TERMS AND CONDITIONS OF SUPPLY AND INSTALLATION (“TERMS”)
SMOKE ALARM SOLUTIONS PTY LTD ABN 97 604 793 688 (“SUPPLIER”)
1. In these Terms:
1.1 “Agent” means the real estate agent which manages the Premises on behalf of the Landlord as specified in the Application Form;
1.2 “Application Form” means the online application form for the Goods available on the Supplier’s website;
1.3 “Landlord” means the customer of the Goods as specified in the Application Form, being the owner of the Premises, as detailed in the Invoices;
1.4 “Direct Debit Request” means the direct debit request form completed by the Landlord in the Application Form;
1.5 “Direct Debit Terms and Conditions” means the terms and conditions for a Direct Debit Request as available from the Application Form;
1.6 “Goods” means the goods and services to be supplied by the Supplier to the Landlord as detailed in the Invoices, including the supply and installation of smoke alarms at the Premises;
1.7 “GST” has the meaning given in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999 (Cth);
1.8 “Guarantee” means a deed of guarantee, indemnity and charge in the form as set out at the end of the Terms;
1.9 “Invoice” means the invoice(s) issued by the Supplier to the Landlord, which details the Goods and the Price, to which these Terms are annexed
1.10 “PPSA” means the Personal Property Securities Act 2009 (Cth);
1.11 “Premises” means the premises in respect of which the Goods are to be supplied as set out in the Application Form and Invoices;
1.12 “Price means the total amount payable for the Goods as detailed in the Invoices, including applicable GST, and delivery costs; and
1.13 “Term” means the term of payment of the Price as nominated in the Application Form (as extended by the continued supply of Goods by the Supplier after the first anniversary of the installation of the Goods (as applicable)).
2. The Supplier may determine in its absolute discretion as to whether it will supply the Goods to the Landlord at the Premises as requested by the Landlord in an Application Form.
3. If the Supplier agrees to supply the Goods to the Landlord at the Premises, the Landlord agrees to purchase the Goods on these Terms.
4. These Terms will apply to the supply of Goods by the Supplier to the Landlord despite any conflicting terms proposed by the Landlord, unless waived in writing by the Supplier.
5. The Landlord will provide the Agent’s contact details to the Supplier and authorises the Agent to provide instructions to the Supplier regarding the supply of the Goods.
6. The Landlord will notify the Supplier if it intends to sell the Premises. The Landlord acknowledges that it will remain liable to pay the Price in full to the Supplier notwithstanding whether it sells the Premises prior to the end of the Term and the total Price being paid in full to the Supplier.
7. The Landlord will comply with all applicable laws and standards regarding the Goods at the Premises.
8. The Landlord must provide the Supplier with all necessary information for the Supplier to effectively and efficiently supply the Goods to the Landlord, including without limitation notifying the Supplier of any changes to the information already provided to the Supplier. The Landlord acknowledges that:
8.1 the Supplier relies on the information provided by the Landlord and it is not the responsibility of the Supplier to ensure that the information the Landlord provides is correct;
8.2 the Landlord indemnifies and keeps indemnified the Supplier and its related bodies corporate against any and all claims suffered or incurred by the Supplier arising out of the Landlord providing the Supplier with inaccurate or misleading information regarding the Premises;
8.3 any errors relating to dates, tenant details, details of the Premises or addresses provided by the Landlord may delay delivery and or completion of the supply of the Goods (“Delay”); and
8.4 the Supplier will not be liable to the Landlord for any loss, damages, costs or claim resulting from a Delay or any incident which occurs at the Premises prior to the Supplier’s attendance at the Premises as a result of the Delay.
9. The Landlord must complete a Direct Debit Request to the Supplier if it does not elect to pay the Price upfront in full to the Supplier.
10. If the Landlord completes a Direct Debit Request, it must agree to the Direct Debit Terms and Conditions.
11. Unless otherwise agreed by the Supplier in writing and subject to clause 36, the Landlord must pay the Price without deduction in accordance with the payment terms detailed in the Invoices, Application Form and the Direct Debit Request for the Term.
12. If the Landlord fails to make a monthly instalment payment of the Price, the Supplier may issue a demand for the outstanding amount. If the Landlord fails to pay the outstanding amount within 14 days after such demand is made on the Landlord, the Supplier may, in its absolute discretion, declare the total outstanding Price immediately due and payable.
13. In the event of non-payment of the Price in accordance with these Terms, the Supplier may require the Landlord to pay all reasonable collection expenses, legal costs and any other expenses incurred by the Supplier in connection with the non-payment by the Landlord.
14. If the Price is not paid by the Landlord to the Supplier in accordance with these Terms, the Landlord acknowledges and agrees that the Supplier has the right (without prejudice to any other rights and remedies it may have) to recover, remove and/or resell the Goods. For that purpose, the Supplier’s employees, agents or workers may enter the Premises without committing a trespass.
