Universal Fencing

Terms and Conditions with Universal Fencing

  1. Definitions
“Provider” shall mean Cassidy Manufacturing Pty Ltd T/A Universal Fencing and its successors and assigns.
“Purchaser” shall mean the Purchaser or any person acting on behalf of and with the authority of the Purchaser.
    1. “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Purchaser on a principal debtor basis.
    2. “Goods” shall mean goods supplied by the Provider to the Purchaser (and where the context so permits shall include any supply of Services as hereinafter defined).
    3. “Services” shall mean all services supplied by the Provider to the Purchaser and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
    4. “Price” shall mean the cost of the Goods as agreed between the Provider and the Purchaser subject to clause 4 of this contract.
  1. Acceptance
    1. Any instructions received by the Provider from the Purchaser for the supply of Goods and/or the Purchaser’s acceptance of Goods supplied by the Provider shall constitute acceptance of the terms and conditions contained herein.
    2. Where more than one Purchaser has entered into this agreement, the Purchaser’s shall be jointly and severally liable for all payments of the Price.
    3. Upon acceptance of these terms and conditions by the Purchaser the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Provider.
    4. None of the Provider’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Provider in writing nor is the Provider bound by any such unauthorised statements.
    5. The Purchaser undertakes to give the Provider not less than fourteen (14) days prior written notice of any proposed change in the Purchaser’s name and/or any other change in the Purchaser’s details (including but not limited to, changes in the Purchaser’s address, facsimile number, or business practice).
  1. Goods
    1. The Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Provider to the Purchaser.
  1. Price And Payment
    1. At the Provider’s sole discretion the Price shall be either;
  2. as indicated on invoices provided by the Provider to the Purchaser in respect of Goods supplied; or
  3. the Provider’s current Price, at the date of delivery of the Goods, according to the Provider’s current Price list; or
  4. Provider’s quoted Price (subject to clause 4.2) which shall be binding upon the Provider provided that the Purchaser shall accept in writing the Provider’s quotation within thirty (30) days.
    1. Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Provider’s quotation and will be shown as variations on the invoice.  Payment for all variations must be made in full at their time of completion.
    2. At the Provider’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
    3. Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms.  If no time is stated then payment shall be on delivery of the Goods.
    4. The Provider may withhold delivery of the Goods until the Purchaser has paid for them, in which event payment shall be made before the delivery date.
    5. At the Provider’s sole discretion, payment for approved Purchasers shall be made by instalments in accordance with the Provider’s delivery/payment schedule.
    6. At the Provider’s sole discretion, payment for approved Purchaser’s shall be due on thirty (30) days following the end of the month in which a statement is posted to the Purchaser’s address or address for notices.
    7. Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Purchaser and the Provider.
    8. 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 Provider.

 

  1. Delivery Of Goods / Services
    1. Delivery of the Goods shall be made to the Purchaser’s address. The Purchaser shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Purchaser at the Provider’s address.
    2. Delivery of the Goods to a carrier, either named by the Purchaser or failing such naming to a carrier at the discretion of the Provider for the purpose of transmission to the Purchaser, is deemed to be a delivery of the Goods to the Purchaser.
    3. The costs of carriage and any insurance which the Purchaser reasonably directs the Provider to incur shall be reimbursed by the Purchaser (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Purchaser’s agent.
    4. The Provider may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
    5. Delivery of the Goods to a third party nominated by the Purchaser is deemed to be delivery to the Purchaser for the purposes of this agreement.
    6. The Purchaser shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
    7. such discrepancy in quantity shall not exceed 5%, and
    8. the Price shall be adjusted pro rata to the discrepancy.
    9. The failure of the Provider to deliver shall not entitle either party to treat this contract as repudiated.
    10. The Provider shall not be liable for any loss or damage whatever due to failure by the Provider to deliver the Goods (or any of them) promptly or at all.
  2. Risk
    1. If the Provider retains property in the Goods nonetheless, all risk for the Goods passes to the Purchaser on delivery.
    2. If any of the Goods are damaged or destroyed prior to property in them passing to the Purchaser, the Provider is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract.  The production of these terms and conditions by the Provider is sufficient evidence of the Provider’s rights to receive the insurance proceeds without the need for any person dealing with the Provider to make further enquiries.

7.       Purchaser’s Disclaimer

    1. The Purchaser hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Provider and the Purchaser acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Provider shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Purchaser and shall not be transferable to any subsequent Purchaser.

