“ScreenAway” means ScreenAway Australia Pty Ltd ACN 631 509 316.
“Customer” means the entity that has contracted with ScreenAway to buy Goods and/or Services.
“Goods” means any goods supplied by ScreenAway to the Customer (or ordered by the Customer but not yet supplied) including and in no way limited to blinds, screens, shutters and other related products.
“Services” means any services supplied by ScreenAway to the Customer (or ordered by the Customer but not yet supplied) including, and in no way limited to, packaging Goods, delivering Goods, installation, repair, service and warranty.
“Price” means the cost of the Goods and/or Services as agreed between ScreenAway and the Customer and includes all out of pocket expenses ScreenAway incurs on the Customer’s behalf subject to clause 5 of this contract.
2.Acceptance And Minimum Order
Any instructions received by ScreenAway from the Customer for the supply of Goods and/or Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
These Terms and Conditions of Trade apply and are to be read together with the relevant request provided by a Customer within an order as to the size, quantity, fabric, colour, type, style, brackets, mountings, and unique requirements of Goods and/or Services).
ScreenAway will be taken to accept instructions for an order only when ScreenAway confirms the order by:
Commencing any action required to supply the Goods and/or Services; or
Providing written or verbal notification to the Customer that ScreenAway has accepted that order.
Payment of a non-refundable fifty percent (50%) deposit must be paid in full on acceptance of an order by ScreenAway, prior to the order being released for manufacture, unless the Customer and ScreenAway have agreed otherwise.
3.Precedence
The Customer acknowledges that these Terms and Conditions of Trade take precedence over any terms and conditions contained in any document provided by the Customer.
4.Privacy Act 1988 (As Amended)
ScreenAway collects personal information about the Customer (if a sole trader, individual trustee, or partnership of individuals) for the purposes set out in its Privacy Policy and its Credit Reporting Policy. Both of these policies may be located at screenaway.marquis.ireckon.com. A hardcopy of these policies can also be provided to the Customer free of charge, upon request.
The Privacy Policy sets out: the personal information ScreenAway collects; how ScreenAway collects and uses this information; how the Customer may access or correct it; and how the Customer may make a complaint in respect of ScreenAway’s management of the information;
The Credit Reporting Policy sets out: the types of credit related personal information ScreenAway collects; how it is collected, why it is collected; how ScreenAway may use and disclose the credit related personal information, including the credit reporting bodies to which ScreenAway is likely to disclose the Customer’s credit related personal information to; and how a complaint may be made in respect of ScreenAway’s management of the credit related personal information.
By the Customer providing instructions to ScreenAway for the supply of Goods and/or Services, the Customer is consenting to ScreenAway collecting, handling, using, disclosing and otherwise dealing with the Customer’s personal information (including credit related personal information) in accordance with the terms of ScreenAway’s Privacy Policy, its Credit Reporting Policy and in accordance with Australia’s privacy laws.
5.Price
The Price shall, at ScreenAway’s sole discretion, be:
As set out in ScreenAway’s most recent price list (irrespective of whether a Customer has a copy of that price list of not) and may be increased by ScreenAway; and/or
as stated on any invoice provided by ScreenAway to the Customer; and
as current at the date of supply.
6.Payment
Subject to clause 6.2, payment of the Price shall be due on date/s determined by ScreenAway, which may be:
on delivery of the Goods and/or supply of the Services;
before delivery of the Goods and/or supply of the Services;
the due date specified on ScreenAway’s invoice;
in the absence of any notification of the due date by ScreenAway, it shall be due 14 days from the date of invoice.
Payment for any amount outstanding shall be deemed immediately due and payable in any of the following circumstances:
there is non-payment of any sum by the due date;
ScreenAway forms the view that the Customer will not pay any sum by its due date;
the Customer is bankrupted or enters administration, liquidation or receivership;
a Court judgment is entered against the Customer and remains unsatisfied for seven (7) days;
Any material adverse change in the financial position of the Customer.
If a delivery for Goods requires extra packaging than ordinarily supplied, the Customer shall be liable for a package fee as to be determined by ScreenAway from time to time.
Interest accrues on any amount owing after the due date at a per annum rate not exceeding the Commonwealth Bank of Australia’s overdraft rate (as amended from time to time) plus 2.0%, calculated daily from the first day overdue until payment.
All expenses, disbursements, collection and legal costs incurred by ScreenAway in connection with the enforcement of any rights and/or preservation of any rights contained in this contract shall be paid by the Customer on a full indemnity basis.
For the purposes of clause 6.4, the Customer acknowledges that collection costs may be calculated on a commission basis at a percentage rate of up to 20% of the amount due and expressly agrees to pay for those expenses, irrespective of the amount of work actually performed by the collection agent.
ScreenAway is entitled to terminate the provision of any credit facility with the Customer and suspend the supply of further Goods and/or Services to the Customer on credit at any time, and in any event, where an invoice remains unpaid for more than seven (7) days after the due date of an invoice.
Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until it results in ScreenAway receiving cleared funds for the entire amount of the negotiable instrument.
Where settlement discount applies, no settlement discount will be applied unless all monies for outstanding invoices are paid within agreed terms.
