TERMS AND CONDITIONS OF TRADE
By accepting a Quote from Rainbow Shade Products Pty Limited (ABN 34 071 735 138) of 3/15 Kohl Street, Upper Coomera QLD 4209 (“Rainbow Shade”) the individual consumer to whom the Quote is addressed (domestic) or the Company that provides the Order (commercial) and includes the Customer’s agents, successors and permitted assigns (each a “Customer”) agrees to be bound by these T&Cs of Trade (“T&Cs”).
1. DEFINITIONS AND INTERPRETATIONS
In these T&Cs:
Additional Charge means:
(a) fees or charges for additional work performed at the Customer’s request or reasonably required as a result of the Customer’s conduct, calculated in accordance with Rainbow Shade’s then current prices or hourly rates; or
(b) expenses incurred by Rainbow Shade, at the Customer’s request or reasonably required as a result of the Customer’s conduct.
Business Day means a day that is not a Saturday, Sunday or public holiday in Queensland.
Credit Account means the allowance of credit agreed to between Rainbow Shade and the Customer limited by the agreed Credit Limit and the Period of Credit.
Credit Limit means the maximum credit amount allowed by Rainbow Shade to be held by the Customer as agreed in writing between Rainbow Shade and the Customer.
Delivery means when the goods are transferred to the Customer either by physical delivery or to the Customer’s agent or assignee.
Goods means any goods supplied by Rainbow Shade to the Customer.
GST means Goods and Services Tax as defined in A New Tax System (Goods and Services) Act 1999 (Cth).
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs.
Loss includes, but is not limited to, costs (including, but not limited to, party to party legal costs and Rainbow Shade’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Order means a purchase order for Goods or Services placed by a Customer in response to a Quote.
Period of Credit means thirty (30) days EOM for Customers who have a Credit Account with Rainbow Shade.
PPS Law means:
(a) the Personal Property Security Act 2009 (Cth) (“PPS Act”) and any regulation made at any time under the PPS Act (each as amended from time to time); and
(b) any amendment made at any time to any other legislation as a consequence of a PPS Law.
Price means the amount in Australian dollars set out in a Quote.
Quote means a written description of the Goods or Services to be provided, an estimate of Rainbow Shade’s charges for the performance of the required work and an estimate of the time frame for the performance of the work.
Services means the services (if any) to be provided by Rainbow Shade to the Customer in accordance with a Quote and these T&Cs.
In these T&Cs, unless the context otherwise requires:
(a) a reference to writing includes email and other communication established through Rainbow Shade’s website; and
(b) the singular includes the plural and vice versa;
(c) a reference to a clause or paragraph is a reference to a clause or paragraph of these T&Cs;
(d) a reference to a party of these T&Cs or any other document or arrangement includes that party’s agent, executors, administrators, successors and permitted assigns;
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) headings are for ease of reference only and do not affect the meaning or interpretation of these T&Cs; and
(g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
(i) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
(ii) in all other cases, must be done on the next Business Day.
2. AGREEMENT TO BUY AND SELL
In consideration of payment of the price specified in the Quote, Rainbow Shade agrees to sell and the Customer agrees to buy the Goods and Services on the terms and conditions set out in these T&Cs and the Quote.
3. ENGAGEMENT OF RAINBOW SHADE
(a) These T&Cs apply to all transactions between the Customer and Rainbow Shade relating to the provision of Goods and Services. The terms set out in the Quote prevail to the extent of any inconsistency with these T&Cs.
(b) Rainbow Shade may amend any details in a Quote by notice in writing to the Customer and such amended details supersede any detail in a prior quote.
(a) Rainbow Shade may provide the Customer with a Quote. Any Quote issued by Rainbow Shade is valid for 30 days from the date of the Quote.
(b) Unless specifically included in the Quote, the Quote does not include Delivery and/or installation of the Goods.
(c) Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary material and instructions to Rainbow Shade.
(d) After providing a Quote to the Customer, Rainbow Shade is not obliged to commence work until the Quote has been accepted in writing (including email) by the Customer, with deposit paid or Order received.
