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Advantage Double Glazing Perth– Terms & Conditions of Trade
1.1 “Seller” shall mean Advantage double
glazing Perth and its successors and assigns.
1.2 “Buyer” shall mean the Buyer or
any person acting on behalf of and with the authority
of the Buyer.
1.3 “Guarantor” means that person (or
persons), or entity who agrees herein to be liable for
the debts of the Buyer on a principal debtor basis.
1.4 “Goods” shall mean goods supplied
by the Seller to the Buyer (and where the context so
permits shall include any supply of Services as hereinafter
1.5 “Services” shall mean all services
supplied by the Seller to the Buyer and includes any
advice or recommendations (and where the context so
permits shall include any supply of Goods as defined
1.6 “Price” shall mean the cost of the
Goods as agreed between the Seller and the Buyer subject
to clause 4 of this contract.
Any instructions received by the Seller
from the Buyer for the supply of Goods and/or the Buyer’s
acceptance of Goods supplied by the Seller shall constitute
acceptance of the terms and conditions contained herein.
2.2 Where more than one Buyer has entered
into this agreement, the Buyers shall be jointly and
severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and
conditions by the Buyer 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irrevocable and can only be rescinded in accordance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 Seller.
2.4 None of the Seller’s agents or representatives
are authorised to make any representations, statements,
conditions or agreements not expressed by the manager
of the Seller in writing nor is the Seller bound by
any such unauthorised statements.
2.5 The Buyer undertakes to give the
Seller not less than fourteen (14) days prior written
notice of any proposed change in the Buyer’s name and/or
any other change in the Buyer’s details (including but
not limited to, changes in the Buyer’s address, facsimile
number, or business practice).
3.1 The Goods are as described on the
invoices, quotation, work authorisation or any other
work commencement forms as provided by the Seller to
4. Price And Payment
4.1 At the Seller’s sole discretion
the Price shall be either; (a) as indicated on invoices
provided by the Seller to the Buyer in respect of Goods
supplied; or (b) Seller’s quoted Price (subject to clause
4.2) which shall be binding upon the Seller provided
that the Buyer shall accept in writing the Seller’s
quotation within thirty (30) days.
4.2 The Seller may by giving notice
to the Buyer at any time up to seven (7) days before
delivery increase the Price of the Goods to reflect
any increase in the cost to the Seller beyond the reasonable
control of the Seller. (including, without limitation,
foreign exchange fluctuations, taxes and duties, provisions
of any Acts, By-Law, Order or Regulation of any parliament,
municipality or local authority enacted after the date
of contract between the Buyer and Seller and the cost
of labour, materials and other manufacturing costs).
4.3 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.
4.4 At the Seller’s sole discretion,
payment for approved Buyer’s shall be due Thirty (30)
days following the date of Invoice in which a statement
or invoice is posted to the Buyer’s address or address
4.5 Payment will be made by in advance
(deposit), cash on delivery, or by bank cheque, or by
direct deposit, or by any other method as agreed to
between the Buyer and the Seller.
4.6 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
4.7 If any invoice is not paid
within 2 weeks all guarantees are void
5. Delivery Of Goods / Services
5.1 Delivery of the Goods shall be made
to the Buyer’s address. The Buyer 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 Buyer at the Seller’s address.
5.2 Delivery of the Goods to a carrier,
either named by the Buyer or failing such naming to
a carrier at the discretion of the Seller for the purpose
of transmission to the Buyer, is deemed to be a delivery
of the Goods to the Buyer.
5.3 The Seller 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.
5.4 Delivery of the Goods to a third
party nominated by the Buyer is deemed to be delivery
to the Buyer for the purposes of this agreement.
5.5 The Buyer 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;
(a) such discrepancy in quantity shall
not exceed 25%, and
(b) the Price shall be adjusted pro
rata to the discrepancy.
