Anna Livia Terms of Trade
1 - Definitions and interpretations
1.1 "Company" shall mean Anna Livia And its successors and assigns.
1.2 "Customer" shall mean the Customer or any person action on behalf of and with the authority of the Customer.
1.3 "Guarantor" means that person (or persons) or entity who agrees herein to be liable for the debts of the Customer on a principal debtor basis.
1.4 "Goods" shall mean Goods supplied by the Company to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 "Services" shall mean all services supplied by the Company to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra)
1.6 "Price" or "Purchase Price" shall mean the cost of the Goods as agreed between the Company and the Customer subject to clause 4 of this contract.
1.7 Words in the singular include the plural, and words in one or more genders include all genders.
1.8 Any heading is for reference only and does not affect the interpretation of these conditions.
2 - Acceptance
2.1 Any instructions received by the Company from the Customer for the supply of Goods and/or the Customer's acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein
2.2 Where more than one customer has entered into this agreement, the Customer's shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Company.
2.4 None of the Company's agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Company in writing nor is the Company bound by any such unauthorised statements.
3 - Goods
The Goods are as described on the invoices and quotation as provided by the Company to the Customer.
3.1 The Goods do not have 100% light and sound block out.
3.2 Uneven light disbursement will be seen between blades, styles, rails and window edges.
3.3 Silk is a natural product and has inherent imperfections.
3.4 The company is not liable for this natural imperfection. The Company does not offer matched fabric ranges or colour i.e. light, medium or dark due to limited fabric resources available.
3.5 Wood is a natural product, and as such, colour samples are approximate as final results will depend on the porosity and natural characteristics of the timber currently available.
3.6 Timber is a natural product and is selected randomly for clears, limes and stains. Timber colour may very between blades, slides, rails and joinery. Stains may highlight this variation.
3.7 The company is not liable for this natural colour variation. The Company does not offer matched timber ranges or colour i.e. light, medium or dark due to limited timber resources available.
3.8 Timber, Timber alternatives and Dyed cloth will fade in the sun. The company is not responsible for this fading.
3.9 The Company gives no guarantee (expressed or implies) that colour samples provided for colour match will match the finished Goods. The Company will make every effort to match colour samples to the finished Goods but will not be held liable in relation to colour samples differing from the finished Goods due to paint manufacturer's batch variations.
3.10 Dark Paint colours are not recommended for timber products as dark colours absorb excessive heat and shorten the life span of timber. In time splitting of the timber causing the paint to peel will occur. Continual maintenance will be required. The Company is not responsible for this maintenance.
3.11 Due to the nature of western Red Cedar (soft timber) timber tilt rods on shutters will cause indentations on the blades (where the tilt rod closes onto the blade). The company advises if this is not desired a semi-concealed tilt rod system should be chosen. The company is not responsible for these indentations should the customer choose the timber tilt rod style.
3.12 It is advised that all shutters or blinds are placed in the one order to avoid variations between paint batches or dye lots.
3.13 All shutters and blinds are manufactured square. The company is not responsible for the appearance in the window/door if the window/doors are out of square.
3.14 While every effort is made by the company to match colour, grain, weave or texture of the goods, to the colours, grains, weaves or textures requested by the customer, to the extent permitted by law, the company is not liable for any variations between sale samples and the final goods.
3.15 Slight defects will be present in paint/powder coat finishes. For all viewing situations a minimum of 1 metre shall apply provided that further distance be allowed commensurate with the use of the product and it's in-situ viewing distances.
4 - Price and Payment
4.1 The Price of the Goods shall (subject to clause 4.2) be the Company's quoted Price which shall remain current for a period of Thirty (30) days from the date of the quotation, Error and omissions exempt.
4.2 The Company may be giving notice to the Customer (verbally or otherwise) at any time before production commences increase the Price of the Goods to reflect any variation beyond the reasonable control of the Company, which increases the cost of the Goods/Services by more than 10% of the quoted Price. In the event of such an increase the customer will be given the option of cancelling their order.
4.3 A deposit is required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
4.4 A further payment may be required on completion of manufacture. The amount or percentage will be shown on the quotation if required.
4.5 A final payment will be COD. The amount or percentage will be displayed on the quotation.
4.6 The Company may withhold delivery of the Goods until the Customer has paid for them in full, in which event the full final payment shall be made before the delivery date.
4.7 Should Installation not be effected within Seven (7) days of notice of delivery, payment for the Goods will become immediately due and payable. The Company may (in its discretion) charge storage costs as determined by the Company from time-to-time, and will be shown as an extra on the invoice.
4.8 Payment will be made by cash, money order, cheque or by bank cheque, or by MasterCard and Visa credit card or by direct credit, or any other method as agreed to between the Customer and the Company.
4.9 The customer is not entitled to defer, offset or withhold payment in whole or in part for any reason unless agreed to by the company.
4.10 Any additional products not listed on the quotation, but now required will be treated as a new order and paid for separately; final payment for the original order cannot be delayed whilst awaiting supply of the additional order.