(e) Rainbow Shade reserves the right to amend any Quote before an Order has been made to take into account any rise or fall in the cost of completing the Order. Rainbow Shade will notify the Customer of any amendment as soon as practicable, at which point the amended quote will be the Quote for the purposes of these T&Cs.
5. ACCEPTANCE OF QUOTE
The Customer may accept a Quote either in writing (including email) or verbally. Acceptance shall be deemed to be an agreement by the Customer to be legally bound by this Agreement.
6. ORDERS (COMMERCIAL CUSTOMERS)
(a) Commercial Customers applying for a credit account with Rainbow Shade must supply an Order for the provision of Goods or Services in writing on the Customer’s standard purchase order form (unless otherwise agreed).
(b) An Order will not be placed by the Customer unless the Order clearly identifies the Goods or Services ordered and Rainbow Shade’s Quote reference. Any costs incurred by Rainbow Shade in reliance on incorrect or inadequate information may result in Additional Charges or reissue of a new Quote.
(c) Orders must be signed by an authorised representative of the Customer and must specify the required date of Delivery.
(d) Placement of an Order by the Customer signifies acceptable by the Customer of these T&Cs and the Quote reference specified on the Order.
(e) Rainbow Shade may in its absolute discretion refuse to provide Goods or Services where:
(i) Goods are unavailable for any reason whatsoever;
(ii) Credit Limits cannot be agreed upon or have been exceeded; or
(iii) payment for Goods or Services previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of Rainbow Shade, associated with the Customer under the same or another supply contract, has not been received by Rainbow Shade.
(f) An Order cannot be cancelled without the prior written consent of Rainbow Shade. Where an Order is cancelled, the Customer indemnifies Rainbow Shade against any Losses incurred by Rainbow Shade as a result of the cancellation as a result of the scheduling of the Order which is subsequently cancelled.
(g) Following placement of an Order, any delays caused by the Customer exceeding two (2) months which subsequently delays Rainbow Shade’s purchase of materials for the Goods may incur an Additional Charge.
(a) The Customer may request that its Order be varied by providing a request in writing to Rainbow Shade. A request for a variation must be agreed to in writing by Rainbow Shade in order to have effect.
(b) If the Customer wishes to vary its requirements after a Quote has been prepared or after the placement of an Order, Rainbow Shade reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by Rainbow Shade in respect of the required variation supersedes the original Quote. If the revised Quote only specifies additional work the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods and/or Services.
(c) Rainbow Shade has an automatic extension of time for the provision of Goods or Services equal to the delay caused by the variation.
8. DELIVERY & STORAGE
(a) Delivery times are estimates only and Rainbow Shade is not liable for any late delivery.
(b) Any delays caused by the Customer that result in Rainbow Shade being unable to dispatch the Goods within 30 days of completion of manufacture, including but not limited to late payment of final invoice or site delays, may incur an Additional Charge for storage of the Goods.
(a) Non-commercial Customers and commercial Customers who do not have an approved Credit Account with Rainbow Shade must pay the Price in full to confirm the Customer’s order. The Customer must pay for the Product in full upon manufacture completion, prior to Delivery or dispatch of the Product from Rainbow Shade’s premises.
(b) For commercial Customers who have a Credit Account with Rainbow Shade, the following payment terms apply:
(i) Rainbow Shade may issue an invoice to the Customer upon completion of the provision of the Goods or Services, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing Rainbow Shade’s charge for the work performed in completing the Order and for any Additional Charges.
(ii) The Customer must pay an invoice issued by Rainbow Shade to Rainbow Shade within the Period of Credit after receipt of such invoice from Rainbow Shade.
(iii) If any invoice is due but unpaid, Rainbow Shade may withhold the provision of any further Goods or Services until overdue amounts are paid in full.
(iv) Rainbow Shade may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to Rainbow Shade.
(v) The Customer shall pay all costs and expenses incurred by Rainbow Shade, its advisers, mercantile agents and any other person, in respect of any action instituted or considered against Customer, whether for debt, possession of Goods or otherwise.
(vi) All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of Rainbow Shade, are to be paid by the Customer as a debt due and payable under these T&Cs.