7.Special Buy-In Goods Ordered By The Customer
Where the Customer orders any Goods from ScreenAway that ScreenAway does not have in stock, such that ScreenAway is required to order the Goods from a third party (known as a “Special Buy-In”), the order is non-cancellable and the Customer remains liable to pay for the Goods once the Customer has made the order.
8.Credit Card Fee
ScreenAway reserves the right to (in its sole discretion) to charge a fee on payments (“fee”) made by Mastercard or Visa credit or debit cards.
ScreenAway does not accept payment by Diners Club or American Express.
Subject to clause 8.7, if the Customer pays an invoice in full within 14 days from the date of invoice, ScreenAway will not charge any fee.
If the Customer pays an invoice using a card on or after the 14th day from the date of invoice, ScreenAway may charge the Customer 1.8% of the amount(s) paid for payments by Mastercard or Visa credit or debit cards.
ScreenAway may invoice the Customer for a fee separately to the Goods and/or Services.
Any fee payable by the Customer under this clause 8 is in addition to any other fee or charge ScreenAway may add to the Customer’s account. For example, ScreenAway may charge the Customer interest on outstanding amounts in accordance with these conditions in addition to the fee.
If ScreenAway decides to introduce a fee other than or in addition to the fee described in these Terms and Conditions of Trade, ScreenAway will notify the Customer in writing at least fourteen (14) days before its introduction.
9.Risk To Goods And Delivery
Unless a Customer notifies ScreenAway in writing that the Customer will collect the Goods once manufacture is complete, and ScreenAway accepts those written instructions, ScreenAway will upon formation of a contract between ScreenAway and the Customer, be taken to have been appointed as the Customer’s agent to arrange for delivery and insurance of the Goods at the Customer’s cost and risk.
Where ScreenAway arranges delivery, risk in any Goods shall pass when the Goods are delivered to the Customer or to the location nominated by the Customer. It is the Customer’s obligation to insure the Goods from the point of delivery.
If a Customer specifies in writing that it will collect the Goods from the premises ScreenAway once the manufacture of those Goods is completed, and such Goods are not collected within three (3) weeks of their manufacture and completion (which the Customer shall be notified of in writing), ScreenAway may:Continue to store the Goods on the Customer’s behalf (whether on site or at another location); or
Arrange for the delivery of the Goods to an address provided by the Customer; and
In each case, any and all costs incurred by ScreenAway relating to the safe-keeping, transportation, freight, storage, handling, insurance, government, statutory or regulatory charges that relate to the supply of the Goods (if any)(Delivery Costs) will be payable by the Customer to ScreenAway, together with a storage fee/s payable to ScreenAway (in an amount set by ScreenAway from time to time) in respect of each day from completion of the Goods that such Goods remain in possession of ScreenAway (Storage Fees).
Until such time as the Customer has made payment of the Delivery Costs and Storage Fees for the Goods, ScreenAway is entitled to retain possession of the Goods.
Where the Customer arranges freight to its nominated location, risk in any Goods shall pass when its nominated agent/carrier collects the Goods from ScreenAway.
For the purposes of clause 9.5, the cost of freight and insurance to the point of delivery shall be at the Customer’s expense and shall form part of the Price.
The Customer is responsible for unloading the Goods at the point of delivery.
Any representation of a date for delivery or the cost of delivery is an estimate only and ScreenAway will not be liable for any loss or damage howsoever arising if the Goods are not delivered by a nominated delivery date.
10.Title And Personal Property Securities Act 2009 (PPSA)
Goods
Whilst risk in the Goods passes on delivery, legal and equitable title in the Goods shall remain with ScreenAway until it has received payment in full for all monies owed by the Customer.
Until ScreenAway has received payment in full for all monies owed by the Customer, ScreenAway reserves the following rights:
legal and equitable ownership of the Goods;
the right to enter the Customer’s premises and retake possession of the Goods;
the right to keep or resell any Goods repossessed under sub-clause 10.1.2.2; and
any other rights it may have at law or under the PPSA.
Where, pursuant to sub-clause 10.1.2.3:
ScreenAway resells the Goods repossessed, it is agreed that ScreenAway may credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs); or
ScreenAway retains possession of the repossessed Goods, it is agreed that ScreenAway may credit the Customer’s account with the invoice value less such sum as ScreenAway reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
ScreenAway shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of any action taken to repossess the Goods.
If the Goods are mixed (or commingled) with other property so as to be part of or a constituent of any new product, title to these products shall be deemed to be assigned to ScreenAway as security for the full satisfaction by the Customer of the full amount owing between ScreenAway and the Customer.
Until ScreenAway receives payment for Goods in full, the Customer acknowledges that ScreenAway has a Purchase Money Security Interest (PMSI) which attaches over the Goods and their proceeds and a Security Interest in relation to other amounts owed by the Customer to ScreenAway.
General
Upon assenting to these Terms and Conditions of Trade, the Customer acknowledges and agrees that these Terms and Conditions of Trade constitute a Security Agreement for the purposes of the PPSA.