15. The Supplier will have no obligation to make good any reasonable damage caused by the recovery or removal of Goods pursuant to clause 14 and the Supplier will not be liable for and the Landlord will indemnify the Supplier against any costs, claims, damages or losses suffered by the Landlord as a result of such removal.
Title and risk
16. In relation to all Goods:
16.1 title in the Goods will not pass to the Landlord until the Price is paid in full to the Supplier;
16.2 risk in the Goods will pass to the Landlord immediately upon delivery of the Goods;
16.3 until the Supplier receives full payment of the Price, the provisions of clause 20 apply and the Supplier has the right (without prejudice to any other rights and remedies it may have) to recover, remove and/or resell the Goods free from any claims by the Landlord in accordance with clause 14; and
16.4 the Landlord will indemnify the Supplier against any costs, claims, damages or losses suffered by the Supplier or a third party as a result of the Landlord’s inability to pay the Price for the Goods.
17. In relation to all Goods, if the Landlord has not paid the total Price but sells or otherwise disposes of the Goods or any part of them, the monies received in respect of the disposal of the Goods will be held on trust by the Landlord for the Supplier and will be payable immediately to the Supplier on demand.
18. The Supplier will use reasonable endeavours to deliver and install the Goods to the Landlord on the dates as advised to the Landlord by the Supplier.
19. The Supplier will not be liable for any claim incurred or suffered by the Landlord as a result of delay in the delivery of the Goods by the Supplier outside of the Supplier’s reasonable control.
20. Where the Supplier has supplied Goods to the Landlord in accordance with these Terms but where title in the Goods has not yet passed to the Landlord, the Landlord acknowledges and agrees that:
20.1 these Terms constitute a Security Agreement for the purposes of the PPSA;
20.2 the Landlord grants the Supplier a purchase money security interest (“PMSI”) under the PPSA in the Goods and their proceeds to secure all amounts owed to the Supplier by the Landlord;
20.3 the Supplier may register the PMSI on the Personal Property Securities Register (“PPSR”);
20.4 it will undertake to do all things necessary and provide the Supplier on request all information the Supplier requires to register a financing statement or financing change statement on the PPSR;
20.5 it undertakes not to change its name in any form or other details on the PPSR without first notifying the Supplier; and
20.6 it will, if required by the Supplier, pay to the Supplier the cost of registering and maintaining registration of the Landlord’s PMSI on the PPSR, within 14 days of the request.
21. The Supplier need not give any notice under the PPSA (including a verification statement or a financing change statement) unless the notice is required by the PPSA and cannot be excluded.
22. No party may disclose information of the kind referred to in section 275(1) of the PPSA (except where the parties may do so and where required due to the operation of section 275(7) of the PPSA) and the Landlord must not authorise the disclosure of such information.
23. The Landlord agrees that, to the maximum extent permitted by law, it waives any rights it may have pursuant to, and the parties contract out of, sections 95, 118, 123, 125, 128, 129, 130, 132(1), 132(4), 135, 142 and 143 of the PPSA.
24. The Landlord acknowledges that, unless otherwise defined in these Terms, the terms and expressions used in clauses 20 to 24 (inclusive) have the meanings given to them, or by virtue of, the PPSA.
25. Any Goods not manufactured by the Supplier will be subject to the manufacturer’s warranty (if any).
26. Except for any manufacturing warranty referred to in clause 25 or as required by mandatory operation of the law, all conditions or warranties in respect of the Goods, express or implied, statutory or otherwise, are excluded.
27. To the maximum extent permitted by law, the sole liability of the Supplier to the Landlord in respect of any defective Goods is (at the election of the Supplier) limited to:
27.1 the resupply of the defective Goods to the Landlord; or
27.2 or refund the price paid by the Landlord for the defective Goods.
28. The Landlord will indemnify and continue to indemnify the Supplier against any claim arising from or in relation to the Landlord using the Goods for a purpose for which they were not designed.
29. To the maximum extent permitted by law, the Landlord indemnifies and keeps indemnified the Supplier and its related bodies corporate against any and all claims suffered or incurred by the Supplier arising out of:
29.1 any negligent act or omission of the Landlord;
29.2 any breach by the Landlord of these Terms or any applicable law; or
29.3 any action or trespass resulting from the Supplier entering the location in accordance with clause 14,
except to the extent that the claim results from the negligence, fault or willful misconduct of the Supplier.
30. To the maximum extent permitted by law, the Supplier indemnifies and keeps indemnified the Landlord against any and all claims suffered or incurred by the Landlord arising out of:
30.1 any negligent act or omission of the Supplier;
30.2 any breach by the Supplier of these Terms or any applicable law,
except to the extent that the claim results from the negligence, fault or willful misconduct of the Landlord.
