1.1 These Terms govern our supply of Goods and Services to you, including supplies on a cash basis.
1.2 If you wish to negotiate these Terms with us then you should respond to this document, marking up these Terms and drawing those changes to our attention and obtain our agreement in writing.
1.3 It is not our practice to otherwise review terms and conditions on documents that you issue to us.
1.4 Unless we otherwise agree in writing, we do not accept, and will not be bound by, any terms or conditions included in, attached to, or referenced in, any other document you give to us like a purchase order.
2.1 Each quotation that we issue:
2.2 Quotations provided orally are subject to written confirmation.
2.3 A quotation may include additional terms or conditions, which will supplement these Terms.
2.4 Should you wish to have Services performed or Goods delivered outside our usual business hours please let us know as additional charges may apply
3.1 We are not obliged to supply any Goods or provide Services until after a contract for supply is formed.
3.2 A contract for supply is formed, and you have accepted these Terms, when:
3.3 If you revoke an Order:
4.1 The price payable for the Goods or Services will be:
4.2 We may vary our price or rates by notice to you if you request:
4.3 We reserve our right to increase the price of the Goods or Services to reflect any increase in the cost of the Goods or Services that is due to any factor beyond our control (such as, without limitation, any foreign exchange fluctuation, currency regulation of duties, significant increases in the cost of labour, materials or other costs of manufacture).
4.4 Where we vary the price or rates payable for the Goods or Services pursuant to clauses 4.2 or 4.3, we will notify you of the new price or rates. Thereafter you may reject the new price or rates within seven (7) days and terminate the contract for supply without any cost or penalty to you, otherwise you agree that the price or rates will apply to the contract.
5.1 Where you request or direct that any Goods or Services be supplied that are not strictly in accordance with the quotation,
then such Goods or Services shall constitute a variation, unless otherwise agreed between the parties.
5.2 You acknowledge and agree that:
5.3 Notwithstanding clauses 5.1 and 5.2, and subject to clause 4.4, we reserve the right to vary the quoted price if:
6.1 You acknowledge and agree that Orders for non-stock,custom-made, or special goods (collectively, the ‘Non-Stock Items’) may have to be purchased in minimum quantities.
6.2 Where Non-Stock Items require a minimum purchase quantity or volume, we will notify you before accepting your
Order.
7.1 We will use reasonable endeavours to deliver the Goods at the time and place agreed for delivery. You will make arrangements necessary to take delivery of the Goods.
7.2 You acknowledge and agree that:
7.3 Risk of loss, damage, or deterioration to the Goods passes to you, and delivery is deemed to occur, at the time:
7.4 It is your responsibility to provide suitable, practical, and safe means of access and egress to the place agreed for delivery. If the site is deemed unsuitable or unsafe (at the delivery driver’s sole discretion), then the delivery driver may:
7.5 You agree to sign our delivery docket or consignment note or that of our nominated carrier as confirmation that you have received the Goods, and if appropriate, certify that you have received the Goods in apparent good order and condition in the quantity or volume you have ordered.
7.6 If you authorise us to deliver the Goods to an unattended location or to leave them outside the agreed place for delivery, we may deliver the Goods as requested at your risk.
7.7 If delivery or collection of the Goods is deferred:
7.8 You acknowledge and agree that we may deliver the Goods in one or more lots and may invoice you for pro rata progress in respect thereof.
8.1 You must ensure that Site amenities required by our Personnel, including water, electricity (i.e. 240 volt), and sanitary accommodation (i.e. serviced toilet facilities) are made available for our Personnel’s use (at no cost to us or our Personnel). If you fail to make such amenities available, we will be entitled to invoice you any additional costs we incur in procuring or providing such amenities.
8.2 You must, prior to us commencing the Services:
8.3 Unless the contract states otherwise, you must provide us with a skip bin or suitable facilities for us to dispose of our rubbish. While we will be responsible for disposal of our rubbish, we will not be responsible for disposing of the rubbish of any third party.
8.4 You acknowledge and agree that:
8.5 If the commencement or the completion of the Services is delayed due to any event beyond our reasonable control, such as:
8.6 You must at all reasonable times during the performance of the Services permit our Personnel, semi-trailers, delivery vehicles, body trucks, and other such vehicle or machinery, to have free, clear, and unrestricted access to the Site, including ensuring that there is sufficient horizontal and vertical clearances, where the Services are to be performed to enable us to fulfil our obligations without unreasonable interruption, impediment, delay, or obstruction.
8.7 You acknowledge and agree that, given the nature of the Goods and Services, minor damage to property may occur where you have engaged us to install or remove Goods from Site (including without limitation, minor damage resultant from us gaining access to windows).
8.8 You further acknowledge that we are, to the fullest extent permitted by law, not liable for damage caused to your property or to any third party’s property (including, without limitation, damage to pathways, driveways, concreted or paved or grassed areas, or foliage), where free, clear, and unrestricted access has not been permitted in accordance with clause 8.6.