4.11 The Customer shall not set off against the Price amounts due from the Company.
5 - Delivery of Goods/Services
5.1 Delivery of the Goods shall be made to the Customer's address. The Customer shall make all arrangements necessary to take delivery of the Goods (Including, but not limited to, payment of the Price) whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Company's address.
5.2 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivered to the Customer for the purposes of this agreement.
5.3 All dates and times quoted for delivery or installation are estimates only. The Company shall not be liable in any way for the failure to deliver or supply the goods and/or services within the stated time and the customer shall accept and pay for the goods and/or services notwithstanding such failure to deliver within the stated time.
5.4 The Company will not be liable for any loss or damage whatsoever due to failure by the company to deliver the goods (or any of them) promptly or at all.
6 - Risk
6.1 If the Company retains property in the Goods nonetheless, all risk for the Goods passes o the Customer on deliver.
7 - Defect / Returns
7.1 The Customer shall inspect the Goods on delivery and shall within twenty-four (24) hours of delivery, notify the Company of any alleged defect, shortage in quantity, or damage. The Customer shall afford the Company an opportunity to inspect the Goods including reasonable access within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer 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.
7.2 For defective Goods, which the Company has agreed in writing that the Customer is entitled to reject the Company's liability is limited to either (at the Company's discretion) replacing the Goods or repairing the Goods provided that the Customer has complied with the provisions of clause 7.1
7.3 Custom made and special order, Customer specifications or non-catalogue items are under no circumstances acceptable for credit or return. Cancellation of orders is at the company's discretion.
8 - Warrant
8.1 For Goods not manufactured by the Company, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Company shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturers' warranty. Call out fees may apply.
8.2 Any warranty period shall be null and void unless all payments due and payable to the company have been paid in full within the specified payment terms period.
8.3 Timber is a natural product. The company is not responsible for natural imperfections and are not required under the warranty to repair any of these natural imperfections, as they are inherent to timber products.
8.4 Silk is a natural product. Silk has natural imperfections. The Company is not required under the warranty to repair or replace any silk product due to any of these natural imperfections, as they are inherent to silk fabrics.
9 - The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
9.1 Nothing is 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 these Acts where applicable
10 - Intellectual Property
10.1 Where the Company has designed or drawn goods for the Customer, then the copyright in those designs and drawings shall remain vested in the Company, and shall only be used by the Customer at the Company's discretion.
10.2 Conversely, in such a situation, where the Customer has supplied drawings, the Company in its sale conditions may look for an indemnity (the specifications and design of the Goods (Including the copyright, design right or other intellectual property in them shall as between the parties be the property of the Company).
10.3 The Customer warrants that all designs or instructions to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Customers order.
11 - Default & Consequences of Default
11.1 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% per calendar month and shall accrue at such a rate after as well as before any judgement.
11.2 In the event the customer defaults in payment of any invoice when due all discounts as shown on the quotation become invalid and the full price becomes applicable.
11.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all the Company's costs and disbursements including on solicitor and own client basis and in addition all of the Company's nominees costs of collection.
11.4 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company exercised its rights under this clause. In the event of the suspension/termination, the customer shall be liable for costs incurred by the company up to the time of termination.
11.5 If any account remains unpaid after supply of the goods or services the following shall apply. 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.
11.6 In the event that:
a) any money payable in the Company becomes overdue, or in the Company's opinion the Customer will not meet its payments as they fall due; or
b) the Customer 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 Customer or any asset of the Customer then without prejudice to the Company's other remedies at law
d) the Company shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
e) All amounts owing to the Company shall whether or not due for payment, immediately become payable.
12 - Title
12.1 Property and ownership in the goods does not pass to the customer, and remains with the company, until the payment of
a) the whole of the purchase price for all goods supplied.
b) all other amounts owing to the company of any nature whatsoever, and
c) all amounts owing by the customer to any entity that is in relation to the company, "related entity" as defined by the Corporations Act 2001
12.2 Until property and ownership in the goods passes to the customer; the customer
a) has no right, title or interest to, or in, the goods and holds the goods as fiduciary agent and bailes of the company
b) must store the goods separately and in a manner which enables the goods to be identified and cross-referenced to particular invoices; and
c) Is not authorised to sell the goods.
12.3 If the purchase price, or any part of the purchase price, has not been paid, the customer grants the company an irrevocable licence, and irrevocably appoints the company as the customer's agent, to enter and remain on any premises upon which the goods are stored to enable the company to;
a) Inspect the goods;
b) Determine whether the customer is complying with the customers obligations under this clause 13; and
c) If the customer has breached these conditions, reclaim possession of the goods.