31. Notwithstanding anything in clauses 29 and 30 of these Terms, to the maximum extent permitted by law neither party will be liable to the other for any indirect or consequential loss or damage (including loss of profit or loss of opportunity).
32. These limitations and indemnities continue after the expiration or termination of these Terms.
33. These Terms may be immediately terminated by the Supplier if:
33.1 the Landlord is in breach of these Terms and fails to remedy that breach within 14 days of receiving notice to do so;
33.2 the Landlord fails to pay any amount outstanding to the Supplier after receiving 14 days’ prior notice that the amount is outstanding; or
33.3 the Landlord becomes bankrupt or insolvent.
34. Either party may terminate these Terms immediately by written notice to the other if:
34.1 the defaulting party commits a material breach of these Terms and that breach is not rectified within 30 days of being notified; or
34.2 the defaulting party is presumed insolvent within the meaning of any applicable law, is made bankrupt, is placed into liquidation or any other form of administration relating to insolvent debtors or has a third party take possession of any substantial asset(s) of the defaulting party or if any proceedings are issued or an event occurs intended to lead to any of those consequences.
35. The Landlord may terminate these Terms on, or at any time after, the first anniversary of the installation of the Goods by giving the Supplier 30 days’ prior written notice. The Supplier will take all reasonable steps to send a reminder to the Landord (via its Agent) at least 30 days prior to the each anniversary of the installation of the Goods.
36. If either party terminates these Terms in accordance with clauses 33 and 34 or if the Landlord terminates these Terms in accordance with clause 35, the Landlord will pay the outstanding balance of the Price to the Supplier within seven days after the date of termination.
37. Except where disclosure is required by law or must be made to a legal adviser, both the Supplier and the Landlord will keep confidential these Terms and any other information that is designated by the Supplier as confidential or any information that the Landlord knows or ought to reasonably know is confidential.
38. If GST is imposed on any supply made under or in accordance with these Terms, the Landlord must pay the Supplier, an amount equal to the GST payable on or for the taxable supply, subject to the Landlord receiving (if required by law) a valid tax invoice in respect of the supply. Payment of this amount must be made at the same time as payment for the taxable supply is required to be made in accordance with these Terms.
39. These Terms are to be governed and interpreted in accordance with the laws of the State of Queensland. The parties agree to submit themselves to the non-exclusive jurisdiction of the courts of Queensland and any competent appellate courts.
40. Any notice to be given by one party to the other must be signed by the party giving the notice or by one of its duly authorised officers. The notice may be faxed to the intended recipient’s facsimile number or e‑mailed to the intended recipient’s e-mail address. The notice will be deemed to have been received by the intended recipient upon receipt by the sender of a successful facsimile transmission answerback or in the case of e-mail, on the day of transmission provided that the sender is able to give evidence of transmission and the intended recipient does not give evidence of non-receipt.
41. The Supplier may add to or vary these Terms from time to time on 14 days’ written notice to the Landlord.
42. The privacy of the Landlord’s personal information and credit related personal information (“credit information”) is important to the Supplier. The Supplier is committed to respecting the Landlord’s right to privacy and protecting the personal information provided by the Landlord to the Supplier. The Supplier is bound by the Australian Privacy Principles in the Privacy Act 1988 (Cth).
44.1 the purposes for which the Landlord’s personal and credit information is collected;
44.2 the consequences if the Landlord’s personal and credit information is not provided to the Supplier;
44.3 the third parties to which the Supplier discloses the Landlord’s personal and credit information;
44.4 how the Landlord may seek access or correction of its personal and credit information;
44.5 whether the Landlord’s personal or credit information is likely to be disclosed to overseas entities and in which countries; and
44.6 how the Landlord can complain about a breach of the Supplier’s obligations in respect of the Landlord’s personal and credit information and how such a complaint will be dealt with.
Guarantee (if Landlord is not an individual)
45. In consideration of the Supplier supplying the Goods to the Landlord, the Landlord will procure that a Guarantee is provided to the Supplier and clauses 49 to 61 will apply.
46. No party is liable for any failure to perform its obligations under these Terms if the failure or delay is due to anything beyond that party’s reasonable control. If that failure exceeds 60 days, the other party may terminate these Terms with immediate effect by giving notice to the other party. This clause does not apply to any obligation to pay the Price due by the Landlord in accordance with these Terms.
47. The parties may only assign their interests under these Terms with the prior written consent of the other party, which must not be unreasonably withheld.
48. Every provision of these Terms will be deemed severable as far as possible from the other provisions of these Terms. If any provision is found to be void, illegal or unenforceable for any reason, it will be deemed to be severed and omitted from these Terms. These Terms with the offending provision severed and omitted and with any consequential amendment necessary will otherwise remain in full force.