1.1 “Seller” means either one of the following entities depending on which entity the Client has elected to purchase Goods or Services from:
Image Holdings Australia Pty Ltd T/A Image Blinds, its successors and assigns or any person acting on behalf of and with the authority of Image Holdings Australia Pty Ltd
.1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by the Seller to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
2. Errors and Omissions
2.1 The Client acknowledges and accepts that the Seller shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Seller in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Seller in respect of the Services.
2.2 In the event such an error and/or omission occurs in accordance with clause 2.1, and is not attributable to the negligence and/or willful misconduct of the Seller; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
3. Price and Payment
3.1 The Price shall be as indicated on invoices provided by the Seller to the Client in respect of the
3.2 At the Seller’s sole discretion a non-refundable deposit of up to ten percent (10%) may be required.
3.3 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by the Seller, which may be:
(a) by way of instalments/progress payments in accordance with the Seller’s payment schedule, which shall be:
(i) ten percent (10%) deposit upon acceptance of the quote: (ii) forty percent (40%) prior to processing the order;
(iii) remaining balance before delivery of the Goods
3.4 The Seller shall reserve the right to require payment for separate products or induvial blinds were
Goods have successfully been installed.
3.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
3.6 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
4.1 Subject to clause 4.1 it is the Seller’s responsibility to ensure that the Services start as soon as it is reasonably possible.
4.2 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Seller claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Seller’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify the Seller that the site is ready.
4.3 In the event that the Seller is required to provide the Services urgently, that may require the Seller’s
staff to work outside normal business hours of 8:30 am to 5:30 pm Monday to Friday (including but not limited to working through lunch breaks, weekends and/or Public Holidays) then the Seller reserves the right to charge the Client additional labor costs (penalty rates will apply), unless otherwise agreed between the Seller and the Client.
4.4 Any time specified by the Seller for delivery of the Goods is an estimate only and the Seller will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavor to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Seller is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.
5. Client’s Responsibilities
5.1 The Client shall:
(a) fully disclose any information in writing, prior to the scheduled installation, that may affect the Seller’s installation procedures;
(b) remove all existing window treatments, coverings to allow the Seller clear and free access to the site to enable the Seller to install the Goods. Failure of the Client to adhere to this clause and the responsibility falls on the Seller, all cost involved in will be on-charged to the Client as a variation;
(c) remove from the site any furniture, fixings, personal effects or other property likely to impede the Seller in order to minimize the risk of injury or any damage;
5.2 Prior to the Seller commencing any work the Client must advise the Seller of the precise location of all hidden services on the site and clearly mark the same (including but not limited to any mains/services in wall cavities). The mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
5.3 Whilst the Seller will take all care to avoid damage to any services the Client agrees to indemnify the
Seller in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 5.1.
6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Seller is entitled to receive all insurance proceeds payable for the Goods. 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.
6.3 The Client acknowledges that:
(a) variations of colour and shade are inherent in fabric dye lots. While every effort will be taken by the Seller to match colour and shade of the Goods, the Seller shall not be liable for any loss, damage or costs, howsoever arising resulting from any variation in colour and shading between batches of the Goods or sale samples and the final Goods supplied; and
(b) blinds are measured to allow a ten millimeters to twenty millimeters (10mm – 20mm) clearance between the bottom of the blind and the sill or floor and approx. five millimeters to ten millimeters (5mm – 10mm) clearance on either side.
6.4 In the event of skirting boards or wall tiles fitted within the window recess. It must be acknowledged and accepted that such skirting boards or tiles will form an obstruction which will prevent the end slats hanging vertically or horizontally.
6.5 The Client acknowledges and accepts that Goods are manufactured square, the Seller accepts no responsibility for windows that are out of square.
6.6 Timber is a natural product and as such may exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations. Whilst the Seller will make every effort to match sales samples to the finished Goods the Seller accepts no liability whatsoever where such samples differ to the finished Goods supplied.
6.7 Timber is a hydroscopic material subject to expansion and contraction, therefore the Seller will accept no responsibility for gaps or slight warping of slats that may appear in the timber materials during prolonged dry periods.
6.8 The Client acknowledges that Goods supplied may: (a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
6.9 The Seller shall not be liable for any defect or damage resulting from incorrect or faulty installation carried out by any other third party.