8.9 You must endeavour to notify us of any damage caused to the Site (or any neighbouring real or personal property) by us or our Personnel within twenty-four (24) hours of becoming aware of the damage.
9.1 Unless you have a Credit Facility with us which is not in default:
9.2 Payment may be made by cash, cheque, electronic funds transfer, Visa, or Mastercard credit cards. We reserve the right to change the payment methods that we accept at any time.
9.3 We may charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance.
9.4 You agree to pay GST on all taxable supplies upon us issuing you a tax invoice relating to the taxable supply.
9.5 You agree to pay sums due to us free of any set off or counterclaim and without deduction or withholding.
10.1 Clauses 10.2 to 10.4 only apply if the contract for supply is not a Consumer Contract and not a Small Business Contract.
10.2 You must, within seven (7) days of the date of delivery:
10.3 You must notify us in writing of any Claim for non-delivery within seven (7) days of the date of the invoice which relates to the Goods the subject of your Claim.
10.4 If you fail to notify us in accordance with clause 10.2 and
10.3, then, to the extent permitted by law, the Goods are deemed to have been delivered in good condition and in accordance with the contract for supply.
11.1 We will accept the return of any Goods if:
11.2 At our discretion, we may accept the return of Goods if you change your mind if:
(a) you agree to:
(b) the Goods are in substantially the same condition to the condition in which they were delivered; and
(c) the Goods were not specifically produced or procured at your request.
11.3 You indemnify and release us from any damage that occurs to any Goods in return transit. You should ensure that any returned Goods are insured against such damage.
12.1 Until such time as you have made payment in full (in cash or cleared funds) for any Goods we have supplied:
12.2 While title in the Goods remains with us, you permit us to enter upon any premises you occupy (or any premises any receiver, receiver and manager, administrator, liquidator, or trustee in bankruptcy of yours occupies) as your invitee to inspect the Goods and, when you are in default of payment of any invoice, to repossess any Goods in your possession, custody, or control.
12.3 Where we exercise our right of entry pursuant to clause 12.2, you agree that us doing so will not give rise to any Claim for
trespass or similar action against us or our officers, employees, and agents.
12.4 Where we have retaken Goods into our possession, we have the right to sell or deal with those Goods, and, if necessary, sell any Goods bearing your name or trade mark, and you hereby grant us an irrevocable licence to do all things necessary to sell those Goods.
12.5 For the removal of doubt, our interest under this clause 12 constitutes a purchase money security interest for the
purposes of the PPS Act.
13.1 Unless you have obtained our prior written and fully informed consent, you undertake not to:
13.2 You:
13.3 We need not disclose information of the kind detailed in section 275(1) of the PPS Act, unless required by law.
13.4 Where we have rights in addition to those under Part 4 of the PPS Act, those rights continue to
If you require any Goods for a particular purpose, you must advise us of that purpose prior to placing your Order and must obtain a written assurance from us that the Goods will meet your requirements. If you do not advise us of your requirements and we do not expressly warrant in writing that the Goods will be fit for your particular purpose, then you agree that you did not rely upon our skill or judgment in relation to the suitability of the Goods for that purpose.
15.1 You warrant and represent to us that all Customer Material:
15.2 You grant us a non-exclusive, non-transferrable, royalty free, perpetual, worldwide licence to use all Customer Material for:
16.1 This clause 16 applies where you have signed and executed our credit application or where you are seeking a credit facility with us or an extension of credit.
16.2 You acknowledge and agree to comply with any reasonable written requests by us to provide further information for the purpose of assessing your creditworthiness, including an updated credit application or signing our privacy statement.
16.3 Where you are a corporation (with the exception of a public listed company), you must advise us of any significant alteration to your corporate structure (for example, by changing majority directors, shareholders, or your constitution).
16.4 Where you are a corporation, we may request that your director(s):
17.1 Clauses 17.2 to 17.4 apply if you fail to pay sums to us when they fall due.
17.2 We may charge you interest on the outstanding debt (including any judgment debt) at the rate of 10% per annum.
17.3 We may suspend or cease the supply of any further Goods or Services to you.
17.4 We may require pre-payment in full for any Goods or Services which have not yet been supplied.
18.1 If you default in the performance or observance of your obligations under any contract of which these Terms form part, then:
18.2 Your liability to indemnify us will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or a breach of our obligations under contract has contributed to the Claim, loss, damage, or cost which is the subject of the indemnity.
18.3 Your liability to indemnify us is a continuing obligation separate and independent from your other obligations and survives the termination or performance of any contract of which these Terms form part.
19.1 No party is liable to the other party for any Consequential Loss, including under clause 18, however caused arising out
of or in connection with any contract for supply of which these Terms form part.
19.2 While we will take reasonable endeavours to meet any estimated delivery date or estimated time for Goods and Services, you acknowledge and agree that we are not liable for any delay associated with meeting those estimated timeframes.
