The whole of the Agreement between Alliance Windows Pty. Ltd. (ABN 50 600 434 722) (“Alliance Windows”) and the Applicant referred to in the Credit Application or otherwise the purchaser of the Goods (“Customer”) are those set out in these terms and conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (“Terms”). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By receiving delivery and/or supply of all or a portion of the goods, materials and/or parts and/or labour and/or services supplied by Alliance Windows under these Terms (“Goods”), the Customer shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all others.
2 Credit Terms
2.1 Payment is due on or prior to thirty (30) days to approved credit account holders from the date of invoice rendered in respect of the supply of the Goods unless otherwise stated in writing by Alliance Windows. All other payment terms as stated on accepted quotation.
2.2 Alliance Windows’ express or implied approval for extending credit to the Customer may be revoked or withdrawn by Alliance Windows at any time.
2.3 Alliance Windows is entitled to set-off against any money owing to the Customer amounts owed to Alliance Windows by the Customer on any account whatsoever.
2.4 Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 13, and then to principal
3 Quotations and Pricing
3.1 Prices charged for Goods will be according to a current quotation for those Goods. Otherwise, they will be determined by Alliance Windows by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). Alliance Windows will use its best endeavours to notify the Customer of price changes but bears no liability in respect of this.3.2 Any quotation by Alliance Windows shall not constitute an offer. Quotations will remain valid for the period stated in the quotation or otherwise for thirty (30) days from the date of the quotation.
3.3 Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature.
3.4 Unless otherwise specified by Alliance Windows, the prices exclude:
3.4.1 Any statutory tax, including any GST, duty or impost levied in respect of the Goods and which has not been allowed for by Alliance Windows in calculating the price.
3.4.2 Costs and charges in relation to insurance, packing (other than the standard packing of Alliance Windows), crating, delivery (whether by road, rail, ship or air) and export of the Goods.
4 Delivery and Supply
4.1 Any times quoted for delivery and/or supply are estimates only and Alliance Windows shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Goods, by reason of any delay in delivery/supply or dispatch. Alliance Windows reserves the right to stop supply at any time if the Customer fails to comply with the Terms.
4.2 Alliance Windows may refuse to supply any order by the Customer for Goods in its absolute discretion and may make acceptance of an order conditional upon it receiving a satisfactory credit assessment of the Customer.
4.3 If the Customer directs that delivery of the Goods be staggered over different times or to different addresses from those specified in the order, then the Customer: –
4.3.1 shall be liable for any additional cost, charge and expense incurred by Alliance Windows in complying with the Customer’s direction.
4.3.2 shall pay for the whole of the invoiced value of the Goods notwithstanding the staggered deliveries.
4.3.3 such action shall be deemed to be delivery to the Customer.
4.4 The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer’s premises or the address specified in the order, or when Alliance Windows notifies the Customer that the Goods are available for collection.
4.5 If the Customer is unable or fails to accept delivery of the Goods, Alliance Windows may deliver it to a place of storage nominated by the Customer and, failing such nomination, to a place determined by Alliance Windows. Such action shall be deemed to be delivery to the Customer. The Customer shall be liable for all cost, charge and expense incurred by Alliance Windows on account of storage, detention, double cartage/delivery or similar causes.
5.1 Until full payment has been made for all Goods, and any other sums in any way outstanding from the Customer to Alliance Windows from time to time: –
5.1.1 All sums outstanding become immediately due and payable by the Customer to Alliance Windows if the Customer defaults in paying any other sums due to Alliance Windows, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these Terms.
5.1.2 The property in the Goods shall not pass to the Customer and the Customer shall hold the Goods as bailee for Alliance Windows (returning the same to Alliance Windows on request). The Goods shall nevertheless be at the risk of the Customer from the time of delivery/supply and the Customer must insure the Goods from the time of delivery/supply.
5.1.3 The Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of Alliance Windows provided that there shall be no right to bind Alliance Windows to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by the Customer for the Goods (or any portion of them) shall be held on trust for Alliance Windows pursuant to the fiduciary relationship.
5.1.4 In the event that the Customer incorporates or transforms the Goods (or any portion of them) into any other goods or products produced by the Customer (or a third party), then the Customer must hold a proportion of any payment (“relevant proportion”) received by the Customer for such goods or products on trust for Alliance Windows. The Customer expressly acknowledges that the relevant proportion shall be equal to the dollar value of the Goods incorporated or transformed and the Customer further acknowledges that any part payment (not exceeding the relevant proportion) received by the Customer for such goods or products is received as payment first of the relevant proportion.
5.1.5 Alliance Windows is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods without liability for trespass or any resulting damage.5.2 In addition to any lien to which Alliance Windows may, by statute or otherwise, be entitled, Alliance Windows shall in the event of the Customer’s insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in Alliance Windows’ possession (although all or some of such property or goods may have been paid) for the unpaid price of any Goods sold or delivered to the Customer under this or any other contract.