5.6 The failure of the Seller to deliver
shall not entitle either party to treat this contract
5.7 The Seller shall not be liable for
any loss or damage whatever due to failure by the Seller
to deliver the Goods (or any of them) promptly or at
6.1 If the Seller retains property in
the Goods nonetheless, all risk for the Goods passes
to the Buyer on delivery.
6.2 If any of the Goods are damaged
or destroyed prior to property in them passing to the
Buyer, the Seller is entitled, without prejudice to
any of its other rights or remedies under these Terms
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 Seller is sufficient
evidence of the Seller’s rights to receive the insurance
proceeds without the need for any person dealing with
the Seller to make further enquiries.
7. Buyer’s Disclaimer
7.1 The Buyer 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 Seller and
the Buyer acknowledges that he buys the Goods relying
solely upon his own skill and judgement.
8. Defects / Returns
8.1 The Buyer shall inspect the Goods
on delivery and shall within seven (7) days of delivery
notify the Seller of any alleged defect, shortage in
quantity, damage or failure to comply with the description
or quote. The Buyer shall afford the Seller an opportunity
to inspect the Goods within a reasonable time following
delivery if the Buyer believes the Goods are defective
in any way. If the Buyer 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.
8.2 For defective Goods, which the Seller
has agreed in writing that the Buyer is entitled to
reject, the Seller’s liability is limited to either
(at the Seller’s discretion) replacing the Goods or
repairing the Goods provided that the Buyer has complied
with the provisions of clause 8.1.
8.3 No Goods will be accepted for refund
or credit unless such refund or credit is approved in
writing by an authorised officer of the Seller prior
to the Goods being returned to the Seller’s warehouse.
8.4 A re-stocking fee of 10% of the
value of the returned Goods will be charged for Goods
returned after seven (7) days of delivery.
Upvc 10 years warranty against fading or discolouration, double glazed units if broken down will be replaced free of charge for the first 12 months then, free of charge for the next 5 years but subject to a service charge of min $100. Hardware free of charge for 12 months, then free of charge for 5 years but subject to a service charge of min $100.00. Adjustments, free of charge for 12 months then subject to a service charge of min $100.00.
9.1 For Goods not manufactured by the
Seller, the warranty shall be the current warranty provided
by the manufacturer of the Goods. The Seller shall not
be bound by nor responsible for any term, condition,
representation or warranty given by the manufacturer
of the Goods.
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 The Buyer warrants that all designs
or instructions to the Seller will not cause the Seller
to infringe any patent, registered design or trademark
in the execution of the Buyer’s order.
12. Default & Consequences of Default
12.1 Interest on overdue invoices shall
accrue from the date when payment becomes due daily
until the date of payment at a rate of 2.5% compounding
per calendar month and shall accrue at such a rate after
as well as before any judgement.
12.2 If the Buyer defaults in payment
of any invoice when due, the Buyer shall indemnify the
Seller from and against all the Seller’s costs and disbursements
including on a solicitor and own client basis and in
addition all of the Seller’s nominees costs of collection.
12.3 Without prejudice to any other
remedies the Seller may have, if at any time the Buyer
is in breach of any obligation (including those relating
to payment), the Seller may suspend or terminate the
supply of Goods to the Buyer and any of its other obligations
under the terms and conditions. The Seller will not
be liable to the Buyer for any loss or damage the Buyer
suffers because the Seller exercised its rights under
12.4 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.
12.5 In the event that: (a) any money
payable to the Seller becomes overdue, or in the Seller’s
opinion the Buyer will be unable to meet its payments
as they fall due; or
(b) the Buyer 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
(c) a receiver, manager, liquidator
(provisional or otherwise) or similar person is appointed
in respect of the Buyer or any asset of the Buyer, then
without prejudice to the Seller’s other remedies at
(i) the Seller shall be entitled to
cancel all or any part of any order of the Buyer which
remains unperformed in addition to and without prejudice
to any other remedies; and (ii) all amounts owing to
the Seller shall, whether or not due for payment, immediately
become payable inaddition to the interest payable under
clause 12.1 hereof.