(vii) The Customer and Rainbow Shade agree to comply with their respective obligations in relation to GST in accordance with prevailing Australian law.
(viii) Approved credit account holders with account inactivity greater than 12 months will need to re-apply for a new credit account with Rainbow Shade.
(c) The Customer guarantees to Rainbow Shade the due and punctual payment of all monies on all accounts which are now or in the future payable by the Customer to Rainbow Shade. Without in any way limiting Rainbow Shade’s right to require payment in full in accordance with these T&Cs, Rainbow Shade may at its sole discretion charge interest on overdue accounts each day that the account remains overdue at the rate of 2.5% above the National Australia Bank variable “National Australia Bank Reference Rate” as applicable from time to time. Each Party acknowledges that any interest payment amount is a genuine and realistic pre-estimate of the loss and damage Rainbow Shade will suffer as a result of a delay in payment.
(d) The Customer shall indemnify and keep indemnified Rainbow Shade against all loss, damage, expense, costs, including legal costs and claims which Rainbow Shade may incur due to any default by the Customer in connection with the account of the Customer. The Customer’s liability is not affected by any act or omission on the part of Rainbow Shade including, without limitation:
(i) Rainbow Shade varying the contract between the Customer and Rainbow Shade;
(ii) the death of any Customer; or
(iii) any liquidation, voluntary administration or other insolvency event occurring in relation to the Customer.
10. ADDITIONAL CHARGES
Rainbow Shade may require the Customer to pay an Additional Charge in respect of costs incurred by Rainbow Shade as a result of installation conditions or delays caused by the Customer or reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by Rainbow Shade in order for it to provide the Goods or Services within the specified timeframe (if any).
(a) Rainbow Shade shall be responsible for installation of the Goods only if installation is specified in writing on the Quote and invoice (non-commercial customers) or Order (commercial customers). If installation is not specified on the Quote and invoice or Order, the Customer is responsible for its own installation at the Customer’s cost.
(b) Rainbow Shade is under no obligation to provide additional drawings, a site visit, or provide further assistance in relation to installation free of charge.
12. ACCEPTANCE OF GOODS
(a) If the Customer fails to advise Rainbow Shade in writing of any fault in Goods or failure of Goods to accord with the Customer’s Order within 24 hours of Delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer’s order.
(b) Any claims or disputes by the Customer in relation to an invoice must be notified in writing to Rainbow Shade within 7 days from the date of the invoice.
(c) No amount owing, whether present or future, actual, contingent or prospective and on any account whatsoever by Customer to Rainbow Shade may be offset against any liability whether present, future, actual, contingent or prospective of Customer to Rainbow Shade hereunder or on any other account whatsoever.
(d) All Goods supplied to a Customer that are not defective in design or manufacture, as determined by Rainbow Shade acting reasonably, shall incur a restocking fee of 10% of the total tax invoice Price as an Additional Charge, and the Customer agrees to pay such Additional Charge on demand by Rainbow Shade before such Goods will be accepted for return and the Customer is refunded the balance of the Price paid.
13. TITLE AND RISK
(a) Risk in the Goods passes to the Customer immediately upon Delivery.
(b) Property in Goods supplied to the Customer pursuant to these T&Cs does not pass to the Customer until all money (including money owing in respect of other transactions between Rainbow Shade and the Customer) due and payable to Rainbow Shade by the Customer has been paid in full.
(c) Where Goods are supplied by Rainbow Shade to the Customer without payment in full of all moneys payable in respect of Goods and any Services provided by Rainbow Shade in respect of those Goods, the Customer:
(i) is a bailee of the Goods until title to those Goods passes to the Customer (upon full payment);
(ii) irrevocably appoints Rainbow Shade its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of Rainbow Shade with respect to the Goods;
(iii) must be able upon demand by Rainbow Shade, to separate and identify as belonging to Rainbow Shade, Goods supplied by Rainbow Shade from other goods held by the Customer;
(iv) must not allow any person to have or acquire any security interest in the Goods;
(v) agrees that Rainbow Shade may repossess the Goods if payment is not made within the Period of Credit of the supply of the Goods; and
(vi) the Customer grants an irrevocable license to Rainbow Shade or its agents (including any debt collectors) to enter the Customer’s premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies Rainbow Shade in respect of any damage to property or personal injury which occurs as a result of Rainbow Shade entering the Customer’s premises.
