TERMS AND CONDITIONS OF QUOTATION AND SALE
These are the Terms and Conditions of Quotation and Sale (“Terms and Conditions”) of all products supplied by Griffin Family Enterprises Pty Limited trading as Deluxe Son-Ray Blinds (“Deluxe Son-Ray Blinds”). Unless otherwise expressly agreed upon in writing between a duly authorised officer of Deluxe Son-Ray Blinds, and the customer, the following Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any document or agreement between the Client and Deluxe Son-Ray Blinds.
1. Definition “Customer” means the person/s placing the order for works or materials supplied by Deluxe Son-Ray Blinds to the Customer as specified in any invoice, document or order. The customer warrants that they have the power to enter into this agreement and has obtained all necessary authorisations to allow them to do so.
(A) All orders placed with Deluxe Son-Ray Blinds shall only be accepted subject to these Terms and Conditions. The Customer has exclusively accepted and is immediately bound by these Terms and Conditions if the Customer places an order for the product/s, signs any Quotation Contract, pays the deposit, continues to provide instructions and/or accepts delivery of the product/s.
(B) Deluxe Son-Ray Blinds may, at any time, alter these Terms and Conditions and such altered Terms and Conditions shall apply after notification by Deluxe Son-Ray Blinds to the Customer.
(A) If there is any error or omission in the quotation contract, Deluxe Son-Ray Blinds reserves the right to change the contract sum on the quotation contract. This clause applies even if the quotation contract has been accepted by the customer. Prices quoted are subject to final measure by Deluxe Son-Ray Blinds.
(B) Notwithstanding any other clause, the contract sum on the quotation will only be valid for 90 days from the date of the quotation. Deluxe Son-Ray Blinds reserves the right to make any changes to the contract sum on the quotation contract if the 90 days lapses.
(C) Deluxe Son-Ray Blinds reserves the right to make any changes to the quotation including but not limited to the contract sum if either:
(i) a variation is requested by the Customer, or
(ii) an order has not been fulfilled within 90 days of the date the order was produced. Any variation from the quotation, schedule works or specifications will allow Deluxe Son-Ray Blinds the right to stop the progress of any works until Deluxe Son-Ray Blinds and the Customer agree to changes. Payment for all variations must be made in full at the time which they are raised.
(D) At Deluxe Son-Ray Blinds’ sole discretion a portion of or the full amount of the deposit may be non-refundable. The amount that is non-refundable is a true estimate of costs and expenses spent to date.
4. Terms of Payment
(A) The customer shall make payment according to the quotation provided and as follows, unless otherwise agreed:
(i) at the time of ordering, a 50% deposit is to be paid for all blind orders, and a 50% deposit is to be paid for all shutter orders
(ii) the balance of the quotation is to be paid in full upon delivery of the products, unless the Customer has been granted a credit account. Granting of a credit account shall be at the absolute discretion of Deluxe Son-Ray Blinds and unless otherwise demanded by Deluxe Son-Ray Blinds the Customer granted credit account shall make payment within the terms approved in the credit account which, unless otherwise agreed between the parties, full payment is required within 30 days of installation.
(B) If the customer fails to make payment in accordance with clause
4(A), Deluxe Son-Ray Blinds shall be entitled to:
(i) Require the payment of cash upon delivery and commencement of any further products;
(ii) Charge default interest at the rate of 15% per annum on all overdue amounts (including late payment charges and amounts other than the contract sum) calculated on a day to day basis on any monies due but unpaid, such interest to be computed from the due date for payment AND the parties agree that such default is not a penalty but is a true measure of damages incurred by Deluxe Son-Ray Blinds. Payments received from the Customer will be credited first against any default interest and all such charges shall be payable upon demand;
(iii) Claim from the Customer all costs relating to any action taken by Deluxe Son-Ray Blinds to recover moneys or goods due from the Customer including, but not limited to, any legal costs and disbursements on a solicitor-client basis;
(iv) Cease any further deliveries to the Customer and terminate any agreement in relation to products that have not been delivered; and
(C) The Customer agrees to give all its rights, title and interest in any land, realty or other assets capable of being charged, owned by the Customer either presently or in the future, in return for securing the performance by the Customer of its obligations under these Terms and Conditions (e.g. registering a caveat over the Customers property). For the purpose of this Clause, the Customer irrevocably appoints Deluxe Son-Ray Blinds as the Customer’s attorney/s to perform all necessary acts to execute its rights under this Clause including, but not limited to, signing any document on the Customer’s behalf. The Customer further indemnifies Deluxe Son-Ray Blinds against all of Deluxe Son-Ray Blinds’ cost and disbursements (e.g. legal costs) incurred as a result of exercising its rights under this Clause.
