TERMS AND CONDITIONS

1. SCOPE

These are the terms and conditions upon which Kintrol Pty Ltd (ABN 27 608 254 224) (hereafter referred to as “Kintrol Pty Ltd” or “the Company”) agrees to supply goods and services as set out in the Scope of Works.

2. ACCEPTANCE

(a) Any stipulations, terms, or conditions contained in the Customer’s order form or Acceptance which conflicts with any of the terms and conditions hereof will be inapplicable to any order placed with the Company unless agreed upon in writing by the Company before delivery of the Company products to the above address where the work is to be carried out.
(b) Any person who accepts the quotation warrants that for all purposes that person is the duly authorised agent of the Customer and if such person is not the duly authorised agent of the Customer then in consideration of the Company performing its obligation under this contract he shall be deemed to be the Customer and be bound by the terms and conditions of this contract.

3. QUOTATIONS

(a) A quotation shall be open for acceptance by a Customer for 30 days from the date of quotation unless such quotation is previously withdrawn by notice in writing.
(b) The Price shall be as quoted provided the Company is not prevented by the Customer its servants or agents or any delay caused by the matters set out in Clause 5(d) hereof from carrying out the Works within sixty days from the date hereof. Should any delay caused by any act, default, or omission of the Customer its servants or agents prevent the Company from carrying out the Works within sixty days of the date hereof then the Company is entitled to review the Price and any extra costs, loss, or expense incurred by the Company as a result of such delay shall be paid to the Company by the Customer as assessed by the Company at the time required by Clause 12 hereof.
(c) Except for terms which are defined in the quotation capitalised expressions set out in this clause bear the same meaning as those expressions
in the “A New Tax System’ (Goods and Services Tax) Act 1999”.

(i) Unless this quotation provides otherwise and subjects to this clause, any Consideration that may be provided for under the quotation is exclusive of GST. If the Company makes a Taxable Supply in connection with this Sub-contract for a Consideration which represents its Value 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. The Company’s right to payment under this clause is subject to a valid Tax Invoice being delivered to the Customer.
(ii) To the extent that the Customer is required to reimburse the Company for costs incurred by the Company those costs do not include any amount in respect of GST for which the Company is entitled to claim an INPUT TAX CREDIT
(iii) To the extent that any Consideration payable to the Company under this quotation is determined by reference to another amount, the GST exclusive amount of the other amount must be used.

(d) Prices quoted are subject to the Customer taking delivery of the whole Works at the address of the land where the Scope of the Works is to be carried out. The Company is not required to deliver any of the product at any time to any other address.
(e) If the Company is required to pay any amount which the Customer did not advise that the Company would have to pay before the Company provided this Quotation whether a special site allowance or any other amount not made known to the Company, then the Customer must pay that amount contemporaneously with payment of the price to the Company in addition to the price.

4. ORDERS

The Customer acknowledges carefully checking all details of the Scope of Works and goods and services as shown on the quotation and/or order form concerning works, quantities, description, sizes, dimensions, colour, and accessories. Unless otherwise agreed by the Company in writing before or in this quotation only in instances where, at the Customer’s request, the Company has done the measuring, will the Company be responsible for the accuracy of measurements. The Customer’s request for site measurement and inspection Must be in writing before the date of quotation. The Company is not required to attend site meetings unless the Company agrees and should the Customer request that the Company attends at any meetings whether site meetings or other meetings with interested parties, then the request must be in writing and given sufficient time before the meeting to enable the Company to decide whether or not to attend and the Company’s decision whether or not to attend shall be final and not disputed by the Customer.

(a) Unless the Company agrees in writing otherwise, orders placed by the Customer must comply with this quotation and orders must be signed by the Customer or its duly authorized agent and should the Company decide that the Order is not under the Quotation, then the Company is not required to accept the Order.
(b) Once the Customer has accepted the quotation, the contract can only be terminated and any orders under the quotation cancelled with the written consent of the Company. The Customer shall pay to the Company the amount determined by the Company for work done in pursuance of the order up to the date of termination or cancellation and shall pay to the Company compensation as determined by the Company for losses incurred by the Company as a result of the termination or cancellation including but not limited to the costs to the Company of the purchase of any product and materials and the cost of modification of such product and materials for this contract.

