Terms and Conditions of Sale
1 DEFINITIONS AND INTERPRETATION
1.1 “ATW” means All Timber Windows & Doors ABN 92006632426 and its subsidiaries.
1.2 “Business Day” means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made.
1.3 “Customer” means the person to whom the quotation is addressed and/or any person who accepts it.
1.4 “Contract” means the contract for the sale of the goods and supply of the services specified in the order and subject to these terms and conditions of sale.
1.5 “Goods” means the goods the subject of the quotation.
1.6 “Order” means the acceptance of the quotation in whole or in part by the customer.
1.7 “Person” includes companies.
1.8 “Quotation” means the document issued by ATW outlining its estimate of the cost for the provision of specified goods and services.
1.9 “Services” means the services, if any, to be supplied with the goods and the subject of the quotation.
1.10 Headings are for convenience only and do not form part of these terms of sale.
1.11 “Domestic Building Act” means
- The home building act 1989 (NSW)
- The Domestic Building Contracts Act 2000 (QLD)
- The Domestic Building Contracts 1995 VIC)
- The home Building Contracts Act 1991 (WA)
- The Building Work Contractors Act 1995 (SA)
- The Building Act 2016 (TAS)
- The Building Act 2004 (ACT)
- The Building Act (NT)
2 PLACING ORDER
2.1 The customer who accepts the Quotation warrants he is duly authorised agent of the customer for the purpose of placing the order. An order is deemed to have been accepted by the customer upon the payment of a deposit not less than 50% of the value of the order. By accepting the order the customer is deemed to have read and understood ATW’s terms & conditions of sale.
2.2 The customer acknowledges that ATW has no obligation to agree to provide, or continue to provide any credit facilities to the customer. The customer is not entitled to any credit facilities until it receives notice from ATW to the effect and ATW may at any time by notice to the customer reduce, vary or terminate any such credit facilities. Any credit limit that may apply from time to time in respect of credit facilities is for the administrative convenience and solely for the benefit of ATW and such credit limit does not constitute a term of this agreement nor of any deed of guarantee, indemnity and charge in respect to the obligations of the customer.
(A) Should ATW exercise its rights under clause 2.2 to reduce, vary or terminate any such credit facilities, ATW may refuse to deliver further goods to the customer unless such goods are paid by the customer before delivery?
2.3 The customer must check all details of the goods in the quotation and/or form in relation to quantities, description, sizes, dimensions, colour, glass (if not clear float)and accessories. Unless otherwise presented by ATW, to the extent permitted by law, ATW will not be liable for any incorrect details of the goods in relation to quantities, description, sizes, dimensions, colour, glass (If not clear float) and accessories.
3 TERMS OF PAYMENT
3.1 Payment is subject to any terms agreed between ATW and the customer in writing. In the absence of such written agreement, but subject always to any restrictions imposed by legislation, the customer must make payment in full 5 days prior to the time of dispatch of goods.
3.2 The customer is not entitled to defer, offset or withhold payment in whole or in part for any reason unless agreed to by ATW in writing.
3.3 If at any time monies are overdue, or any trading account the customer maintains with ATW is in arrears, then at the option of ATW (but subject to any restrictions imposed by legislation) the whole account balances shall become immediately due by the customer.
3.4 Interest at 12% per annum will be payable on any overdue invoices from the date the invoice became due until the date payment is made.
3.5 The Customer is liable to pay to ATW and ATW may recover in full from the customer all costs, expenses and disbursements incurred and/or payable by ATW (including debt collection agency fees and legal costs on a solicitor/client basis) arising from or as a result of ATW exercising or enforcing or seeking to exercise or enforce a right under these Terms and Conditions or the accompanying Deed of Guarantee, Indemnity and charge and in a particular, in collecting or attempting to collect amounts due to ATW. Such costs expenses and disbursements may be recovered by ATW from the customer as a liquidated debt. ATW may apply payments received from the customer firstly to any costs, expense and disbursements, then to interest and then to other amounts owed.
3.6 Where ATW, in its absolute discretion, determines that any one or more inter-related accounts is non- compliant with the terms of payment under clause 3 of these terms and conditions then ATW may elect to suspend the supply of goods and/or cancel any or all related accounts, whereby invoice’s rendered to all interrelated accounts shall become immediately due and payable to ATW.
