Terms & Conditions of Trade
“Company” means MCKAY ROOFING. ABN 63 614 943 722. “Customer” means any person, firm, company, government body or other entity which the Company contracts to supply goods or services.
1. ORDERS/SERVICES
All orders for goods or services from the Customer which may be accepted by the Company are accepted on the following conditions (“Conditions”). Any conditions of purchase offered by the Customer which purport to add to or are otherwise inconsistent with these Conditions shall be deemed to be waived by the Customer upon placement of an order by the Customer with the Company unless such conditions of purchase are expressly agreed to by the Company in writing.
No order accepted by the Company (in writing, orally or by conduct) may be cancelled, deferred or varied by the Customer without the prior written or verbal consent of the Company.
2. QUOTATIONS AND PUBLISHED PRICES
Quotations issued by the Company are open for the Customer to whom the quotation is addressed to place an order within 30 days from the date of quotation (unless a shorter or longer period is expressly provided for in the quotation or the quotation is withdrawn by the Company) and such orders are subject to acceptance by the Company in accordance with Clause 1.
The issue of a quotation and other publication of prices by the Company do not constitute offers to supply, and are subject to changes in the costs of labour, materials, production, transport and duty, exchange rate fluctuations and other increases in the cost to the Company of supplying the goods or services and any errors by the Company in listing, determining or calculating the prices.
Quotations and orders placed by the Customer on such quotations are based on the information and details provided by the Customer to the Company. Where exact specifications of the scope, nature or extent of the work are not available to the Company at the time of providing a quotation, such quotations are estimates only.
In the event the cost to the Company of supplying goods or services or the scope, nature or extent of the work required to be undertaken by the Company to supply the goods or provide the services change or the Customer requests any variations to be made (which may be consented to by the Company in writing), the Customer will be responsible for and pay for all extra costs and charges associated with such changes.
Services stated on the quotation is the only goods or service that will be provided to the Customer. If the quotation does not state a good or service on the quotation, the good or service will not be provided. eg. the single item of pressure washing a roof alone, will not include cleaning of windows, driveways and pathways. This is a further service offered by the Company at the Customers request.
3. PRICE
The Company reserves the right to vary the prices charged from time to time without prior notification. Published and quoted prices are (unless otherwise indicated) of any applicable goods and services tax and any applicable taxes and duties and costs and charges associated with the carriage and insurance of goods, and all such items shall be included as an additional item in the invoiced price.
Goods and services (including, without limitation, changes in the scope, nature or extent of work) will be invoiced at the price ruling at the date of delivery or services.
5. PAYMENT
Deposit for goods and services shall be due and paid 5 days prior to the date of the commencement of services.
Final payment for goods and services shall be due and payable by the Customer by the last business day of the works being completed in which the invoice for the respective goods or services is issued by the Company; provided however that in the event an Event of Default occurs all actual and contingent amounts owing by the Customer to the Company whether or not then due for payment (including, without limitation, for orders which have been accepted by the Company but which have not been filled or delivered) shall be due and payable by the Customer upon demand by the Company.
The Company may charge interest on any overdue payments at the rate 2% above the penalty interest rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) for the length of any such delay in payment.
The Company also reserves the right to the maximum extent permitted by law to charge all bank and other credit provider or facility fees and charges incurred by the Company in processing the Customer’s payment, including (without limitation) by credit card or for dishonoured payment.
The Customer agrees to pay all costs incurred by the Company for the collection of any monies owing by the Customer to the Company which are not paid when due (including, without limitation, commission charges by collection agencies and legal costs and disbursements (on an own solicitor/client indemnity basis), including (without limitation) instructing the Company’s lawyers to provide advice in relation to, and/or to commence, the collection of monies owing by the Customer to the Company) upon demand by the Company.
6. CANCELLATION/RE-SCHEDULE
In the event that the Customer cancels/re-schedules the goods and service after accepting and agreeing to the quotation, the Company reserves the right issue an invoice for an amount of $200.00 for goods and services cancelled within 7 days prior to the commencement of the scheduled/agreed to date and time of the goods and services and $500.00 for goods and services cancelled/re-scheduled within 72 hours prior to the commencement of the scheduled/agreed to date and time or the goods and services.
7. SPECIFICATIONS
The Company’s policy is one of continuous development, and the Company therefore reserves the right to improve, change, alter or discontinue specifications without prior notice. All illustrations and samples are intended as approximate representations only and are not binding in detail with regard to finishes, colour, shades, materials, design and other specifications. To the maximum extent permitted by law, the Company accepts no liability whatsoever for any loss or damage (including, without limitation, consequential loss or damage), directly or indirectly, arising out of or in connection with same.