The Customer undertakes to do anything (such as obtaining consents, producing documents, producing receipts and getting documents completed and signed) which ScreenAway asks and considers reasonably necessary for the purposes of:
ensuring that a PMSI and/or Security Interest is enforceable, perfected and effective;
enabling ScreenAway to apply for any registration, or give any notification, in connection with the Security Interest created under this Agreement so that the PMSI and/or Security Interest has the priority required by ScreenAway.
To the extent permitted by law, the Customer irrevocably waives its right to:
receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA;
redeem the Goods under section 142 of the PPSA;
reinstate this Agreement under section 143 of the PPSA;
receive a Verification Statement.
Nothing in clause 10 prevents ScreenAway from taking collection or legal action against the Customer to recover any monies owed from time to time.
11.Disputes
Claims for short delivery or damaged Goods will only be recognised when notification is received within 24 hours of the Customer’s receipt of the Goods, or 7 days from the dispatch date of the Goods, whichever is the lesser amount of time.
No claims relating to the Goods will be admitted if the Goods:
have been cut, processed, mixed, marked or otherwise made less saleable;
are not stored as per the manufacturers storage requirements which includes storing the Goods in a cool, dry place away from direct sunlight;
have been contaminated from foreign matters and/or insects;
are not in the original condition and packaging is not complete in every detail.
12.Liability
All implied conditions, warranties and undertakings other than the statutory guarantees set out in Schedule 2 of the Competition and Consumer Act 2010 (“CCA”) are expressly excluded to the extent permitted by law.
If Goods are, or any component part of the Goods is, supplied to ScreenAway by a third party, any warranty offered by ScreenAway in relation to the Goods or component part of the Goods will be limited to ScreenAway’s right of redress (if any) against that third party.
If a Customer has insisted that Goods be manufactured by certain specification, after ScreenAway has notified the Customer that those specifications are not recommended by ScreenAway, ScreenAway accepts no liability as to the structure or performance of those Goods or for any construction, infrastructure or other attachment to which the Goods are connected or fixed.
The Customer must install Goods in accordance with the specific requirements detailed in the documentation provided with the Goods and have the Goods installed by a person qualified to do such installation (if applicable). ScreenAway shall not be liable for any loss or damage incurred by the Customer and/or any third party in relation to Goods that have been improperly installed or dealt with.
Where the Goods are of a kind other than goods ordinarily acquired for personal, domestic or household use, then ScreenAway’s liability is limited, at its option, to anyone or more of the following:
the replacement or supply of the equivalent of the Goods; or
the payment of the costs of replacing the Goods or acquiring their equivalent.
Where the Services are of a kind other than services ordinarily acquired for personal, domestic or household use, or any other use expressly agreed upon by ScreenAway, then ScreenAway’s liability is limited at its option to:
supplying the Services again; or
the payment of the costs of supplying the Services again.
Subject to the Customer’s rights under Schedule 2 of the CCA, ScreenAway shall not be liable for:
any loss or damage of any kind whatsoever, arising from the Goods and/or Services, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from the Goods and/or Services; and
the Customer shall indemnify ScreenAway against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of ScreenAway or otherwise, brought by any person in connection with any matter, act, omission, or error by ScreenAway, its agents or employees in connection with the Goods and/or Services.
13.Cancellation
Orders placed with ScreenAway cannot be cancelled without the written approval of ScreenAway. In the event ScreenAway accepts the cancellation of any order placed, it shall be entitled to charge the Customer for any and all costs, expenses and losses (including loss of profit) incurred by ScreenAway due to that cancellation, plus a cancellation fee for processing and acceptance of the Customer’s order and request for cancellation at its absolute discretion.
Any Goods which are returned for the purposes of clause 13.1 must be in the original condition and packaging and must be complete in every detail.
14.Goods Returned For Credit
ScreenAway may allow a credit at its sole discretion, but in any event ScreenAway will not accept Goods for a credit after the expiry of 2 days from the date of the original invoice relating to the Goods to be returned.
Special Buy-Ins cannot be returned for a credit.
ScreenAway reserves the right to charge a restocking fee on any Goods accepted for a credit.
In all cases of returning Goods for credit, the Customer must quote the original invoice or delivery docket and the Customer must prepay return freight.
Goods returned for credit must be accompanied by the original invoice or delivery docket and must be in the original packaging.
15.Charge
The Customer hereby charges in favour of ScreenAway all of the Customer’s estate and interest in any land, freehold or leasehold, in which the Customer now has or which it may later acquire any such interest in, with payment of all monies owed by the Customer to ScreenAway from time to time and hereby consents to ScreenAway lodging a caveat or caveats which note ScreenAway’s interest.
16.Jurisdiction
These terms and conditions and all matters concerning the business relationship between ScreenAway and the Customer shall be governed by the law of the State of South Australia and the parties submit to the exclusive jurisdiction of the Courts of South Australia for the conduct of any litigation.
17.Miscellaneous
ScreenAway shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
Failure by ScreenAway to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of its rights or obligations under this contract.
If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected.
Any variation to the terms and conditions contained in this contract must be agreed to in writing by ScreenAway for it to have any legal effect.
ScreenAway may vary these conditions at any time. The Customer will be notified of any variations in writing.