4 ABILITY TO SUPPLY
4.1 ATW shall not be liable in any way for failure to deliver the goods and/or supply the services within the stated time and the customer may not reject the goods and/or services nor will they be relieved from any obligation to pay for the goods on account of such failure to deliver within the stated time.
4.2 If for any reason ATW is unable to perform its obligations under the contract, then ATW may at any time by
Notice in writing to the customer, terminate the contract where the contract will be at an end and any deposit money paid by the customer, will be refunded by ATW and save for the recovery of the deposit neither party will have any claim against the other.
5.1 Except for sub-clause 5.2, the prices on the quotation shall remain current for 30 days. ATW reserves the right to vary the prices after lapse of 30 days, the extent permitted by law.
5.2 Quotations given for site glazing will remain valid for a period of 60 days from date of completed manufacture of the goods. ATW reserves the right to vary the charge after the lapse of 90 days, to the extent permitted by law.
5.3 The quoted price is based upon the particular specifications of the goods current at the time of quotation. ATW reserves the right, to the extent permitted by law, to vary the price and the customer agrees to pay such varied price if:
5.4 There is any variation in specification after the order is placed; or
5.5 Additional costs are incurred by ATW from the imposition of a special site allowance, or allowances applying to a project of which ATW was not advised of in writing, before the date of the quotation or where special site allowances that apply to a project have not been allowed for. Such additional costs relating to a new or additional site allowances must be paid for by the customer to ATW as amounts payable in addition to the stated in the agreement.
5.6 The customer is not entitled to make any claim upon ATW if any amounts are outstanding for the
Customer to ATW. The customer is not entitled to set off any amounts against any amounts owed by the customer to ATW unless specifically agreed to by ATW in writing. ATW may at any time set off amounts owed by ATW to the customer against any sums owed by the customer to ATW.
6.1 The customer authorises ATW to deliver goods to the place nominated by the customer and to leave the goods at such place whether or not any person is present to accept delivery. ATW shall not be liable on any basis whatsoever for loss suffered by the customer after delivery to the customers nominated delivery address.
6.2 Delivery of goods shall be deemed to occur when they are handed to the customer or his representative or are delivered to the premises or site or carrier nominated by the customer and the goods shall thereafter be at the customer’s risk.
6.3 The customer agrees to accept delivery of the goods or to make alternative delivery arrangements within seven (7) days of ATW notifying the customer that the goods are available for delivery. To the extent permitted by law, ATW reserves the right at its absolute discretion to charge a storage fee of $35 per day if the customer fails to accept or make alternative arrangements for delivery within seven (7) days of being advised that delivery is ready, a second delivery fee may also be incurred. The customer agrees that such fee is a genuine pre-estimate of damages and not a penalty.
6.4 Written advice to the customer that goods are ready for delivery whether in whole or in part shall constitute a tender of the goods and the terms of payment shall apply. Where the parties have agreed that the customer will advise ATW of a “load date “(being a delivery date), the customer must:
- Give sufficient notice of the load date (being not less than the standard published lead time for the goods to be manufactured and delivered); and
- Ensure that the load date is not more than ninety (90) days after the date of the order. To the extent permitted by law the customer shall be responsible to ATW for any extra cost (which term shall include actual costs and imputed costs for storage, handling or demurrage) incurred by ATW as a result of failure of the customer, to take delivery of the goods at the time and place specified. ATW will be entitled to a lien over the goods until such costs have been paid in full.
6.5 If the customer fails to accept any part of the goods which ATW has despatched in conformity with the contract
And such part of the goods is returned to ATW and re-dispatched subsequently, then ATW may, to the extent
Permitted by law, require the customer to pay on demand a charge equal to double the current delivery
- It is the customer’s responsibility on delivery to ensure that all goods have been delivered/received and that all goods conform to its specifications and requirements. No claims will be accepted for defects ascertainable on delivery in respect of goods not received or not conforming to the customers written specifications and requirements, unless made in writing within seven (7) days after delivery.
7.1 Property in the goods supplied by ATW to the customer will not pass to the customer until the money owing for those goods and any other money owing by the customer to ATW has been paid. The customer in the meantime takes custody of the goods as the fiduciary agent and Bailee of ATW.