8. INSTALLATION AND USE
Installation and fitting of goods by the Company is not included unless otherwise specifically indicated by the Company in writing. To the maximum extent permitted by law, the Company takes no responsibility for the installation and fitting of goods other than goods which are installed or fitted directly by the Company including possible water damage caused by the cleaning and preparation of the Customers property.
To the maximum extent permitted by law, the Company shall not be responsible or liable for any liability, whether in contract, tort or otherwise, for any injury, damage or loss whatsoever arising in any way in connection with the improper installation or fitting of goods or the use of such improperly installed or fitted goods (by the Customer or any third party), including (without limitation) direct, indirect, special or consequential loss or damage arising from claims by the Customer, third parties or otherwise, and the Customer shall indemnify and keep the Company fully indemnified from and against any and all suits, actions, claims, demands, losses, liabilities, damages, costs and expenses which may be made or brought against or suffered or incurred by the Company arising out of or in connection in any way as a result same.
9. POTENTIALLY DEFECTIVE GOODS PROCEDURE
The Company asks that if the Customer believes that goods which have been installed or fitted may be the subject of a warranty provided by the Company or do not meet any applicable consumer guarantees provided by Mckay Roofing to the Customer to contact the Company’s Customer Service Department before the goods are attempted to be repaired, replaced or removed for return to discuss the nature of the issue and whether it is appropriate for the Company to attend the premises where the goods have been installed or fitted as this may allow the goods and the issue to be better assessed by the Company (bearing in mind that the extent and accuracy of the assessment will be dependent on the information provided to the Company) before the goods are attempted to be repaired, replaced or removed. The Company therefore suggests that the Customer provide the Company with as much information as possible in relation to the goods as the Company will be relying on that information in assessing the goods and the issue. If there is a legal obligation on the Company to repair or replace the goods, then the Company will do so.
However, the Customer acknowledges and agrees that if the Customer requests the Company to attend the Customer’s premises (or the premises of any third party, including the premises of a customer of the Customer) and there is no legal obligation on the Company to repair or replace the goods, then the Customer will upon demand pay the Company the costs and charges incurred by the Company in organising for the premises to be attended and the goods to be assessed. For instance, if the goods have been improperly installed or are used with incompatible parts or components and there is no legal obligation on the Company to repair or replace the goods, then the Customer will upon demand pay the Company the costs and charges incurred by the Company in organising for the premises to be attended and the goods to be assessed.
10. LIMITATION OF LIABILITY
To the maximum extent permitted by law and subject to the following provisions of this Clause 15, the Company shall not be under any liability, whether in contract, tort or otherwise, for any injury, damage or loss whatsoever arising in any way in connection with the supply or use of the goods or from any services provided, including (without limitation) direct, indirect, special or consequential loss or damage of any kind arising from claims by the Customer, third parties or otherwise.
If rights are conferred upon the Customer or obligations are imposed upon the Company or by ACL or other law which cannot be excluded, the provisions of this Clause 15 shall be read subject to those rights or obligations, and to the maximum extent permitted by such legislation the Company hereby expressly limits its liability under any such legislation to the maximum extent permitted by law.
Subject to the preceding paragraph of this Clause 15, the Customer agrees that the liability of the Company (which cannot be limited beyond the following provisions) is limited to:
- in the case of the supply of goods, any 1 or more of the following (at the Company’s option):
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the costs of replacing the goods or of acquiring equivalent goods; or
- the payment of the costs of having the goods repaired; or
- in the case of the supply of services, any 1 or more of the following (at the Company’s option):
- the supply of the services again; or
- the payment of the costs of having the services supplied again.
Without reducing the effect of, and subject always to, the preceding provisions of this Clause 15, in no event will the Company be responsible for alterations made to, or the removal, re-installation or re-fitment of, goods or services by or on behalf of the Customer, and the Company’s total aggregate liability (if any) to a Customer for any particular order for the supply of goods or services by the Company to the Customer will not, in any event, exceed the amount invoiced by the Company to the Customer for the said order.
11. DISPUTES
If a dispute arises in any way in connection with these Conditions, any orders placed by the Customer, any orders accepted by the Company or the supply of goods or services by the Company to the Customer, neither party shall start legal proceedings until the mediation procedure outlined in this Clause has been completed; provided however that this Clause shall not apply to disputes involving amounts owing by the Customer for goods or services supplied by the Company to the Customer or urgent interlocutory relief.