(D) The Customer shall not be entitled to set off against, or deduct from the contract sum, any sums owed or claimed to be owed to the Customer by Deluxe Son- Ray Blinds nor to withhold payment of any invoice because part of that invoice is in dispute.
(A) Any date or time quoted for delivery is an estimate only and Deluxe Son-Ray Blinds shall endeavour to effect delivery at a time or times required by the Customer, but failure to do so shall not confer any right of cancellation, termination or refusal of delivery on the Customer’s part or render Deluxe Son-Ray Blinds liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof.
(B) The Customer will not be relieved of any obligation to accept or pay for products by reason of any delay in delivery or any strike, lockout, unavailability of materials, accidents to machinery, differences with workmen, breakdowns, shortages of supplies or labour, fires, floods, storm or tempest, transport delays, acts of God, restrictions or intervention imposed by any Laws, regulations, Governments or agency’s thereof and any other cause beyond the control of Deluxe Son-Ray Blinds or any other cause whatsoever.
(C) Deluxe Son-Ray Blinds’ obligation to deliver shall be discharged upon arrival of the products at the customers nominated delivery destination, nominated transport company, nominated agent or the address appearing on the quotation.
6. Inspection The customer shall examine the products immediately after delivery and Deluxe Son-Ray Blinds shall not be liable for any misdelivery, shortage, defect or damage unless Deluxe Son-Ray Blinds receives details in writing within 7 days of the date of delivery of the products. The customer or their agent shall not apply painting, staining or finishing until such time any accepted defect is rectified by Deluxe Son-Ray Blinds.
7. Property and Risk
(A) Notwithstanding delivery of the product or their installation property in any given products shall remain with Deluxe Son-Ray Blinds until the Customer has paid and discharged any and all other indebtedness to Deluxe Son-Ray Blinds on any account whatsoever including all applicable sales taxes and any other taxes, levies and duties.Any payment made by or on behalf of a Customer which is later voided by the application of any Statutory Provision shall be deemed not to discharge the Customer’s indebtedness and in such an event the parties are to be restored to rights which each respectively would have had if the payment had not been made.
(B) The risk in the product shall pass to the Customer upon delivery to the Customer or their agent or to a transport company nominated by the Customer.
(C) The Customer acknowledges that they are in possession of the products solely as a bailee for Deluxe Son-Ray Blinds until payment as defined in clause
4(A) has been made in full to Deluxe Son-Ray Blinds and until such payment. The Customer shall be fully responsible for any loss or damage to the goods whatsoever and howsoever caused following delivery.
(D) The Customer hereby irrevocably grants to Deluxe Son-Ray Blinds, its agents and servants an unrestricted licence, without notice, to enter premises occupied by the Customer to identify and remove any of the products, the property of Deluxe Son-Ray Blinds, in accordance with the Terms and Conditions, without in any way liable to the Customer or any person claiming through the Customer. Deluxe Son-Ray Blinds shall have the right to sell or dispose of any such products removed or otherwise in its sole discretion and shall not be liable for any loss occasioned thereby.
(E) Deluxe Son-Ray Blinds licences the Customer to install the products, if appropriate. If the products are affixed to other materials the totality thereof shall be the sole and exclusive property of Deluxe Son-Ray Blinds until payment, as defined in clause
4(A), has been made in full to Deluxe Son-Ray Blinds unless the other materials or part thereof are or is the property of a party or parties other than the Customers in which case the totality thereof shall be deemed to be owned as tenants in common with such other party or parties in shares
8. Force Majeure Deluxe Son-Ray Blinds shall not be liable for any failure or delay in supply or delivery of the products where such failure or delay is wholly or partly due to any cause or circumstances whatsoever outside the reasonable control of Deluxe Son-Ray Blinds including, but not limited to war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind.
(A) If any materials specified within this quotation are unavailable at the time of the construction, Deluxe Son-Ray Blinds in its absolute discretion may substitute a reasonable alternative, which the Customer shall accept.
(B) Deluxe Son-Ray Blinds uses natural products that therefore may vary in colour, finish, markings, shade, surface, texture, veining, and may contain natural fissures, knots and indentations. Deluxe Son-Ray Blinds also uses fabric, which can be susceptible to variation of colour and weave. Although Deluxe Son-Ray Blinds will make all reasonable endeavours to match sales samples and/or requests of Customers to the finished product/s Deluxe Son-Ray Blinds will not be liable whatsoever where such samples or requests differ with the finished product.