6 Returns, Cancellations and Claims
6.1 The Customer shall not return any Goods to Alliance Windows without obtaining prior authorisation from Alliance Windows. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including product descriptions, quantity, date of return and the Customer’s name and address must also be enclosed. Freight charges must be paid by the Customer. All Goods must be returned in the original packaging and the Customer shall be responsible for all damage incurred during return shipment. A credit note will be issued by Alliance Windows only after Goods returned are either collected by Alliance Windows authorised representative or agent or returned to it by the Customer as set out above. The Customer shall not deduct the amount of any anticipated credit from any payment due to Alliance Windows but must await receipt of a credit note.
6.2 If Alliance Windows accepts the return of any Goods that have been ordered, Alliance Windows may charge the Customer fifteen per cent (15%) of the invoice price as a handling fee with freight costs and risk remaining the responsibility of the Customer.
6.3 No cancellations or partial cancellation of an order by the Customer shall be accepted by Alliance Windows unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Alliance Windows, will indemnify Alliance Windows against all loss, without limitation. Cancellation will not be accepted on goods that are not regular stock which are in the process of manufacture or ready for shipment.
6.4 All complaints, claims, or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with the Customer’s purchase order must be submitted by the Customer to Alliance Windows in writing within seven (7) business days of the date of the invoice rendered for the supply of the Goods. Otherwise, the Customer shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Customer’s purchase order.
7 Personal Property Security Interest
7.1 For the purpose of this clause, words and phrases starting with a capital letter shall have the respective meanings given to them under, or in the context of the Personal Property Securities Act 2009 (“PPSA”).
7.2 The Customer grants Alliance Windows a Security Interest in the goods supplied as Commercial Property, more particularly described as Other Goods (a relevant sub-classification of collateral described in the regulations pursuant to section 20(4) of the PPSA) and their Proceeds to secure the obligation of the Customer to pay the purchase price of the goods and any other obligations of the Customer to Alliance Windows under this contract (together the “Indebtedness”) and, where the goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the goods present and after acquired by the Customer, of which the goods form part, to the extent required to secured the Indebtedness.
7.3 As and when required by Alliance Windows the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable Alliance Windows to register a Financing Statement or a Financing Change Statement and generally to obtain, maintain, register and enforce Alliance Windows’ Security Interest in respect of the goods supplied, in accordance with the PPSA.
7.4 The Customer shall not change its name without first notifying Alliance Windows of the new name not less than 7 days before the change takes effect.
7.5 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Customer on more than one invoice/order, any payments received from the Customer shall be deemed to be made by the Customer and applied by Alliance Windows in the following order:
7.5.1 To any obligation owed by the Customer to Alliance Windows which is unsecured, in the order in which the obligations were incurred;
7.5.2 To any obligations that are secured, but not by a Purchase Money Security Interest, in the order in which those obligations were incurred;
7.5.3 To obligations that are secured by a Purchase Money Security Interest, in the order in which those obligations were incurred.
7.6 Until the Customer has paid all money owing to Alliance Windows, the Customer shall at all times ensure that:
7.6.1 All goods supplied by Alliance Windows, while in the Customer’s possession, can be readily identified and distinguished, and/or
7.6.2 All Proceeds (in whatever form) that the Customer received from the sale of any of the goods are readily identifiable and traceable.
7.7 Where the goods are purchased by the Customer and held as Inventory, nothing in this clause shall prevent the Customer from selling or leasing and delivering the goods in the ordinary course of the Customer’s business. Otherwise, until the Customer has paid all money owing to Alliance Windows, the Customer shall not sell or grant a Security Interest in the goods without Alliance Windows’ written consent.
7.8 The parties agree to contract out of the PPSA in accordance with Section 115 of the PPSA to the extent that Section 115 applies for the benefit of, and does not impose a burden on, Alliance Windows. For the avoidance of doubt, the parties do not contract out of Section 123. The Customer waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement registered by or on behalf of Alliance Windows in respect of the Security Interest created by these Terms.
7.9 Alliance Windows is irrevocably authorised to enter any premises where the goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the goods and seize the goods in accordance with the PPSA without liability for trespass or any resulting damage.
8 Privacy Act 1988 (“Privacy Act”)
To enable Alliance Windows to assess the Customer’s application for credit, the Customer authorises Alliance Windows: -8.1 To obtain from a credit reporting agency, a consumer or commercial credit report containing personal information about the Customer and its guarantors pursuant to Section 18K (1) of the Privacy Act; and
8.2 To obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities; and
8.3 To give to a credit reporting agency information including identity particulars and application details,
AND in accordance with Section 18N (1) of the Privacy Act the Customer authorises Alliance Windows to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency, information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.
The Customer understands that information can be used for the purposes of assessing its application for credit (Section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.
