YARRA SHADE CO. Pty Ltd. – TERMS & CONDITIONS

1/ Interpretation:

(a) ‘buyer’ means the customer whose name appears on this document and any annexures.

(b) ‘seller’ means Yarra Shade Co. Pty Ltd. (YSC).

(c) ‘order’ means the order for goods constituted by this document and any annexures.  

(d) ‘domestic’ means any house, unit or residential site.  

(e) ‘goods’ means the articles to be supplied by the seller and any consequential services as recorded on this document or further required and in any annexures.

(f)  the provision of a purchase order or other written acceptance, without signing these Terms and Conditions, is deemed acceptance of these Terms and Conditions.

2/ General:

1- Subject to these conditions, the seller is not liable for any physical or financial injury, loss or damage to property or person incurred during the entire procedure required to complete this agreement in any way whatsoever, negligent or otherwise.

2- To the extent permitted by statute or general law, the liability of the seller is limited to:

(a)    the replacement or repair or cost of replacement or repair (at the seller’s cost) for any goods supplied.  Seller has first right to make good.

(b)    the re-provision or cost of re-provision (at the seller’s cost) of any services provided.  Seller has first right to make good.

3- The measurements shown are for production purposes only and may not necessarily be the finished size/s of the product/s.  Materials are cut to suit the final layout of the installation.

4- YSC does not warrant that the final installation will exactly resemble any indicative images or diagrams created.

5- YSC reserves the right to photograph, return at a later date to photograph, and use images for promotion, advertising and marketing in any media in perpetuity.

3/ Warranty:

1- Except where attributable to buyer misuse or accident, failure to follow instruction, or fair wear and tear, the seller warrants:

(a)    for domestic installations – workmanship, components (excluding fabric) and installation for three (3) years under normal conditions.  Exceptions to this warranty will be made in writing explaining mitigating factors and signed by both parties.  The warranty is offered on a pro-rata basis and excludes acts of God and heavy weather.

(b)    for commercial and industrial (all non-domestic) - workmanship, components (excluding fabric) and installation for one (1) year under normal conditions.  Exceptions to this warranty will be made in writing explaining mitigating factors and signed by both parties.  The warranty is offered on the same basis as in 3/1-(a).

(c)    for second-hand products or component repairs to existing products, three months (or other stated period) from date of repair, offered as in 3/1-(a) & (b).

(d)    for fabric – fabric manufacturers supply their own warranty of up to 10 years. YSC does not warrant fabric, but can assist in any dealings the buyer may have with the fabric manufacturer.

2- Improper use or maintenance will void the warranty, proper maintenance will be advised verbally.  Wind or storm damage will not be covered under any warranty.

4/ Alterations & Cancellations:

1- This order cannot be altered without the consent of YSC and then only upon such conditions as laid down by YSC.  The buyer must pay the seller’s reasonable costs of any alteration.  Alterations cannot be made once materials are cut.

2- All YSC products are custom-made to order.  Cancellation is only valid if in writing and endorsed with the consent of the seller. The buyer cannot cancel an order after the required materials have been ordered, or if in stock, manufacture commenced.  In this situation, the full consideration is payable at time of cancellation.

3- Where the seller accepts a cancellation, the buyer shall pay the seller, at the time of acceptance, the greater of $300 or 30% of the full amount shown on this order excluding any discounts offered, or costs incurred to date.

5/ Delivery & Installation:

1- The seller will endeavor to deliver or install the goods by an agreed date.  Failure to do so will not entitle the buyer to cancel the order, delay payment or impose penalty or discount.  The seller will keep the buyer informed of any mitigating factors and proposed timings.  

2- The buyer will make the site safe, accessible and available during business hours.  This may include weekends and public holidays in busy periods.  Installations, requested by the buyer, outside normal working hours will incur a surcharge paid by the buyer of up to, but not necessarily 100% of the installation component.  

3- Where the seller is prevented from entering the site, a weekly storage surcharge of 5% (per week) of the outstanding value of the goods, with a minimum charge of $50, will be incurred until installation is effected.

6/ Terms of Payment:

1- The buyer will pay a 5% deposit and 45% materials sourcing payment (50%) at the time of accepting the quote and the balance including any additional costs at the time of completion.  Regardless of any stated payment terms, payment is always due immediately the invoice is received.  Payment can be made by cash, MasterCard, Visa or bank cheque.  Credit card payments will incur an additional charge of up to, but not necessarily 4%.  This is a bank charge passed on.  (generally 2.0%)

2- Goods remain the sole and absolute property of YSC as legal and equitable owner until paid for in full, notwithstanding that the goods may be in the buyer’s possession.