19.3 If the contract for supply is not a Consumer Contract or a Small Business Contract then, to the extent permitted by law, our liability is limited to:
(a) (in the case of a supply of Goods):
(b) (in the case of a supply of Services):
A party may, with immediate effect, terminate any contract for supply of which these Terms form part by notice in writing, if the other party:
(a) commits a material or persistent breach of these Terms and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or
(b) has failed to pay sums due to the party within seven (7) days; or
(c) has indicated that it is, or may become, insolvent; or
(d) ceases to carry on business; or
(e) comprises an entity which is the subject of the appointment of receivers or managers; or
(f) comprises a natural person who:
(g) comprises a corporation which:
21.1 If you are the trustee of a trust (whether disclosed to us or not), you warrant to us that:
(a) you enter into the contract for supply in both your capacity as trustee and in your personal capacity;
(b) you have the right to be reasonably indemnified out of trust assets;
(c) you have the power under the trust deed to enter into the contract for supply; and
(d) you will not retire as trustee of the trust nor appoint any new or additional trustee without first notifying us in writing and having the new or additional trustee sign an agreement on terms substantially the same as those governing your Credit Facility (where applicable).
We may amend these Terms in the future by notifying you in writing. The amended Terms will thereafter apply to each Order you place unless you earlier give us written notice in advance of placing a further Order.
A party may only assign its rights under the contract for supply with the written consent of the other party.
24.1 You acknowledge and agree that, given the nature of the Goods or Services, we may be reasonably required to subcontract:
(a) the supply of any part of the Goods to be supplied; or
(b) the Services we are to provide (or any part of those
Services), however, doing so will not relieve us of any of our obligations to you under any contract of which these Terms form part.
If there is any conflict or inconsistency between any of the documents which together govern the relationship between the parties, it is agreed the order of precedence will be (highest to lowest):
(a) any additional terms or conditions contained in our quotation applicable to the supply of Goods or Services;
(b) any terms governing your Credit Facility; and
(c) these Terms.
If any part or term of our agreement with you (including any Credit Facility) is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.
27.1 Our relationship is governed by and must be construed according to the law applying in the State of Queensland.
27.2 The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Queensland with respect to any proceedings that may be brought at any time relating to our relationship.
In these Terms, unless the context otherwise requires, the following definitions apply.
28.1 Approval means any authorisation, assessment, accreditation, determination, registration, clearance, permit, licence, consent, certificate, or other approval obtained or required or applying in connection with any contract of which these Terms form part.
28.2 Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended.
28.3 Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, pursuant to statute or otherwise and whether involving a third party or a party to a contract for supply.
28.4 Consequential Loss includes any:
28.5 Consumer Contract has the meaning given to this term in section 23(3) of the Australian Consumer Law.
28.6 Credit Facility means an account we have opened for you on which we may, from time to time, extend you with additional time to pay for our Goods and Services and associated charges.
28.7 Customer, you means the person or other entity who has placed an Order with us for the supply of Goods or Services (or the person on whose behalf an Order is placed).
28.8 Customer Material means all information and documentation provided to us by you (or on your behalf) in the course of us supplying the Goods or Services.
28.9 Goods means all goods supplied by us, as described on our quotation, invoice, or any other form issued by us.
28.10 Order means a written or oral order placed by you requesting that we provide Goods or Services.
28.11 Personnel means officers, employees, and agents engaged by each party (but does not include the other party) and, in
the case of the Supplier, includes its subcontractors (and any employee of those subcontractors).
28.12 PPS Act means the Personal Property Securities Act 2009 (Cth), as amended.
28.13 Services means all services performed by us, as described on our quotation, invoice, or any other form issued by us.
28.14 Site means the location where the Services are to be performed.
28.15 Small Business Contract has the meaning given to this term in section 23(4) of the Australian Consumer Law.
28.16 Supplier, we, us means Mack5 Investments Pty Ltd ACN 128 337 244 as trustee for the I & L McKenzie Family Trust ABN 72 993 020 632, trading as ‘Suncoast Windows’.
In these Terms, unless the context otherwise requires:
29.1 A time is a reference to the time zone of Brisbane, Australia unless otherwise specified.
29.2 $, dollar, or AUD is a reference to the lawful currency of Australia.
29.3 A party includes a reference to that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns, and in the case of a trustee, includes any substituted or additional trustee.
29.4 A right includes a benefit, remedy, authority, discretion, or power.
29.5 The singular includes the plural and vice versa, and a gender includes other genders.
29.6 “In writing” or “written” means any expression of information in words, numbers, or other symbols, which can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.
29.7 If a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.
29.8 Words such as “includes”, “including”, and “for example” are not words of limitation and are to be construed as though followed by the words “without limitation”.
29.9 A term of an agreement in favour of two or more persons is for the benefit of them jointly and each of them separately.