(d) Rainbow Shade may sell or otherwise dispose of the Goods in its absolute discretion and on its own account without limiting any other rights Rainbow Shade has.
(e) The Customer indemnifies Rainbow Shade against any loss damage liability or expense incurred or sustained as a result of the exercise of Rainbow Shades rights under this clause.
(f) This clause is for the benefit of Rainbow Shade and Rainbow Shade may waive it by giving written notice to the Customer at any time.
(g) Notwithstanding any other provision in this agreement, Rainbow Shade may take any action it deems necessary including legal proceedings to recover as a liquidated debt any amount payable by the Customer under a Quote or these T&Cs.
(h) Where Goods are supplied by Rainbow Shade to the Customer without payment in full, the Customer grants to Rainbow Shade a purchase money security interest (as defined in the PPS Law) in the Goods and any proceeds of sale of the Goods (“PMSI”) to secure the payment by the Customer to Rainbow Shade of all monies owing by the Customer to Rainbow Shade, on any account.
(i) All costs of registering a financing statement under the PPS Law (including legal costs) and actually incurred by Rainbow Shade will be paid by the Customer to Rainbow Shade as an Additional Charge.
(k) The Customer must not do anything or permit anything to be done that may result in the PMSI granted to Rainbow Shade ranking in priority behind any other security interest.
(l) The Customer must take all further steps and sign all further documents as may be required by Rainbow Shade to further or better secure Rainbow Shades rights under this agreement and the security under the PPS Law in respect of the Goods or to maintain the effectiveness of or priority of the security interest under the PPSA.
(m) The Customer agrees that nothing in sections 125, 132(3)(d), 132(4), 135, 142 and 143 of the PPS Law shall apply to the Goods supplied under a Quote or the security interest arising under the Quote or these T&Cs.
14. INTELLECTUAL PROPERTY RIGHTS
(a) The Customer indemnifies and agrees to keep indemnified Rainbow Shade against all Losses incurred by Rainbow Shade in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Customer to Rainbow Shade.
(b) Unless specifically agreed in writing between Rainbow Shade and the Customer, all Intellectual Property rights in any works created by Rainbow Shade on behalf of the Customer vest in and remain the property of Rainbow Shade.
(c) Subject to payment of all invoices due in respect of the Goods or Services, Rainbow Shade grants to the Customer a perpetual, non-exclusive license to use the works created or produced by Rainbow Shade in connection with the provision of Goods or Services for the purposes contemplated by the Order.
(d) All photos provided by the Customer to Rainbow Shade become the property of Rainbow Shade and may be used by Rainbow Shade for marketing and promotional purposes.
The Customer shall not assign, or purport to assign, any of its obligations or rights under these T&Cs without the prior written consent of Rainbow Shade.
16. DEFAULT BY CUSTOMER
(a) Each of the following occurrences constitutes an event of default:
(i) the Customer breaches or is alleged to have breached these T&Cs for any reason (including, but not limited to, defaulting on any payment due under these T&Cs) and fails to remedy that breach within 7 days of being giving notice by Rainbow Shade to do so;
(ii) the Customer, being a natural person, commits an act of bankruptcy;
(iii) the Customer, being a corporation, is subject to:
(A) a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
(B) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer’s property and undertaking;
(C) the entering of a scheme of arrangement (other than for the purpose of restructuring); and
(D) any assignment for the benefit of creditors;
(iv) the Customer purports to assign its rights under these T&Cs without Rainbow Shade’s prior written consent;
(v) the Customer ceases or threatens to cease conduct of its business in the normal manner.
(b) Where an event of default occurs, except where payment in full has been received by Rainbow Shade, Rainbow Shade may:
(i) terminate these T&Cs;
(ii) terminate any or all Orders and credit arrangements (if any) with the Customer;
(iii) refuse to Deliver Goods or provide further Services;
(iv) pursuant to clause 13(c), repossess and re-sell any Goods Delivered to the Customer, the payment for which has not been received; or
(v) retain (where applicable) all money paid on account of Goods or Services or otherwise.