3- If not paid for on the day of installation (a) any discount offered is forfeited. (b) the buyer will pay the seller interest at 20% per annum, calculated daily, until the balance is paid in full, which the buyer acknowledges is not a penalty.

4- Any duplicate invoices prepared at the buyer’s request will attract an administrative charge of $25 per invoice.

5- If the balance is not paid within 14 days after installation, the buyer:

(a)    permits the seller, or seller’s agents to enter the property at any time to recover the goods.  

(b)    indemnifies the seller or seller’s agents for any action against the seller or seller’s agents, and consequent upon the seller exercising its right to recover the goods.

(c)    agrees to pay all recovery expenses incurred by YSC in the event of non-payment within 7 days of goods being recovered plus accrued interest, and

(d)    warrants that YSC are not liable for any damage, injury or loss to property or persons sustained during this process.

6- Product servicing (adjustments, tension settings, lubrication, etc.) that may have been requested for recent installations cannot be used as a reason for non-payment of the outstanding balance.  All materials and workmanship are warranted and service calls will be honored as soon as practicable, the outstanding balance is to be paid for servicing to proceed.  All warranty provisions will be withdrawn for the period of non-payment.  The Buyer acknowledges and accepts liability for the cost of repairs to goods and any damage or cost arising from the goods, which may suffer any mishap or damage occurring during the period of non-payment.

7/ Buyer’s Responsibilities:

1- The onus is on the buyer to establish if a council permit(s) is required.  

2- The buyer is solely responsible for any permit or other document and associated costs required for the lawful installation of the goods at the given site. YSC can provide engineering certificates and documentation to assist with permit applications, if advised at quoting time, at a nominal charge.

3- The buyer indemnifies the seller against any action arising from the installation of the goods at the given site.  The buyer is solely responsible for any penalty or cost of alteration or removal arising from the unlawful installation of the goods.  Inability to complete the installation does not entitle the buyer to discount or delay payment.  Payment in full is due at the time of works halting.  If alterations or removal are required by council or other body, YSC will have first right of refusal to perform the work.

The buyer warrants:

(a)    that the site is structurally sound, readily accessible to the required machinery and otherwise fit for the installation of the goods.

(b)    that there are no unusual conditions that would make routine installation difficult or impossible.

(c)    that no liability will be accepted by YSC for property damaged while carrying out an installation, except in the case of unreasonable carelessness.

(d)    that the buyer will pay any additional charges incurred to access, complete or make safe the site and installation, including but not limited to:

(i)  any attendant equipment hire not already stated for dealing with abnormal soil conditions such as unstable ground, rock, fill, rubble, underground services, etc.

(ii) extra costs incurred to complete the installation, which may include the hire of special equipment (e.g. concrete cutter, crane, concrete pump, additional concrete or materials, bobcat, stabilizing equipment, extra soil removal etc), plus additional labour required.  Lost time will be charged at $60/hr/person.

(e)    the buyer is entitled to possession of the site address and that the buyer is the lawful occupant of the site address.  The buyer indemnifies the seller against any action arising from the installation of goods at the site address.

(f)    that all underground services have been brought to the attention of the installers and YSC, and YSC are in no way liable for any damage or costs arising from disturbing underground services.

(g)    the buyer will recompense where necessary, the seller or seller’s agents, contractors, machinery providers or other party for any injury, cost, lost time or damage incurred through striking underground services, unforeseen materials or other circumstance outside YSC’s control.

(h)    that the buyer indemnifies the seller or seller’s agents against any damage, injury, loss, harm or death sustained through misuse of, or climbing on the installation.

(i)    this contract takes precedence over any contrary clauses in any sub-contractor agreement signed by YSC, in particular if such clauses state to the contrary.

(j)    liquidated damages, withheld payments and penalty clauses will not be applied, particularly if stated in sub-contractor agreements which may be signed by YSC.

8/ Representations:

1- Notwithstanding obligations under the Trade Practices Act and the Victorian Goods Act, this quotation contains the entire understanding between YSC and the buyer and there is no other understanding, agreement, warranty or representation, express or implied or in any way extending, defining or otherwise relating to the provisions hereof or binding on the parties concerned with respect to the products or the sale, manufacture or installation of the products.