7.2 Where the customer does not make payment in respect of specific goods, payment must be treated as having been made first in respect of goods which have passed out of the possession of the customer, and then in respect of whatever goods still in the possession of the ATW elects.
7.3 Until the goods have been paid for in full the customer must store the goods in such a manner as to show clearly that they are the property of ATW.
7.4 The customer irrevocably authorises ATW at any time, to enter any premises (A) upon which the goods are stored to enable ATW to:
- Inspect the goods ; and/or
- If the customer has breached these terms and conditions, reclaim possession of the goods.
- Upon which the customer’s records pertaining to the goods are held to inspect and copy such records.
- The provisions of this clause apply notwithstanding any arrangement between the parties under which ATW or a related body corporate grants the customer credit.
- The right to on-sell, deal or otherwise dispose of the goods in the normal course of trade may be revoked at any time by ATW and shall automatically cease if the customer does not pay ATW, the customer is unable to pay its debts as they fall due.
If the customer ceases or suspends the conduct of its business or threatens to, execution is levied on any of the customers assets, a receiver is appointed over any of the assets on the undertaking of the customer or if a winding up order is made against the customer or if the customer goes into voluntary liquidation (otherwise than for the purpose of the reconstruction or amalgamation) or administration or calls a meeting of, or makes any arrangement or composition with, creditors or commits any act of bankruptcy or where the customer is in default of any of its obligations to ATW, and all amounts immediately become due and payable.
8 CANCELLATION & DEFAULT
8.1 The Contract may be cancelled/varied by the customer only with the written consent of ATW. To the extent by law, ATW may require as a condition of its consent that the customer pay reasonable charges for such cancellation/variation.
8.2 ATW shall be entitled to suspend delivery of the goods or any part thereof and/or terminate the contract if the customer either fails to perform or observe any conditions of the contract including the terms of payment and/or delivery arrangements or if the customer is made bankrupt, has a liquidator, receiver or official manager appointed for all or any part of his assets, or has a winding up order made against them or enters into any contract with creditors or voluntary insolvency administration. Such suspension and/or termination shall be without prejudice to and shall not affect any rights of ATW against the customer prior to this situation.
8.3 Upon termination of the contract by ATW the security deposits (if any) shall be forfeited to ATW and ATW may either sue the customer for breach of contract or resell the goods and any deficiency arising on such resale and all expenses of and incidental to such resale or attempted resale and the customer’s default shall be recoverable by ATW from the customer as liquidated damages. ATW may retain any monies paid by the customer on account of the contract other than the security deposit forfeited, as security for any damages awarded to ATW for the customers default.
9 WARRANTY AND GUARANTEES
Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
- to cancel your service contract with us; and
- to a refund for the unused portion, or to compensation for its reduced value
You are also entitled to be compensated for any other reasonably foreseeable loss or damage.
If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
9.1 Subject to the conditions below, we guarantee goods of our manufacture to be free from defects that would render them unserviceable for the use for which it is intended and to be of good quality and workmanship for seven (7) years from date of delivery by ATW to the customer.
9.2 Under this guarantee ATW agrees to repair or replace, at its option, unfinished and in the form as originally supplied and without charge, any goods found to be defective within the meaning of this guarantee, provided that;
- Goods are inspected on receipt for visible defects and any such defects are brought to the attention of ATW by notice in writing notifying the date and place of service within seven (7) days of such defects being detected, and in any event, within seven (7) years from the date of ATW’s Shipment.
- Wire reinforced glass, toughened glass, float glass, laminated glass and mirror Glass have the benefit of a (1) Year warranty against Manufacturing defects.
- Moving parts such as winders, hinges, Jambliner systems, counter balance systems, sash locks, handles and other moving part/all other door parts are covered for a period of one (1) year only
- Goods are to be accorded reasonable treatment by the customer and, if stored prior to installation, are to be stored flat in dry buildings and not hung in damp or freshly plastered areas.
- Immediately after fitting OR within 30 days from delivery date and prior to hanging (doors), the entire goods, including the top and bottom edges of doors and windows sashes, receive two (2) coats of paint, varnish or sealer to prevent undue changes to the moisture content within the goods.