7. Accuracy of Client’s Plans and Measurements
7.1 The Seller shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client
7.2 In the event the Client gives information relating to measurements and quantities of the Materials
required to complete the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or Seller places an order based on these measurements and quantities. The Seller accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
8. Title to Goods (including any incidental items supplied as part of any Services)
8.1 The Seller and the Client agree that ownership of the Goods shall not pass until: (a) the Client has paid the Seller all amounts owing to the Seller; and
(b) the Client has met all of its other obligations to the Seller.
8.2 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 honored, cleared or recognized.
8.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 8.1 that the Client is only a Bailee of the Goods and must return the Goods to the Seller on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
(e) the Client irrevocably authorizes the Seller to enter any premises where the Seller believes the
Goods are kept and recover possession of the Goods.
(f) the Seller may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Seller.
(h) the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to the Seller for Services – that have previously been supplied and that will be supplied in the future by the Seller to the Client.
9.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up–to–date in all respects) which the Seller may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favor of a third party without the prior written consent of the Seller;
(e) immediately advise the Seller of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
9.4 The Seller and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and
132(4) of the PPSA.
9.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by the Seller, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Client must unconditionally ratify any actions taken by the Seller under clauses 9.3 to 9.5.
9.9 Subject to any express provisions to the contrary (including those contained in this clause 9), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10. Security and Charge
10.1 In consideration of the Seller agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Client indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
10.3 The Client irrevocably appoints the Seller and each director of the Seller as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
11.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Seller to inspect the Goods.
11.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non–Excluded Guarantees).
11.3 The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non–Excluded Guarantees.
11.4 Except as expressly set out in these terms and conditions or in respect of the Non–Excluded Guarantees, the Seller makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.
11.5 If the Client is a consumer within the meaning of the CCA, the Seller’s liability is limited to the extent permitted by section 64A of Schedule 2.
11.6 If the Seller is required to replace the Goods under this clause or the CCA, but is unable to do so, the Seller may refund any money the Client has paid for the Goods.
11.7 If the Client is not a consumer within the meaning of the CCA, the Seller’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Seller
at the Seller’s sole discretion;
(b) limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Goods;
(c) otherwise negated absolutely.
11.8 In the event of a request being made by the Client for service call not covered by warranty, a minimum call–out fee will be charged.
11.9 Notwithstanding anything contained in this clause if the Seller is required by a law to accept a return then the Seller will only accept a return on the conditions imposed by that law.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 If the Client owes the Seller any money the Client shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s Contract default fee, and bank dishonor fees).
12.3 Further to any other rights or remedies the Seller may have under this contract, if a Client has made payment to the Seller, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller under this clause 12 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
13.1 Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods to the Client. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller has exercised its rights under this clause.
13.2 The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Seller shall repay to the Client any money paid by the Client for the Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.3 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
13.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stock list items, will definitely not be accepted once production has commenced, or an order has been placed.
14. Privacy Act 1988
14.1 The Client agrees for the Seller to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Seller.
14.2 The Client agrees that the Seller may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
14.3 The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.
14.4 The Client agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
14.5 The Seller may give information about the Client to a CRB for the following purposes: (a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
14.6 The information given to the CRB may include:
(a) personal information as outlined in 14.1 above;
(b) name of the credit provider and that the Seller is a current credit provider to the Client;
(c) whether the credit provider is a licensee; (d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Seller has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of the Seller, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
14.7 The Client shall have the right to request (by e–mail) from the Seller:
(a) a copy of the information about the Client retained by the Seller and the right to request that the Seller correct any incorrect information; and
(b) that the Seller does not disclose any personal information about the Client for the purpose of direct marketing.
14.8 The Seller will destroy personal information upon the Client’s request (by e–mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
14.9 The Client can make a privacy complaint by contacting the Seller via e–mail. The Seller will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
15.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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 or impaired.
15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the State in which the Seller has its principal place of business, and are subject to the jurisdiction of the courts in that state.
15.3 Where applicable nothing in this agreement is intended to have the effect of contracting out of the
Competition and Consumer Act 2010 (CCA). The Seller shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
15.4 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock–out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
15.5 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorizations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.