13.1 It is the intention of the seller
and agreed by the Buyer that property in the Goods shall
not pass until:
(a) The Buyer has paid all amounts owing
for the particular Goods, and
(b) The Buyer has met all other obligations
due by the Buyer to the Seller in respect of all contracts
between the Seller and the Buyer, and that where practicable
the Goods shall be kept separate until the Seller shall
have received payment and all other obligations of the
Buyer are met.
13.2 Receipt by the Seller 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 Seller’s ownership
of rights in respect of the Goods shall continue.
13.3 It is further agreed that:
(a) Until such time as ownership of
the Goods shall pass from the Seller to the Buyer the
Seller may give notice in writing to the Buyer to return
the Goods or any of them to the Seller. Upon such notice
the rights of the Buyer to obtain ownership or any other
interest in the Goods shall cease.
(b) The Seller shall have the right
of stopping the Goods in transit whether or not delivery
has been made; and
(c) If the Buyer fails to return the
Goods to the Seller then the Seller or the Seller’s
agent may enter upon and into land and premises owned,
occupied or used by the Buyer, or any premises as the
invitee of the Buyer, where the Goods are situated and
take possession of the Goods.
(d) The Buyer is only a bailee of the
Goods and until such time as the Seller has received
payment in full for the Goods then the Buyer shall hold
any proceeds from the sale or disposal of the Goods
on trust for the Seller.
(e) The Buyer shall not deal with the
money of the Seller in any way which may be adverse
to the Seller.
(f) The Buyer 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 Seller.
(g) The Seller may require payment of
the Price or the balance of the Price due together with
any other amounts due from the Buyer to the Seller arising
out of these terms and conditions, and the Seller may
take any lawful steps to require payment of the amounts
due and the Price.
(h) The Seller can issue proceedings
to recover the Price of the Goods sold notwithstanding
that ownership of the Goods may not have passed to the
(i) Until such time that ownership in
the Goods passes to the Buyer, if the Goods are so converted,
the parties agree that the Seller 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 Seller
may have howsoever:
(a) Where the Buyer and/or the Guarantor
(if any) is the owner of land, realty or any other asset
capable of being charged, both the Buyer 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 Seller or the Seller’s nominee
to secure all amounts and other monetary obligations
payable under the terms and conditions. The Buyer and/or
the Guarantor acknowledge and agree that the Seller
(or the Seller’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.
(b) Should the Seller elect to proceed
in any manner in accordance with this clause and/or
its sub-clauses, the Buyer and/or Guarantor shall indemnify
the seller from and against all the Seller’s costs and
disbursements including legal costs on a solicitor and
own client basis.
(c) To give effect to the provisions
of clause [14.1 (a) and (b)] inclusive hereof the Buyer
and/or the Guarantor (if any) do hereby irrevocably
nominate constitute and appoint the Seller or the Seller’s
nominee as the Buyer’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 Seller and/or the Seller’s nominee shall think fit
in his/her/its/their absolute discretion against the
joint and/or several interest of the Buyer and/or the
Guarantor in any land, realty or asset in favour of
the Seller and in the Buyer’s and/or Guarantor’s name
as may be necessary to secure the said Buyer’s and/or
Guarantor’s obligations and indebtedness to the Seller
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 Seller’s
absolute discretion which may be necessary or advantageous
to give effect to the provisions of this clause.
15.1 The Seller may cancel these terms
and conditions or cancel delivery of Goods at any time
before the Goods are delivered by giving written notice.
The Seller shall not be liable for any loss or damage
whatever arising from such cancellation.
15.2 At the Sellers sole discretion
the Buyer may cancel delivery of Goods. Unless the Buyer
cancels delivery of Goods within two (2) days of placing
the order for the Goods with the Seller, the Buyer shall
be liable for any costs incurred by the Seller up to
the time of cancellation.
16. Privacy Act 1988
16.1 The Buyer and/or the Guarantor/s
agree for the Seller to obtain from a credit-reporting
agency a credit report containing personal credit information
about the Buyer and Guarantor/s in relation to credit
provided by the Seller.