5. DELIVERY

(a) The Company may subcontract or transfer work or allow a subcontractor-to-subcontractor transfer work described in the Scope of Works. The company will remain liable to the Customer under this Contract.
(b) The parties must agree to a building schedule indicating the dates upon which the Works are to be carried out. Should delivery or installation of materials by the Company be interrupted or delayed by the failure of the Customer or other parties to adhere to the building schedule, a revised Building Schedule Must be provided in writing and agreed to between the Customer and the Company. The Company shall be entitled to add to the contract sum the amount of such additional costs including any reasonable storage, handling, or demurrage costs which may have been incurred in consequence of the Company procuring materials and/or proceeding with the manufacture and/or delivery to site in conformity with such schedule.
(c) The risk in the goods shall pass to the Customer on delivery to the site nominated by the Customer, provided delivery is between 7.00 am. and 4.00 pm. Monday to Friday or such other time as the Customer and the Company agree. If at the time of such delivery the Customer is absent from the site, delivery shall be deemed to have been made at the place and time and the date stated by the carrier of the goods where the goods are delivered by carrier or if the goods are delivered by the Company then at the time date and place stated by the Company.
(d) Any times or dates quoted for delivery and installation are estimated as accurately as possible, but in the absence of any specific written representations, are not guaranteed nor is any such estimate of the essence of the contract or a condition of the contract and is subject to extension to cover delay caused by the events listed in subclause (i)hereof. No responsibility for loss, damage, or delay from any of the events is accepted by the Company and in such cases, the Customer is not entitled to any compensation of any nature. The Customer shall not be relieved from any obligation to accept or pay for goods because of any delay in delivery or dispatch.
- (i) The customer must give reasonable notice to the Company when giving the notice to commence installation. The Company is entitled to a reasonable extension of time for delivery or installation in respect of delays caused by events occurring which are beyond the reasonable control of the Company including but not limited to:-
  - (a) Changes in the Building Schedule;
  - (b) Lockouts, strikes, or any other industrial conditions;
  - (c) Inclement weather;
  - (d) Breakdowns;
  - (e) Delays in transport;
  - (f) Fire, flood, or other inevitable accident or uncontrollable event-natural or man-made.
  - (g) Non-delivery of raw materials and/or other item required for completion of the order;
  - (h) An extraordinary circumstance which could not have been foreseen and which could not have been guarded against;
  - (i) Not being allowed access to the land where the Works are to be carried out at a time previously agreed to by the Customer for access to the site by the Company;
- (ii) In determining the length of the extension required by any of the above circumstances, the decision of the Company shall be final and shall not be open to question by the customer.
(e) Protection and insurance of the goods delivered shall not be the responsibility of the Company from the time of delivery.
(f) The Company and the Customer agree that delivery of the goods will be affected between 7.00 am. and 4.00 pm. Monday to Friday or such other time as the Customer and the Company agree. Without in any way affecting statutory warranties which have not been lawfully excluded from this Contract, the Customer agrees that it shall as soon as reasonably possible after such delivery but in any event within three days of such delivery notify the Company as to any claim that the delivered goods were in a damaged state or were deficient in supply. All claims Must be in writing and evidenced complete with Photos of the goods which were in a damaged state or are deficient in supply. The Company must be allowed to inspect the goods should the Company so require.
(g) The Customer will give the Company use of sufficient access to the site to allow the Company to proceed with the work under the contract. The Company is not to be impeded in the carrying out of the Company’s work by any persons otherwise using the site. The following services and facilities will be provided by the Customer and the facilities will be provided to the Company at the cost of the Customer, namely:
- i. reasonable and adequate artificial lighting where necessary to be used by the Company in common with others for access or otherwise.
- ii. electricity near the Works including connections for lighting and power as required by the Company. The Company will supply its leads.
- iii. spaces for the erection of shelters for storage of tools, materials, or goods required for the Works.
- iv. permanent accommodation and washing facilities to the extent which the Company is obligated to provide by all relevant legislation, rules, or competent Authority.
- v. cold water and boiling water for tea at reasonable times.
- vi. scaffolding as required for the Works. The initial supply, erection, and final removal of the scaffold will be carried out by the Customer. Adjustment and moving of scaffolds and/or planks required concerning the Works will be carried out by the Customer and the Customer shall bear the cost of hire or other supply of scaffolding for the Works.
- vii. hoisting facilities and craneage including operators must be provided by the Customer and the labour to handle all materials to be hoisted to be supplied by the Customer at the cost of the Customer.
- viii. All Scaffolding, hoisting, and craneage supplied by the Customer to the Company shall conform with the requirements of any Statute or Regulation dealing with scaffolding generally. The Customer warrants the fitness, condition, and suitability of the scaffolding and the Customer indemnifies the Company against any loss or damage, or penalty incurred arising out of the use by the Company, its Sub-Contractors, and employees of the scaffolding or any ladders, hoists, or apparatus used in connection with the Works and Supplied by the Customer to the Company.