8.       Defects / Returns

    1. The Purchaser shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Provider of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.  The Purchaser shall afford the Provider an opportunity to inspect the Goods within a reasonable time following delivery if the Purchaser believes the Goods are defective in any way.  If the Purchaser shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
    2. For defective Goods, which the Provider has agreed in writing that the Purchaser is entitled to reject, the Provider’s liability is limited to either (at the Provider’s discretion) replacing the Goods or repairing the Goods provided that:
    3. the Purchaser has complied with the provisions of clause 8.1;
    4. the Goods are returned at the Purchaser’s cost within fourteen (14) days of the delivery date;
    5. the Provider will not be liable for Goods which have not been stored or used in a proper manner;
    6. the Goods are returned in the condition in which they were delivered.
  1. Warranty
    1. Subject to the conditions of warranty set out in Clause 9.2 the Provider warrants that if any defect in any workmanship manufactured by the Provider becomes apparent and is reported to the Provider within three (3) years of the date of delivery (time being of the essence) then the Provider will either (at the Provider’s sole discretion) repair the defect or replace the workmanship.
    2. The conditions applicable to the warranty given by Clause 9.1 are:

(a)   The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:

  1. Failure on the part of the Purchaser to properly maintain any Goods; or
  2. Failure on the part of the Purchaser to follow any instructions or guidelines provided by the Provider; or
  3. Any use of any Goods otherwise than for any application specified on a quote or order form; or
  4. The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
  5. Fair wear and tear, any accident or act of God.

(b)   The warranty shall cease and the Provider shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Provider’s consent.

    1. In respect of all claims the Provider shall not be liable to compensate the Purchaser for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Purchaser’s claim.
    2. For Goods not manufactured by the Provider, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Provider shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturers warranty.

10.     The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1   Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

11.     Intellectual Property
11.1   Where the Provider has designed or drawn Goods for the Purchaser, then the copyright in those designs and drawings shall remain vested in the Provider, and shall only be used by the Purchaser at the Provider’s discretion.

    1. The Purchaser warrants that all designs or instructions to the Provider will not cause the Provider to infringe any patent, registered design or trademark in the execution of the Purchaser’s order.

 

12.     Default & Consequences Of Default

    1. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
    2. If the Purchaser defaults in payment of any invoice when due, the Purchaser shall indemnify the Provider from and against all the Provider’s costs and disbursements including on a solicitor and own client basis and in addition all of the Provider’s nominees costs of collection.
    3. Without prejudice to any other remedies the Provider may have, if at any time the Purchaser is in breach of any obligation (including those relating to payment), the Provider may suspend or terminate the supply of Goods to the Purchaser and any of its other obligations under the terms and conditions.  The Provider will not be liable to the Purchaser for any loss or damage the Purchaser suffers because the Provider exercised its rights under this clause.
    4. If any account remains unpaid at the end of the second month after supply of the Goods or Services an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
    5. In the event that:
  1. any money payable to the Provider becomes overdue, or in the Provider’s opinion the Purchaser will be unable to meet its payments as they fall due; or
  2. the Purchaser 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
  3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Purchaser or any asset of the Purchaser;

                then without prejudice to the Provider’s other remedies at law
(i)    the Provider shall be entitled to cancel all or any part of any order of the Purchaser which remains unperformed in addition to and without prejudice to any other remedies; and

  1. all amounts owing to the Provider shall, whether or not due for payment, immediately become payable in addition to the interest payable under clause 12.1 hereof.

13.     Title
13.1   It is the intention of the Provider and agreed by the Purchaser that property in the Goods shall not pass until:

  1. The Purchaser has paid all amounts owing for the particular Goods, and
  2. The Purchaser has met all other obligations due by the Purchaser to the Provider in respect of all contracts between the Provider and the Purchaser, and that the Goods shall be kept separate until the Provider shall have received payment and all other obligations of the Purchaser are met. 
    1. It is further agreed that:
  3. Until such time as ownership of the Goods shall pass from the Provider to the Purchaser the Provider may give notice in writing to the Purchaser to return the Goods or any of them to the Provider.  Upon such notice the rights of the Purchaser to obtain ownership or any other interest in the Goods shall cease.
  4. If the Purchaser fails to return the Goods to the Provider then the Provider or the Provider’s agent may enter upon and into land and premises owned, occupied or used by the Purchaser, or any premises as the invitee of the Purchaser, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
  5. The Purchaser is only a bailee of the Goods and until such time as the Provider has received payment in full for the Goods then the Purchaser shall hold any proceeds from the sale or disposal of the Goods on trust for the Provider.
  6. The Purchaser shall not deal with the money of the Provider in any way which may be adverse to the Provider.
  7. Receipt by the Provider 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 Provider’s ownership of rights in respect of the Goods shall continue.
  8. The Purchaser 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 Provider.
  9. The Provider may require payment of the Price or the balance of the Price due together with any other amounts due from the Purchaser to the Provider arising out of these terms and conditions, and the Provider may take any lawful steps to require payment of the amounts due and the Price.
  10. The Provider can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Purchaser.
  11. Until such time the Purchaser has the Provider’s authority to convert the Goods into other products and if the Goods are so converted, the parties agree that the Provider will be the owner of the end products.