(c) In addition to any action permitted to be taken by Rainbow Shade under paragraph (b), on the occurrence of an event of default all invoices will become immediately due and payable.
17. EXCLUSIONS AND LIMITATION OF LIABILITY
(a) The Customer expressly agrees that use of the Goods and Services is at the Customer’s risk. To the full extent allowed by law and subject to clause 17(f), Rainbow Shade’s liability for breach of any term implied into these T&Cs by any law is excluded.
(b) All information, specifications and samples provided by Rainbow Shade in relation to the Goods or Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Goods or Services will not entitle the Customer to reject the Goods upon Delivery, or to make any claim in respect of them.
(c) Any advice, recommendation, information, assistance or service given by Rainbow Shade in relation to Goods and/or Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. Rainbow Shade does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
(e) To the fullest extent permissible at law, Rainbow Shade is not liable for any direct, indirect, punitive, incidental, specific, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on T&Cs, negligence, strict liability or otherwise, even if Rainbow Shade has been advised of the possibility of damages.
(f) Nothing in these T&Cs should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of the Australian Consumer Law [Schedule 2 of the Competition and Consumer Act 2010 (Cth)] (“ACL”) and any equivalent State or Territory legislation, or your rights to make a claim in respect of any consumer guarantees or other provision of the ACL. Notwithstanding the foregoing, if the Customer is a “consumer” under the ACL , if Rainbow Shade’s Goods and Services are goods or services which, for the purposes of the ACL, are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability to the Customer is limited at Rainbow Shade’s option to:
(i) the resupply of the Goods;
(ii) the supplying of the Services again; or
(iii) the payment of the cost of having the Goods and Services supplied again.
If the Customer is not a “consumer” under the ACL then, to the extent permitted by law, Rainbow Shade excludes all liability for any loss incurred by the non-consumer Customer as a result of the supply of the Goods and Services under a Quote and these T&Cs.
18. CUSTOMER INDEMNITY
The Customer indemnifies and keeps indemnified Rainbow Shade, its directors, officers, employees, and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against Rainbow Shade or, for which Rainbow Shade is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these T&Cs including, but not limited to any legal costs incurred by Rainbow Shade in relation to meeting any claim or demand or any party/party legal costs for which Rainbow Shade is liable in connection with any such claim or demand. This provision remains in force after the termination of these T&Cs.
19. FORCE MAJEURE
(a) If circumstances beyond Rainbow Shade’s control prevent or hinder its provision of the Goods or Services, Rainbow Shade is free from any obligation to provide the Goods or Services while those circumstances continue. Rainbow Shade may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
(b) Circumstances beyond Rainbow Shade’s control include, without limitation, unavailability of materials or components, supply chain issues, strikes, lockouts, riots, natural disasters, epidemics, pandemics, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
(a) These T&Cs are governed by the laws of Queensland and each party irrevocably submits to the exclusive jurisdiction of the courts there.
(b) These T&Cs and any Quotes and written variations agreed to in writing by Rainbow Shade represent the whole agreement between the parties relating to the subject matter of these terms.
(c) These T&Cs supersede all oral and written negotiations and communications by and on behalf of either of the parties.
(d) In entering into these T&Cs, the Customer has not relied on any warranty, representation, or statement, whether oral or written, made by Rainbow Shade or any of its employees or agents relating to or in connection with the subject matter of these T&Cs.
(e) If any provision of these T&Cs at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
(f) A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
(g) A notice or other communication required or permitted to be given by one party to another must be in writing to the email address shown on a Quote (or as varied pursuant to these paragraph) and delivered by email to the email address specified in the relevant Quote, with acknowledgement of delivery.
(h) A notice or other communication is taken to have been given (unless otherwise proved) by email on the date it is sent and otherwise on the next Business Day at the place of receipt.
(i) A party may only change its postal or email address for service by giving notice of that change in writing to the other party.