6. TITLE

Notwithstanding that risk in the goods may pass to the Customer, property in and title to the goods will not pass to the Customer until those goods and all other amounts owed to Company by the Customer (regardless of any credit period) have been paid for in full and until then:

i. the Customer will hold the goods as fiduciary and agent for the Company.
ii. the goods must be stored separately and, in a manner, enabling them to be identified and cross-referenced to particular invoice(s).
iii. the Customer acknowledges that if it should mix the goods with other products or items such that the goods are no longer separately identifiable then the Customer and the Company will be owners in common of the new product.
iv. the Customer may sell the goods in the ordinary course of its business as agent for the Company and will hold the proceeds of sales in a separate account on trust for the Company and account to the Company for those proceeds.
v. the Company may require the Customer to return the goods to it on demand and may enter upon the premises of the Customer to inspect, repossess the relevant goods.

7. SPECIFICATION

(a) The Company standard range of product and services are under standard industry/manufacturers specifications and are suitable for installing within the confines of the manufacturers’ recommendations and it is the Customer’s responsibility to advise the Company in writing if the product and or service are required to comply with any specifications and ratings or any other relevant building code, or any applicable Australian Standard. This advice must be provided in writing at the time of quotation or if not given at the point of quotation, the Company maintains the right to treat all description and advice previously given as void, and a new quotation must be given to the Customer, taking into consideration the new forthcoming specifications, standards or design variations or any change whatsoever to the original quotation.
(b) The Customer must inform the Company in writing the specific purpose set forth on the quotation request or order form for which the goods are to be used and this purpose must remain within the confines of the manufacturers intent for the usage of the product
- 1. If the Customer does not advise the Company of the requirements outside of the manufacturer’s recommendations, Building Code, or Australian Standard under paragraph (a), then the Customer must adhere to the manufacturer’s recommendations.
- 2. If the Customer specifies other specifications with the purported acceptance of the quotation, then the Company has the right to withdraw the quotation and not be bound by any agreement with the Customer whatsoever.
- 3. If the Customer uses the product outside of the manufacturer’s recommendations, then the Company is not responsible for any injury or damage caused.

8. WARRANTY

(a) The Customer’s attention is drawn to Schedule 2, Section 64A of the Act which has the effect of enabling suppliers in respect of contracts for the supply of goods or services not being goods or services of a kind ordinarily acquired for personal, domestic, or household use or consumption to limit their liability in certain circumstances for breach of certain of the guarantees /conditions and guarantees /warranties implied by the Act.
(b) Conditional upon the goods or services provided by the Company not being of a kind ordinarily acquired for personal, domestic, or household use or consumption and subject to any specific guarantee/warranty or condition set forth herein and any guarantee/warranty as to title implied by Section 51, 52 or 53 to the Act and provided that in the circumstances it is fair and reasonable the liability of the Company is limited:-
- (1) In the case of goods, any one or more of the following as determined by the Company;
  - i. The benefits conferred by guarantees and warranties herein set out are in addition to all other guarantees, warranties, rights, and remedies in respect of the goods and services provided by the Competition and Consumer Act 2010 (‘the Act’) and applicable State and Territory laws to the extent they cannot be excluded or modified by the terms of this quotation.
  - ii. The Company provides the following warranties:-
  - iii. The Company further warrants that services will be rendered with due care and skill and the Company accepts no responsibility for breakage or damage to property (except for faulty workmanship or materials provided by the Company). These guarantees/warranties shall be effective provided the following general and specific guarantee/warranty conditions are complied with:
  - iv. the product is installed and maintained under the Company and manufacturer’s and/or the appropriate Australian Standards, where applicable, and has not been subject to misuse, abuse, or neglect.
  - v. manufacturing standards and tolerances are not deemed defects, nor are industry variations in the colour of materials and or any finish.
  - vi. the guarantee/warranty is Void if all maintenance and repairs are Not carried out by the Company or personnel or authorised agents recommended and approved by the Company.
  - vii. Proof of regular service and maintenance must be provided to effect full guarantees /warranties and this must be provided on request by the Company. The replacement of the goods or the supply of equivalent goods; or
    - i. the repair of goods; or
    - ii. the payment of the cost of having the goods repaired; or
    - iii. the refund of sums of money paid.
- (2) In the case of services, one of the following as determined the Company;
  - i. the supplying of the services again; or
  - ii. the payment of the cost of having the services supplied again.
  - iii. If the goods or services supplied are not under the warranties then the Customer will advise the Company in writing to replace or repair the goods, resupply the services, or make the payment.
(c) To the full extent permitted by law, but subject always to the above terms, all guarantees/conditions and guarantee/warranties not expressly contained herein are hereby expressly negated and excluded.
(d) Subject to clause viii. Warranty above, the Company’s liability for any breach of contract or any negligent act or omission is limited to the cost of replacement of the goods or supply of equivalent goods and shall not extend to consequential loss, loss of profits or any liability for damage to property or death of or injury to persons howsoever caused.
(e) If the goods or services provided by the Company are acquired for personal, domestic, or household use and are not of merchantable quality or fit for the particular purpose advised by the Customer to the Company or in accord with a description or sample given by the Company to the Customer or free from any legal restriction on ownership then the Customer shall have the right to return the goods and claim a refund; and may be entitled to consequential damages.
(f) This quotation is only for the above-mentioned systems and their relevant accessories as stated in the Scope of Works if mentioned as a proprietary system(s). The Company provides Manufacturers, Distributors, Agents or Importers standard range of components and systems. The Company passes on to the Customer the warranties herein referred to provide by the Manufacturer, Distributor, Agent, or Importer.

