. The supplier will not be liable for any loss or damage suffered by any parties as a result of exercising its rights.
9.5 The supplier may sell any property of the customer which it holds to offset monies owed by the customer and will not be liable for any alleged loss as a consequence of such a sale. The supplier is only liable to account for any balance from the sale proceeds after all outstanding debts and costs of sale have first been met.
10.1 If the supplier allows the customer extra time to pay monies or perform obligations for which no guarantees or other securities have been provided, the supplier may require security for payment including a guarantee by the property owner, any director or other persons connected with the customer for past as well as future indebtedness.
10.2 In the event the customer breaches these terms the customer agrees that the supplier may at its sole discretion register a caveat on the property in which the supplier is undertaking the contractual work with full rights to recover all costs and amounts owing.
10.3 Any requirement for security or guarantees is without prejudice to other rights or remedies the supplier may have and does not affect the reservation of title in goods/services supplied to the customer.
11.1 If any clauses in these terms contravene any provisions in the PPSA 2009 or any amendments thereto such clause or clauses shall be deleted without affecting the validity of the remaining clauses of these terms. The following definitions of the PPSA and
amendments thereto apply to the supplier's terms of trade:
11.1.1 Financing statement. This has the same meaning as defined by the PPSA;
11.1.2 Financing change statement. This has the same meaning as defined by the PPSA;
11.1.3 Security agreement. This has the same meaning in these terms of trade as the security agreement created between the customer and the supplier in the PPSA;
11.1.4 Security interest. This has the same meaning as defined by the PPSA.
11.2 The customer hereby assents that by placing orders for goods/services with the supplier the customer acknowledges and agrees that the supplier's terms of trade:
11.2.1 Constitute a security agreement for the purposes of the PPSA in such goods/services;
11.2.2 Create a security interest in such goods/services and in goods/services previously supplied which have not been fully paid for and for goods/services that will be supplied in the future.
11.3 The customer agrees to:
11.3.1 Sign and provide without delay any documents and/or accurate information the supplier may require to register a financing statement or financing change statement concerning a security interest on the Personal Property Securities Register and to register any other document required to be registered by the PPSA and to correct any defects in such documents or information.
11.3.2 Indemnify and reimburse the supplier for all costs for a financing statement or financing change statement on the Personal Property Securities Register or releasing goods/services charged thereby;
11.3.3 Not to register a financing change statement in respect of a security interest on goods/services supplied by the supplier that have not been fully paid for without the prior written consent of the supplier;
11.3.4 Not to register, or permit a third party to register, a financing statement or a financing change statement concerning goods/services supplied by the supplier that have not been fully paid for without the prior written consent of the supplier;
11.3.5 Promptly tell the supplier of any material change in its methods and policies of selling and/or reselling goods/services supplied by the supplier which would change the nature of proceeds of such sales.
11.4 With regard to sections 96, 115 and 125 of the PPSA, the supplier and the customer agree that these do not apply to any security agreements created by these terms and furthermore the customer waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.5 With regard to sections 142 & 143 of the PPSA the customer waives its rights as a grantor and/or a debtor under the PPSA.
11.6 With regard to section 157 of the PPSA, unless otherwise agreed in writing by the supplier the customer waives its right to receive a verification statement.
11.7 The customer shall unconditionally approve any actions taken by the supplier under clauses 11.2 to 11.6.