16.2 The Buyer and/or the Guarantor/s
agree that the Seller may exchange information about
Buyer 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:
(a) To assess an application by Buyer;
(b) To notify other credit providers
of a default by the Buyer;
(c) To exchange information with other
credit providers as to the status of this credit account,
where the Buyer is in default with other credit providers;
(d) To assess the credit worthiness
of Buyer and/or Guarantor/s.
16.3 The Buyer consents to the Seller
being given a consumer credit report to collect overdue
payment on commercial credit (Section 18K(1)(h) Privacy
16.4 The Buyer agrees that Personal
Data provided may be used and retained by the Seller
for the following purposes and for other purposes as
shall be agreed between the Buyer andSeller or required
by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and/or Goods
by the Seller, its agents or distributors in relation
to the Services and Goods;
(c) analysing, verifying and/or checking
the Buyer’s credit, payment and/or status in relation
to provision of Services/Goods;
(d) processing of any payment instructions,
direct debit facilities and/or credit facilities requested
by Buyer; and (e) enabling the daily operation of Buyer’s
account and/or the collection of amounts outstanding
in the Buyer’s account in relation to the Services and
16.5 The Seller may give, information
about the Buyer to a credit reporting agency for the
(a) to obtain a consumer credit report
about the Buyer; and/or
(b) allow the credit reporting agency
to create or maintain a credit information file containing
information about the Buyer.
17.1 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
17.2 All Goods supplied by the Seller
are subject to the laws of Western Australia and the Seller takes
no responsibility for changes in the law which affect
the Goods supplied.
17.3 The Seller shall be under no liability
whatever to the Buyer for any indirect loss and/or expense
(including loss of profit) suffered by the Buyer arising
out of a breach by the Seller of these terms and conditions.
17.4 In the event of any breach of this
contract by the Seller the remedies of the Buyer shall
be limited to damages. Under no circumstances shall
the liability of the Seller exceed the Price of the
17.5 The Buyer shall not set off against
the Price amounts due from the Seller.
17.6 The Seller may license or sub-contract
all or any part of its rights and obligations without
the Buyer’s consent.
17.7 The Seller 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 seller
notifies the Buyer of such change.
17.8 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
18.1 Installation does not include scaffolding,
cranes, forklifts or any machinery which may be needed
to access, secure the site or convey materials ie: windows
and doors. It is the responsibility of the customer
to supply these machines as needed and it is highly
recommended that these aspects of the installation are
thoroughly discussed before placement of an order.
18.2 All council approvals, building
regulations etc. are the responsibility of the client
18.3 Where installation is in a renovated
house/building, Advantage Double Glazing takes no responsibility
if the integral construction of the building in the
way of walls, ceilings and lintels etc is found to be
damaged, unsafe or too weak to support the new windows
and doors. It is the sole responsibility of the client
to rectify this through bringing in other trades or
engineers if needed.
18.4 Care will be taken when removing
old windows and doors and Advantage Double Glazing will
repair all plaster, cement, brickwork, sills etc if
damaged during the removal of old and installation of
new windows and doors.
18.5 Advantage double glazing will supply
dust sheets to the immediate installation area, but
will not be responsible for cleaning dust blown through
out the property during installation.
18.6 Old doors and windows will be classed
as non salvageable and will be damaged in the process
of removal. Any materials required to be retained
by the Client will need to be removed in advance to
work commencing by the client.
18.7 Any repainting/ decorating/ tiling
is the responsibility of the client.
18.8 Advantage double glazing are not
responsible for removal or replacement of existing services,
fixtures and fittings, blinds, curtains etc. They are
the absolute responsibility of the client.
18.8 The client must provide a clear
area of at least 1.5m around the window/door to be fitted
and all electrical items, house furnishings, trinkets,pets
and children to be the absolute responsibility of the
client and be kept away from any work area or means
of access to the working area.
18.9 Installation date to be arranged
between client and advantage and variable for either
party, with 7 working days notice.