9. VARIATIONS

(a) The Company need not vary the work under the contract except where the Customer first provides to the Company in writing the scope of the building works the subject of that variation. The Company is bound only to carry out a variation which is not within the general scope of the contract and when only the Company can reasonably accommodate the variation and the Company first agrees to carry out the variation. The Company has a right to request the Customer to approve a variation, in writing, whether it is for the convenience of the Company, or if the Company so requests. Should the Customer fail to approve the variation, then the dispute shall be referred to the dispute resolution provisions of this contract under clause 11.
(b) Where the Customer approves the variation or where the Customer seeks the variation then the Company shall not be required to carry out the variation until the price for the variation is agreed.
(c) The Works shall only be varied with the prior written consent of the Company.
(d) The Price of any variation as agreed by the parties shall be added to or deducted from the contract sum.
(e) The cost of any additional work arising from site conditions which could not have reasonably been discovered by the Company before the date of commencement of the Works shall be priced as a variation and added to the Price to be payable under this quotation.
(f) The Company shall if the Company elects are entitled to add the cost of any such variation to a progress claim and be paid under the progress claim provisions of this quotation.
(g) Should the parties fail to agree on the price for the variation, then the Customer will pay the Company, or the Company will allow the Customer the amount ascertained under the dispute resolution provision in Clause 11

10. INDEMNITY

The Company shall not be liable for and the Customer shall indemnify and keep the Company indemnified against any claim by or loss or damage to any person or property directly or indirectly occasioned by or arising from the use or operation or possession of the goods other than by the Customer.

11. DISPUTE AND JURISDICTION

a) The proper law of all contracts arising between the Company and the Customer is dependent upon Queensland State Law and the parties agree to submit to the jurisdiction of the Courts and Tribunals of the State of Queensland.
b) If a dispute arises out of or relates to the contract between the Customer and the Company a party may not commence any Court or Arbitration proceedings relating to this dispute unless that party has participated in mediation under paragraphs (c) and (d)of this clause. This paragraph does not apply to an application for urgent interlocutory relief.
c) A party to this contract claiming that a dispute has arisen from the contract (“the Dispute”) must give a written notice specifying the nature of the dispute (“the Notice”) to the other party or parties to the contract. The parties must then participate in mediation under this clause.
d) If the parties do not agree, within seven days of receipt of the Notice (or within a longer period agreed in writing by them) on:-
- I. the procedures to be adopted in a mediation of the Dispute; and
- II. the timetable for all the steps in those procedures; and
- III. the identity and fees of the mediator; then: –
- IV. the President or the head office of the Australian Glass and Window Association (AGWA) will appoint a mediator, determine the mediator’s fees and determine the proportion of those fees to be paid by each party (to be in equal shares unless otherwise agreed by the parties);
- V. the parties must mediate the Dispute: –
  - a. With the mediator appointed under paragraph 12(d)(iv) above; (c) in good faith, and accordance with the mediation rules of the Australian Glass and Window Association (AGWA) or in the absence of such rules under the directions of the mediator.
  - b. If a party commences proceedings relating to the Dispute other than for urgent interlocutory relief, that party must consent to Court orders that: –
    - i. The proceedings relating to the Dispute be referred to mediation by a mediator; and
    - ii. If the parties do not agree on a mediator within seven days of the order, then the mediator appointed by the
      President or the head officer; Australian Glass and Window Association (AGWA) will be deemed to have been appointed by the Court.
- e) If a party: –
  - (i) Refuses to participate in a mediation of the Dispute to which it earlier agreed; or
  - (ii) Refuses to comply with paragraph (d) (v) of this clause, notice having been served under paragraph (c); then
  - (iii) That party is not entitled to recover its costs in any Court proceedings or arbitration relating to the Dispute even if that party is successful; and
  - (iv) That party is deemed to have consented to a decree of the Supreme Court of Queensland that it will specifically perform and carry into execution paragraph (d)(v) of this clause.