- Exterior doors and windows are finished with light reflective, exterior finish colours with a (LVR) light reflectance value greater than (50). White (LVR) is approx (95) whilst Black is (LVR) approx (5).
- Throughout the warranty period goods are maintained so as to prevent deterioration from normal weather conditions.
- All solid construction doors are hung with a minimum of three (3) 100mm hinges.
- The utility or strength is not impaired in the fitting of the goods, the application of the hardware or cutting and or altering the goods.
- The moisture content of the timber does not fall below 12% or exceed 18%.
- Only repairs carried out by ATW personnel or authorised ATW agents are covered by Warranty, unless otherwise agreed upon in writing.
9.3 The warranty in sub-clause 9.3 does not apply and to the extent permitted by law ATW will not be liable if:
- Goods become defective through failure to follow these recommendations or for hazards of shipment or storage, after the goods leave control of ATW.
- ATW accepts no responsibility for glass breakage (except for faulty workmanship or material)
- There is a natural variation in the colour and texture of the timber.
- There is a twist or bow not exceeding 5mm on doors or window sashes up to 2110 x 1000 x 35mm or 6mm for doors or window sash’s up to 2411 x 1220 x 35mm. Doors or window sash’s exceeding 2411 in height or 1220 in width are not guaranteed against twist or bow.
- There is shrinkage or splitting of frame members or panels in solid joinery due to atmospheric conditions.
- Doors improperly hung or which do not swing freely.
- If payment has not been received in full for the goods.
- The Warranty is void if the purchaser has provided incorrect measurements or specifications
- ATW will not be responsible under clause 9.3 for additional charges of hanging, painting or other charges arising from the replacement of doors (including wardrobe doors) or for installation, removal, labour or other costs arising from the replacement of any goods and glass goods.
- The warranty will be void when a dark coloured stain or paint has been applied to external timber surfaces.
- In order to claim under the warranty in sub clause 9.3 you must;
- Within thirty (30) days of any defect arising, notify ATW of the defect in writing (Notification); ii. Contact ATW within the warranty period; and
(K) The Notification must include:
- Your quote number, full name, address and telephone number;
- Your original proof of purchase of the item(s) the subject of the defect or claim;
- A written description of the defect
- Where possible, a photograph of the defect; and
- A written assurance that the goods have not been damaged, incorrectly assembled, installed or operated, negligently treated or misused.
(L) The Notification must be made to;
(I) firstname.lastname@example.org or
(II) All Timber Windows 68 Frankston Gardens Drv Carrum Downs Vic 3201
9.4 ATW is not liable hereunder to reimburse any purchaser for goods repaired or replaced without the prior written consent of ATW.
9.5 This Guarantee is subject to the terms and conditions specified above and ATW shall be under no further
liability to the customer, with respect to defective goods except to the extent that any additional liability attached to ATW by virtue of any binding state, territory or federal law or regulation relating to the sale of goods. All conditions and warranties implied into contracts for the sale of goods and supply of services are hereby expressly excluded PROVIDED THAT nothing covered in this is extended or shall be taken to exclude, restricted or modify those conditions and modified in the guarantee.
10.1 Subject to clause 9 the only conditions, guarantees and warranties which are binding on ATW in respect of the state, quality or condition of the goods and/or services (including advisory services) are those imposed and required to be binding by statue (including the Australian consumer law and, if applicable, The Domestic Buildings Acts) and which cannot be excluded, to the extent permitted by law, the liability, if any of ATW arising from a breach of such conditions, guarantees or warranties shall, at ATW’s option, be limited and completely discharged in the case of the goods, either the replacement or the repair by ATW of the goods and in the case of the services, by the supplying of the services again.
The customer must bear the cost of returning to ATW any goods in respect of which a warranty claim is made. All other conditions guarantees and warranties whether express or implied by law in respect of the state, quality or condition of the goods and/or the services which may apart from this clause be binding on ATW, are hereby expressly excluded to the fullest extent permitted by law and subject to clause 9.1. ATW has no liability to any person for the loss or damage of any kind whatsoever including without limitation, for any indirect or consequential loss (including loss of profits, business, revenue, opportunity, goodwill, or loss arising from any failure, breakdown, defect or deficiency in the goods and/or the services) arising out of or in connections with the goods and/or the provision of the services.