(C) Wood is a material subject to expansion, contraction and delamination. Deluxe Son-Ray Blinds will accept no responsibility or liability whatsoever for gaps that may nappear in the material as a result of factors beyond Deluxe Son-Ray Blinds’ control
(D) The Customer acknowledges and accepts that it is their responsibility to provide protection to all surfaces of the products and protection of completed work is not the responsibility of Deluxe Son-Ray Blinds, unless specifically included in the quotation.
(E) Deluxe Son-Ray Blinds will not be responsible for painting, staining or applying finishing to any product unless it is specifically included in the quotation. Any damage sustained to any part of the work supplied by Deluxe Son-Ray Blinds is the Customers responsibility.
(F) Deluxe Son-Ray Blinds will make the products in accordance with the Customer’s specifications and does not accept any liability in the event that incorrect measurements are provided.
10. Customers Acknowledgements
(A) The Customer acknowledges that products supplied may change or fade colour over time, expand, contract or distort as result of exposure to elements and weather, mark or stain if exposed to certain substances and be damaged or disfigured by impact or scratching. Deluxe Son-Ray Blinds will not be held responsible for any changes to the material or products as a result of the above.
(B) It is the sole responsibility of the Customer to check and confirm the order with Deluxe Son-Ray Blinds prior to accepting the Quotation. Deluxe Son-Ray Blinds will not be held liable for incorrect orders.
(C) The Customer acknowledges and agrees that if any product/s are stored on Deluxe Son-Ray Blinds’ premises for longer than one
(1) month, then Deluxe Son-Ray Blinds shall be entitled to render an invoice to the Customer requiring the Customer to pay the amount owing in full, regardless of when the order will commence and/or be completed. Deluxe Son-Ray Blinds further reserves their right to render a storage fee, the amount of which is at their discretion. The Customer acknowledges that the amount will be a genuine estimate of costs and expenses incurred by Deluxe Son-Ray Blinds to date.
(D) It is the responsibility of the Customer to ensure that installation can be completed without interruption, in a continuous work flow and on the mutually agreed date. Deluxe Son-Ray Blinds reserves the right to charge the Customer any extra costs incurred by Deluxe Son-Ray Blinds by virtue of interruption including but not limited to additional return to site charges and travel costs. The customer shall be fully responsible to ensure that plumbing, electrical installations and any other installations not specified within this quotation do not foul the product and associated areas. The customer shall be fully responsible for any necessary foundations.
(E) The Customer shall ensure that Deluxe Son-Ray Blinds has clear and free access to the work site at all times to enable them to deliver the product/s intact and to carry out the installation. Deluxe Son-Ray Blinds shall take all due and reasonable care when delivering and installing the product/s in accordance the Terms and Conditions. Deluxe Son-Ray Blinds shall not be liable for any loss or damage to the site unless due to the negligence of Deluxe Son-Ray Blinds.
(F) Where full detailed plans and specifications are not supplied by the Customer at the date of this order, Deluxe Son-Ray Blinds will use standarddesign procedures which will be followed into manufacture and installation.
(A) If the customer fails to comply with any of these Terms and Conditions or being a natural person or persons commits any act of bankruptcy or being a corporation passes a resolution for winding up or liquidation (other than for the purposes of reorganisation or reconstruction) or enters into any composition or arrangement with creditors or if a receiver or manager is appointed for any property or assets of the customer or becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up, or if a Liquidator or Provisional Liquidator is appointed, Deluxe Son-Ray Blinds may, in addition to exercising all or any of its rights against the customer, suspend any further deliveries and immediately recover possession of any products not paid for in accordance with the Terms and Conditions. Deluxe Son-Ray Blinds will not be liable for any loss or damage the Customer suffers as a result of Deluxe Son-Ray Blinds exercising its rights under this Clause.
(B) If a Customer cancels or alters any order or part order for any product at any time after Deluxe Son-Ray Blinds has received the order then Deluxe Son-Ray Blinds reserves the right to charge to the Customer the cost of any product/s, materials, paints or finishes already acquired for the order together with cost oflabour and tooling expended to the date of such cancellation or alteration and a cancellation fee of $350.00 plus GST, where an order has already been site measured. This is a genuine estimate of costs and expenses incurred by Deluxe Son-Ray Blinds to date.
12. Retention No retention will be entered into for any contract under $100,000.00 (one hundred thousand dollars).
13. Personal Property Securities Act 2009 (“PPSA”)
(A) The Customer acknowledges and agrees that:
(i) This agreement constitute a security agreement for the purposes of the PPSA and creates a registrable security interest under the PPSA in all materials supplied or will be supplied by Deluxe Son-Ray Blinds to the Customer;
(ii) Deluxe Son-Ray Blinds has the right to register a financing statement under the PPSA with respect to the security interest created by this agreement;
(iii) if Deluxe Son-Ray Blinds registers a security interest under the PPSA, Deluxe Son-Ray Blinds may exercise any or all remedies afforded to it as a secured party, without prejudice to any other rights or remedies arising out of a breach by the Customer of any agreement with Deluxe Son-Ray Blinds; and
(iv) The materials supplied or will be supplied by Deluxe Son-Ray Blinds to the Customer are collateral for the purposes of the PPSA.