12. CREDIT CONDITIONS

(a) Customers with approved credit accounts must make payment in full for all goods supplied or services rendered no later than the APPROVED CREDIT TERMS i.e. 14 days, following delivery of goods or provision of services.
(b) Unless otherwise agreed in writing, a Customer without an approved credit account must pay a deposit equal to the net order value as specified in the quotation upon placing the order.
(c) Failure to comply with the above terms of payment will without further notice constitute a breach of contract and the Company may treat the whole contract as repudiated, and act accordingly including the right to affirm or terminate this contract. If the Company affirms this contract it may sue the Customer for damages, specific performance or damages, and specific performance. If the Company terminates this contract it may do all or any of the following: –
- i. Recover the product.
- ii. Sue the Customer for damages.
- iii. Resell the product.
The Company may claim damages for any loss it suffers as a result of the Customer’s default including its legal costs on an indemnity basis. The Company may, without prejudice to any other rights it may have, refuse to supply, or deliver further products to the Customer detailed in the quotation/contract or otherwise until the Customer has remedied the default.
(d) Should payment remain outstanding beyond the Company payment terms as outlined in subclauses 13 (a), the Customer agrees to pay interest on all amounts outstanding from the due date until the date of payment at 1.5% per month.
(e) If in the opinion of the Company the creditworthiness or credit standing of the Customer alters from that indicated by the Customer in an application for credit executed by the Customer, the Company has the right to immediately stop supply to the Customer without being obligated to give the Customer any reason whatsoever and has the right to demand payment in full for an outstanding account within seven (7) days.
(f) Should the Company exercise its right under subclause above the Company may refuse to deliver further supplies to the Customer unless such supplies are paid for by the Customer in cash before delivery.
(g) A statement in writing made up from the books of the Company and signed by any manager or accountant of the Company as to sums of money owing in respect of the account of the Customer at the date mentioned shall be prima facie evidence that such money is so owing.
(h) Should payment remain outstanding beyond the Company’s payment terms the Customer is liable for all costs including legal costs (on an indemnity basis) and mercantile agents fees incurred by the Company in recovering the amount outstanding.
(i) If the Customer carries on business under a business name the Customer shall notify the Company in writing of any change of ownership of the business name within seven days of the change and agrees to indemnify the Company against loss or damage suffered by the Company as a result of the Customer’s failure to notify the Company of such change.

13. PATENTS

a) Where goods are manufactured to the Customer’s specification, the Customer indemnifies the Company against any liability to or action by a third party for infringement or alleged infringement of a patent, registered design, trademark, copyright, or intellectual property rights arising from the Company complying with the Customer’s specification.
(b) No right or license is hereby granted to the Customer to use any patent, registered design, trademark, copyright, intellectual property, or other industrial property rights of the Company or otherwise.

14. PRODUCTION VARIATION

The Company reserves the right to supply goods of the more recent or modern design if the cost of same is no higher and their performance equals or exceeds that of the Goods originally specified.

15. TRANSFER

This contract cannot be assigned or transferred by the Customer to any third party without the prior written consent of the Company which consent may be given or withheld at the sole discretion of the Company.

16. WAIVER OF CONDITIONS

Failure by the Company to insist upon performance of any term warranty or condition of the contract shall not be deemed a waiver thereof or of any rights, the Company may have, and no express waiver shall be deemed a waiver of any subsequent breach of any term warranty or condition.