12.4 If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, the Company is entitled, without prejudice to any of its other rights or remedies under these Terms and 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 Company is sufficient evidence of the Company's rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
13 - Security and Charge
13.1 Notwithstanding anything to the contrary contained herein or any other rights which the Company may have however:
a) Where the Customer and/or the Guarantor (if any) is the owner of land, reality or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company's nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Company (or the Company'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 Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Company from and against all the Company'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 Customer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Company or the Company's nominee as the Customer's nominee shall think fit in his/her/their absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of the Company and in the Customer's and/or Guarantor's obligations and indebtedness to the Company and further to do and perform all necessary and other acts including instating any necessary legal proceedings and further to exclude all or any documents in the Company's absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
14 - Cancellation
14.1 The Company may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 At the Company's sole discretion the Customer may cancel delivery of Goods and/or Services, in the event that the Customer cancels delivery of Goods and/or Services the Customer shall be liable for any costs incurred by the Company up to the time of cancellation
15 - Privacy Act 1988
15.1 The Customer and/or the Guarantor's agree for the Company to obtain from credit-reporting agency a credit report containing personal credit information about the Customer and Guarantor's in relation to credit provided by the Company.
15.2 The Customer and/or the Guarantor's agree that the Company may exchange information about Customer 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 Customer.
b) To notify other credit providers of a default by the Customer.
c) To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers: and
d) To assess the credit worthiness of Customer and/or Guarantors.
15.3 The Customer consent to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988)
15.4 The Customer agrees that Personal Data provided may be used and retained by the Company for the following purposes and for other purposes as shall be agreed between the Customer and Company or required by law from time to time: Provision of Services & Goods;
Marketing of Services and/or Goods by the Company, its agents or distributors in relation to the Services and Goods; analysing, verifying and/or checking the Customer's credit, payment and/or status in relation to provision of Services/Goods; processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and Enabling the daily operation of Customer's account and/or the collection of amounts outstanding in the Customer's account in relation to the Services and Goods.
15.5 The Company may give, information about the Customer to a credit reporting agency for the following purposes:
a) To obtain a consumer credit report about the Customer, and or Allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
16 - Unpaid Company's Rights to Dispose of Goods.
16.1 In the event that:
The Company retains possession or control of the Goods: and Payment of the Price is due to the Company: And
The Company has made demand in writing of the Customer for
Payment of the Price in terms of this contract; and
The Company has not received the Price of the Goods
Then whether the property in the Goods has passed to the Customer or has remained with the Company, the Company may dispose of the Goods and may claim from the Customer the loss of the Company on such disposal.
17 - Lien
17.1 Where the Company has not received or been tendered the whole of the price, or the payment has been dishonoured, the Company shall have:
a) A lien on the goods:
b) the right to retain them for the price while the Company is in possession of them;
c) a right of stopping the goods in transit whether or not delivery has been made or ownership has passed; and d) a right of resale
d) the foregoing right of disposal, provided that the lien of the Company shall continue despite the commencement of proceedings or judgement for the price having been obtained.
18 - Customers Responsibilities.
18.1 it is the Customers responsibility to remove, prior to installation, any
a) valuable furniture, artefacts and rugs
b) any existing window treatments and fittings; and
c) Any specified items (including, but not limited to, window locks, door handles) and in the event that the removal is not completed by time of delivery, the Company may (in its discretion) charge a removal fee, as determined by the Company from time-to-time, and will be shown as an extra on the invoice. Payment for all extras must be made in full at the time of completion.
18.2 The customer warrants and represents that it is relying on its own skill and judgement in relation to the quality of the goods and services, their fitness for any purpose that may be required by the customer and not upon any conduct or representation by the company or any of the company's officers, employees or agents.
18.3 The customer agrees to give 48 hours' notice of any alteration or cancellation of installation booking. A fee equal to the cost of labour booked will be changed if this condition is not met. Bookings will be re-scheduled according to availability within the installation program.
18.4 The customer agrees to ensure installation can be effected within normal business hours if installation cannot be effected in normal business hours an additional installation charge will be incurred as determined by the company from time-to-time. This will be shown as an extra on the invoice.
18.5 The Customer undertakes to give the Company not less than fourteen (14) days prior written notice of any proposed change in the Customer's name and/or other charge in the Customer's details (including but not limited to, changes in the Customer's address, facsimile number, or business practice)
19 - Building Work Contractors Act 1995
19.1 At the Company's sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building Work Contractors Act 1995 may apply.
19.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building Work Contractors Act 1995 of New South Wales, except to the extent permitted by the Act where applicable.
20 - General
20.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legally and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 All Goods supplied by the Company are subject to the laws of New South Wales and the Company takes no responsibility for changes in the law, which affect the Goods supplied.
20.3 The Company shall be under no liability whatsoever to the Customer for any indirect loss and/or expense (including loss of profit suffered by the Customer arising out of a breach by the Company of these terms and conditions.
20.4 In the event of any breach of this contract by the Company the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Company exceed the Price of the goods or services.
20.5 The Company may license or sub-contract all or any part of its rights and obligations without the Customer's consent.
20.6 The Company 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 Company notifies the Customer of such change.
20.7 Neither party shall be liable for any default due to any act of God, war terrorism, strikes, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.