(B) The Customer waives any right the Customer has under the PPSA to receive notice in relation to registration events.
(C) The Customer and Deluxe Son-Ray Blinds agree that neither party will disclose information of the kind specified under Section 275(1) of the PPSA.
(D) Deluxe Son-Ray Blinds may elect, at its absolute discretion and at any time that any section of the PPSA specified in Section 115 will not apply to the extent permitted by Section 115.
(E) This clause shall survive the Termination of the Contract.
14. Privacy Act 1988
(A) The Customer hereby acknowledges that:
(i) Deluxe Son-Ray Blinds collects personal information such as contact details, bank account details, insurance details and credit card details and holds such information for seven years. The purpose of the collection of personal information is only for internal use.
(ii) they have been informed by Deluxe Son-Ray Blinds that personal information about them may be disclosed to or acquired from or to a credit reporting agency.
(B) The Customer hereby agrees:
(i) that Deluxe Son-Ray Blinds may contact any trade references or other credit references at any time whether now or in the future for the purpose of assessing credit worthiness.
(ii) To Deluxe Son-Ray Blinds receiving from any other credit provider or providing to any credit provider any information whether by way of report record or otherwise relating to credit worthiness for the purposes of exchanging information, assessing credit worthiness and notification of default at any time whether now or in the future.
(iii) To Deluxe Son-Ray Blinds obtaining from a credit reporting agency a credit report on the Customer for the purposes of assessing any credit application and the Customer further consents to Deluxe Son-Ray Blinds obtaining such reports from time to time for the purposes of assessing credit worthiness during the continuance of credit provision.
(iv) To Deluxe Son-Ray Blinds obtaining from a business which provides credit information a report or information in relation to the Customer’s commercial credit worthiness or commercial dealings and using such information for the purpose of assessing the Customer’s application for credit.
(v) That, in the event of default of payment of any of their debts, Deluxe Son-Ray Blinds may disclose all information relating to the Customer’s account to its collection agency for the purpose of receiving any or all amounts outstanding.
15. Intellectual Property Where Deluxe Son-Ray Blinds has designed, drawn, written plans or created any products for the Customer, then the copyright in such shall remain vested in Deluxe Son-Ray Blinds, and shall only be used by the Customer with Deluxe Son-Ray Blinds’ consent. 16. Director’s Guarantee If the Customer is a company,
(A) the Director/s of the Customer certify that they have read and understood these terms and will personally guarantee the performance of the Customer’s obligations under this document.
(B) In the event that the guarantors are not directors of the company customer then the guarantors certify that they have received independent finance and legal advice prior to signing this personal guarantee.
(C) Deluxe Son-Ray may exercise its rights under this guarantee at any time and guarantor shall pay the amount of any indebtedness of the Customer forthwith upon demand by Deluxe Son-Ray. It is not a condition precedent to the issue of such demand that Deluxe Son-Ray shall have exercised or exhausted its legal rights against the customer.
(A) If any clause or part thereof of these Terms and Conditions is invalid or not enforceable in accordance with its terms, all other terms or parts thereof which are self-sustained and capable of separate enforcement without regard to the invalid or unenforceable clause or part thereof is and will continue to be valid and enforceable in accordance with its term.
(B) The Customer agrees that these Terms and Conditions is governed by and construed in accordance with the laws of New South Wales and the Customer and Deluxe Son-Ray Blinds submits to the non-exclusive jurisdiction of the Courts of New South Wales.
(C) Subject to other clauses in these Terms and Conditions and implied provisions, Deluxe Son-Ray Blinds shall not be liable whatsoever to the Customer for any indirect, consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Deluxe Son-Ray Blinds of these Terms and Conditions. In the alternative, Deluxe Son-Ray Blinds’ liability shall be limited to damages not exceeding the contract sum of the order.
(D) Deluxe Son-Ray Blinds may assign all or any part of its rights and obligations without the Customer’s consent.
(A) The Customer agrees and that is has read and agrees to be bound by the Product Warranty as displayed on the Deluxe Son-Ray Blinds website (or equivalent) at the time of entering into this Agreement with deluxe Son-Ray Blinds.
(B) Any warranty or product guarantee advertised or offered by Deluxe Son-Ray Blinds does not extend to the fading of any of the products and does not extend to damage caused by accidents, lack of care or misuse or abuse of the product or general wear and tear.