14.     Security And Charge
14.1   Despite anything to the contrary contained herein or any other rights which the Provider may have howsoever:

  1. Where the Purchaser and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Purchaser 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 Provider or the Provider’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions.  The Purchaser and/or the Guarantor acknowledge and agree that the Provider (or the Provider’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met. 
  2. Should the Provider elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Purchaser and/or Guarantor shall indemnify the Provider from and against all the Provider’s costs and disbursements including legal costs on a solicitor and own client basis.
  3. To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Purchaser and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Provider or the Provider’s nominee as the Purchaser’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Provider and/or the Provider’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Purchaser and/or the Guarantor in any land, realty or asset in favour of the Provider and in the Purchaser’s and/or Guarantor’s name as may be necessary to secure the said Purchaser’s and/or Guarantor’s obligations and indebtedness to the Provider and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Provider’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
  1. Cancellation
    1. The Provider may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice.  The Provider shall not be liable for any loss or damage whatever arising from such cancellation.
    2. At the Providers sole discretion the Purchaser may cancel delivery of Goods. In the event that the Purchaser cancels delivery of Goods the Purchaser shall be liable for any costs incurred by the Provider up to the time of cancellation.

 

16.     Privacy Act 1988

    1. The Purchaser and/or the Guarantor/s agree for the Provider to obtain from a credit-reporting agency a credit report containing personal credit information about the Purchaser and Guarantor/s in relation to credit provided by the Provider.
    2. The Purchaser and/or the Guarantor/s agree that the Provider may exchange information about Purchaser and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
  1. To assess an application by Purchaser;
  2. To notify other credit providers of a default by the Purchaser;
  3. To exchange information with other credit providers as to the status of this credit account, where the Purchaser is in default with other credit providers; and
  4. To assess the credit worthiness of Purchaser and/or Guarantor/s.
    1. The Purchaser consents to the Provider being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
    2. The Purchaser agrees that Personal Data provided may be used and retained by the Provider for the following purposes and for other purposes as shall be agreed between the Purchaser and Provider or required by law from time to time:
  5. provision of Services & Goods;
  6. marketing of Services and/or Goods by the Provider, its agents or distributors in relation to the Services and Goods;
  7. analysing, verifying and/or checking the Purchaser’s credit, payment and/or status in relation to provision of Services/Goods;
  8. processing of any payment instructions, direct debit facilities and/or credit facilities requested by Purchaser;  and
  9. enabling the daily operation of Purchaser’s account and/or the collection of amounts outstanding in the Purchaser’s account in relation to the Services and Goods.
    1. The Provider may give, information about the Purchaser to a credit reporting agency for the following purposes:
  10. to obtain a consumer credit report about the Purchaser; and or
  11. allow the credit reporting agency to create or maintain a credit information file containing information about the Purchaser.

17.     Unpaid Provider’s Rights To Dispose Of Goods
17.1   In the event that:

  1. the Provider retains possession or control of the Goods; and
  2. payment of the Price is due to the Provider; and
  3. the Provider has made demand in writing of the Purchaser for payment of the Price in terms of this contract; and
  4. the Provider has not received the Price of the Goods,

then, whether the property in the Goods has passed to the Purchaser or has remained with the Provider, the Provider may dispose of the Goods and may claim from the Purchaser the loss to the Provider on such disposal.

      1. Lien

18.1   Where the Provider has not received or been tendered the whole of the price, or the payment has been dishonoured, the Provider shall have:

  1. a lien on the Goods;
  2. the right to retain them for the price while the Provider is in possession of them;
  3. a right of stopping the Goods in transit whether or not delivery has been made or ownership has passed; and
  4. a right of resale,
  5. the foregoing right of disposal,

         provided that the lien of the Provider shall continue despite the commencement of proceedings or judgement for the price having been obtained.

19.     General
19.1   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.
19.2   All Goods supplied by the Provider are subject to the laws of Victoria and the Provider takes no responsibility for changes in the law which affect the Goods supplied.
19.3   The Provider shall be under no liability whatever to the Purchaser for any indirect loss and/or expense (including loss of profit) suffered by the Purchaser arising out of a breach by the Provider of these terms and conditions.
19.4   In the event of any breach of this contract by the Provider the remedies of the Purchaser shall be limited to damages. Under no circumstances shall the liability of the Provider exceed the Price of the Goods.
19.5   The Purchaser shall not set off against the Price amounts due from the Provider.
19.6   The Provider may license or sub-contract all or any part of its rights and obligations without the Purchaser’s consent.
19.7   The Provider 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 Provider notifies the Purchaser of such change.
19.8   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.

 

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