The mediation procedure is:
- either party may start mediation by serving a written mediation notice on the other, stating briefly and clearly the nature of the dispute;
- when the other party receives the mediation notice, both parties must try to agree on a mediator. If they fail to agree within 21 days of service of the mediation notice, either party may apply to the President of the Law Institute of Victoria, Australia or his or her nominee for such purposes to appoint a mediator;
- the parties must request the mediator to make a determination as to the proportion each party should be responsible for the mediator’s fees (taking into account the nature and merits of the dispute) and the parties must comply with any such determination made by the mediator and account to one another at the conclusion of the mediation accordingly, and failing any such determination by the mediator each party must pay an equal share of the mediator’s fees;
- the mediation shall take place in Melbourne, Victoria;
- the parties must comply with the mediator’s instructions about the conduct of the mediation;
- if the dispute is settled by mediation, each party must sign the terms of settlement, which will bind the parties; and
- if the dispute is not settled within 21 days after the mediator has indicated to the parties acceptance of the appointment (or within any other period the parties agree in writing), the mediation must cease.
Any terms of settlement may be used in evidence in any court proceedings.
The mediation procedure is confidential and:
- nothing the parties or the mediator say or do during the mediation procedure; and
- no documents concerning the dispute created for the mediation procedure,
may be used in or required to be produced in any court proceedings.
12. GST
If prices published by the Company or included in an order by a Customer do not expressly indicate that the prices include GST (in the case of an order by a Customer, by express reference on the face of the order and not by incorporation or reference of conditions of purchase), then the Customer will be required to pay the Company the amount of the price for the goods and services plus GST and the following provisions of this Clause 22 shall apply.
The consideration payable by the Customer for goods and services represents the value of any taxable supply for which payment is to be made. If a taxable supply is made to the Customer, then the Customer must also pay at the same time and in the same manner as the value is otherwise payable the amount of any GST payable in respect of the taxable supply.
Expressions used in this Clause 22 have the same meaning as those expressions in the GST Act.
13. FORCE MAJEURE
The Company shall not be liable for any direct, indirect special or consequential loss or damage of any kind arising from non-delivery or delay in delivery of any goods or services caused by act of God, riot or civil commotion, strike, lock out, labour disputes, fire, flood, drought, power restrictions, act of government, acts of terrorism, delays in transport, breakdowns in machinery, failure to obtain or shortages of raw materials or other supplies obtained from 3rd parties or any cause whatsoever beyond its control.
14. MISCELLANEOUS
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Nothing in these Conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including, without limitation, the ACL) and which by law cannot be excluded, restricted or modified.
These Conditions are subject to variation by the Company by notice in writing to the Customer.
Headings used in these Conditions are for convenience only and shall be ignored in construing these Conditions.
“ACL” means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“all present and after-acquired property” has the meaning ascribed to that term in Regulation 1.6 of the PPSR.
“Event of Default” includes any of the following things:- the Customer is in breach of these Conditions and fails to remedy the breach within 7 days of being required to do so in writing by the Company;
- the Customer fails to pay any monies owing under these Conditions by the date that they are due and payable; or
- the Customer is unable to pay its debts as they fall due or a petition is presented or application made for the purpose of winding up the Customer or enters into liquidation or administration whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, liquidator, administrator or other like person appointed over all or any part of its assets or takes or suffers any similar action in consequence of debt.
“GST” has the meaning ascribed to that term by the GST Act.
“GST Act” means A New Tax System (Goods and Service Tax) Act 1999 (Cth).
References to any document (including these Conditions) are references to that document as varied, amended, consolidated, supplemented, novated or replaced from time to time.
References to any law are references to that law as amended, consolidated, supplemented or replaced from time to time.
The failure of the Company to enforce or exercise at any time or for any period of time any term of any contract incorporating these Conditions shall not constitute or be construed as a waiver of such term and shall in no way affect the Company’s right thereafter to enforce or exercise same.
Any provision of these Conditions which is or becomes prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective and severed to the extent thereof without invalidating any other provision of these Conditions, and any such prohibition or unenforceability shall not invalidate such provision in any other jurisdiction.These Conditions and any order for goods and services from the Customer which may be accepted by the Company shall be governed by and construed in accordance with the laws of the State of Victoria, Australia and the Customer hereby irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of the State of Victoria, Australia and of any Courts which may hear appeals therefrom; provided however that these Conditions and any such order may be enforced by the Company against the Customer in any other jurisdiction.
Legal.