The Customer must notify Alliance Windows in writing within seven (7) days of: –
9.1 Any alteration of the name or ownership of the Customer.
9.2 The issue of any legal proceedings against the Customer.
9.3 The appointment of any trustee in personal insolvency, provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
9.4 Any change in the ownership of the business of the Customer. The Customer agrees that it shall be liable to Alliance Windows for all Goods supplied to the new owner by Alliance Windows until notice of any such change is received.
10.1 No warranties except those implied by law and cannot be excluded, or that are expressly provided in writing by Alliance Windows, are given by Alliance Windows in respect of Goods supplied. Where it is lawful to do so, the liability of Alliance Windows for a breach of a condition or warranty is limited to the repair or replacement of the Goods, the supply of equivalent Goods, the payment of the cost of repairing or replacing the Goods or acquiring equivalent Goods, as determined by Alliance Windows.
10.2 The Customer acknowledges and warrants that it has relied on its own skill and judgment or, alternatively, on the skill and judgment of tradesmen and professional advisers retained by it to provide advice and assistance on the suitability of the Goods for specific purposes and procedures and, in this respect, shall indemnify Alliance Windows from and against any suit, claim, demand or compensation which, but for these Terms, the Customer may have had against Alliance Windows.
10.3 The Customer warrants to Alliance Windows that it is purchasing Goods as the principal and not as an agent.
10.4 Where Alliance Windows gives any advice or approval concerning the plans or specifications or concerning any other matter in relation thereto, such advice or approval is given subject to the condition that Alliance Windows shall be under no liability of any kind in connection therewith.
10.5 Any drawings, descriptions, weights, or dimensions submitted by Alliance Windows are approximate only and intended merely as general guide and Alliance Windows will not be liable for any error or omission therein or with regard thereto.
10.6 Alliance Windows obligation under this clause to repair or replace such goods is subject also to the Customer having complied with all instructions given by Alliance Windows concerning the manner in which the goods should be installed and used.
10.7 Alliance Windows reserves the right to change components of products if results of further research and development require this.
10.8 The Customer acknowledges that Alliance Windows is not in the business of supplying advisory services and that any advice or other information provided by Alliance Windows is done so gratuitously.
11 Intellectual Property
11.1 Alliance Windows shall not be liable in respect of any claim that may be made against Alliance Windows for infringement of letters patent or registered design or other intellectual property which may arise as a result of Alliance Windows carrying out instructions given by the Customer and the Customer agrees to indemnify and keep indemnified Alliance Windows from and against all or any such claims and against all costs, damages and expenses incurred by or recovered against Alliance Windows in respect of any such claims.
11.2 Alliance Windows reserves the right to alter the shape, dimensions, materials, weights and any other particulars of goods which appear or are stated in any brochures, catalogues, drawings, illustrations or advertisements relating to the goods and any description of goods contained in the same are given by way of identification only and it is acknowledged that the use of any such description will not constitute a sale by description. Goods supplied are not supplied by reference to sample.
11.3 If the Customer shall sell any of the goods purchased from Alliance Windows he acknowledges and agrees that he does so under the trademarks or trade names registered by Alliance Windows, and the Customer must ensure that such goods are installed only by Alliance Windows accredited installers.
12 Force Majeure
Alliance Windows shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Goods impossible, where all money due to Alliance Windows shall be paid immediately and, unless prohibited by law, Alliance Windows may elect to terminate the Agreement.
If the Customer fails to pay Alliance Windows any money payable by the Customer:
13.1 Alliance Windows may in its absolute discretion charge the Customer, and the Customer must pay, interest on the overdue amounts at the rate of 15% per annum calculated from the due date with such interest accruing day to day; and1
3.2 the Customer must indemnify Alliance Windows against, and reimburse Alliance Windows for, all costs, stamp duty, debt collection agency costs and commissions, legal expenses on a solicitor-client basis and other expenses and costs incurred by Alliance Windows in connection with the Customer’s default and any recovery or attempted recovery process.
14 Equitable Charge
The Customer charges in favour of Alliance Windows all of the Customer’s estate, rights, title and interest in, to, under or derived from any land owned either now or in the future by the Customer to secure the performance by the Customer of its obligations under these Terms (including, but not limited to, the payment of any money).
15 Failure to Act
Alliance Windows failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or Alliance Windows failure to exercise any right or remedy available under these Terms or at law, or Alliance Windows failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of Alliance Windows’ right to demand timely payment of future obligations or strict compliance with the Terms.
16 Legal Construction
16.1 These Terms shall be governed by and interpreted according to the laws of Western Australia, and Alliance Windows and the Customer consent and submit to the jurisdiction of the Courts of the State of Supply.16.2 Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason, that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.
17.1 The Customer will not be entitled to set off against, or deduct from any money owed to Alliance Windows, any sums owed or claimed to be owed to the Customer by Alliance Windows nor to withhold payment of any invoice because part of that invoice is disputed.
17.2 Alliance Windows may licence or sub-contract all or any part of its rights and obligations without the Customer’s consent.