12.1 If any of the Customer’s Order, or any contract executed between the customer and ATW, conflicts with or purports to vary these conditions, then these conditions shall prevail to the extent of any inconsistency or variation unless otherwise agreed upon in writing.
12.2 The only terms and conditions binding on ATW are those contained herein or otherwise agreed to in writing by ATW and those, if any which are imposed and which cannot be excluded by law
12.3 Unless otherwise stated in the quotation, all glass shall be clear Glass.
12.4 It is expressly agreed that any variations in colour or texture of any material used in the goods shall not be a defect.
12.5 If scaffolding and/or hoisting facilities are required for the removal of the goods from the delivery vehicle or for their installation those facilities shall all be the responsibility of and at the cost of the customer.
12.6 ATW shall not be liable for and the Customer shall indemnify and keep ATW indemnified against, any liability and any loss or damage ATW may sustain as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any Terms and Conditions by the customer or its representative.
13 PRODUCT SPECIFICATIONS
13.1 It is the customer’s responsibility, in accordance with the relevant Australian Standards, to advise ATW in writing of the:
- The window ratings, Energy ratings and BAL ratings if applicable;
- Design window pressures;
- Suitable terrain category;
- Any Design specification; and
- The relevant building codes and Australian Standards
(“Building Specifications”) applicable to the installation site for all windows, louvers and doors
- Should the customer fail to advise ATW of the building specifications in writing, all goods produced, will be suitable for fully sheltered terrains and will sustain the minimum ratings for the wind and water.
- To the extent permitted by law, ATW will not be liable for the non-compliance and/or Faulty performance windows louvers or doors where the customer failed to advise ATW in writing of the Building specifications.
- The customer must inform ATW on the order form as to any specific purpose for which the goods are to be used.
14 INTELLECTUAL PROPERTY
14.1 Where the goods are manufactured to the customer’s specification, the customer will indemnify and keep indemnified ATW against any liability to or action by a third party for infringement or alleged infringement of a patent, registered design, trademark or copy arising for ATW complying with the customers specifications.
14.2 No right or licence is hereby granted to the customer to use any patent, copyright, registered design, trademark or other industrial property right of ATW or otherwise.
15.1 Obligations and rights under these terms and conditions cannot be assigned or transferred to any third party without ATW’s written consent.
16.1 It is recommended that all glass surfaces be kept clean by prompt removal of all dirt or other contaminants. Clean water and, in some instances a small amount of mild detergent should be used. After washing, any detergent residue must be thoroughly rinsed away with clean water. Under No circumstances is any form of blade, scraper or abrasive cleaner to be used. Stubborn dirt or residue should be lightly sponged off to avoid scratching of the glass. The frequency of cleaning required will depend on environmental conditions such as proximity to the ocean or industrial areas. As a general guide, glass should be cleaned at least quarterly
16.2 Our products are designed and glazed in accordance with relevant Australian Standards AS2047 and AS2208. All products conform to AS4055 for wind loads, and where applicable to AS3959 – 2009 for construction in bushfire prone areas
17 SITE GLAZING REQUIREMENTS
17.1 It is the customer’s responsibility to ensure that site glazing contractors have clear and safe access to frames. Any work sites deemed to have difficult access (i.e. properties on an incline or uneven ground) that has not been allowed for at the time of quoting may incur further charges.
17.2 All scaffolding and lifting equipment required to site glaze second floor areas will be the sole responsibility of the customer unless otherwise stated in your quotation. All scaffolding MUST meet Occupational Health & Safety Regulations (OH&S). There must be a 2meter clearance between scaffolding and any fences that may surround the property. Scaffolding deemed to not meet these requirements by Site Glaziers at the time of glazing will need to be rectified before works will commence. Further charges may apply if Site Glaziers are required to return to site on a subsequent day.
17.3 Site Glazing Quotes allow for 1 site visit for glazing unless otherwise stated in your quote. Any cost for subsequent visits not originally quoted for site glazing will be passed onto the customer.
17.4 Builder or Site Supervisor details are required upon quoting so that Site Glaziers can liaise regarding the details of the Site Glazing.