Terms and Conditions for Ceiling Insulation
TERMS AND CONDITIONS OF SALE TO CONSUMERS PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. YOUR ATTENTION IS DRAWN IN PARTICULAR TO CLAUSES 4.1, 4.2 AND 10.1 Interpretation
1.1 In these Conditions:
1.1.1“Company” means Mark Group Australia Pty Limited ABN 38 138 055 526 with the registered office address of Unit 3, 5 Talavera Road, North Ryde, NSW 2113.
1.1.2 "Conditions" means the standard terms and conditions of sale set out in this document and (unless the context otherwise required) includes any special terms and conditions agreed in writing between the Customer and the Company.
1.1.3“Consumer” has the same meaning as in the Fair Trading Act 1987 (NSW).
1.1.4 "Contract" means the contract between the Company and the Customer for the purchase and sale of the Goods and/or the supply of the Services, incorporating these Conditions and the Quotation.
1.1.5 “Customer” means the person who purchases Goods and/or Services from the Company as detailed overleaf.
1.1.6"Direct Commerce Contract Provisions" means the Direct Commerce Contract provisions within the Fair Trading Act 1987 (NSW).
1.1.7 "Goods" means the goods (including any instalment of the goods or any parts for them) which the Company is to supply in accordance with the Contract, and any replacements supplied under condition 10.12
1.1.8 “Group” means in respect of any company, that company and any other company which is a related body corporate as defined in the Corporations Act 2001(Cth).
1.1.9 “Privacy Policy” means the Company's privacy policy available by contacting the Company.
1.1.10“Property” means the address stipulated in the Contract for delivery of the Goods to the Customer and/or supply of the Services to the Customer as specified overleaf.
1.1. 11 “Quotation” means the quotation issued by the Company to the Customer in connection with the supply of the Goods and/or Services.
1.1.12 "Services" means those services to be carried out by the Company in accordance with the Contract.
1.1.13 “Specification” means the quantity, quality and/or description of Goods agreed to be supplied and/or Services agreed to be performed by the Company as set out in the Quotation.
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 In these Conditions headings will not affect the construction of these Conditions.
↑ Back to Top2 The Contract
2.1 The Company or an agent on behalf of the Company has carried out a survey of the Property and shall sell the Goods and Services and the Customer shall purchase the Goods and Services in accordance with the Contract. These Conditions shall govern the Contract between the Company and the Customer to the exclusion of any other terms and conditions.
2.2 No variation to these Conditions and/or the Contract shall be binding unless agreed in writing by an authorised representative of the Company.
2.3 A Quotation is given on the basis that no Contract will come into existence until the Company accepts the Quotation, as specified at clause 3.1 below. Any Quotation is valid for a period of 28 days only from its date, provided that the Company has not previously withdrawn it.
2.4 Where the Customer is a Consumer and the Direct Commerce Contract Provisions apply to the Contract, he/she has the right to cancel the Contract in accordance with the provisions of the Direct Commerce Contract Provisions within the cancellation period set out in the Direct Commerce Contract Provisions (and during the cancellation period no amounts (if any) invoiced by the Company are payable).
2.5 If the Customer cancels the Contract other than in accordance with the provisions of the Direct Commerce Contract Provisions then unless the Company is in breach of contract, the Customer must pay any reasonable losses and costs the Company suffers because of the cancellation, including loss of profit. Any cancellation by the customer must be in writing or other durable format. If the Customer does not
2.6 If, after expiry of the cooling off period under the Direct Commerce Contract Provisions, the Customer does not keep a pre-booked appointment for an installation team to commence work, the Company may charge the Customer a fee of $200. This fee is based upon the Company's estimate of costs incurred for an installation team travelling to a Customer site and being unable to commence work. No fee is payable if the Customer has re-scheduled the appointment by 4pm on the prior working day.
↑ Back to Top3 Quotations and Specifications
3.1 A Quotation shall be deemed to be accepted by the Company when the Customer signs the Quotation.
3.2 The Customer shall provide the Company with any necessary information relating to the Contract.
3.3 The Company reserves the right to make any changes to the Specification which are required to conform with any legal requirements or to safely install the Goods and carry out the Services.
3.4 Subject to clause 3.6 any amendments the Customer may require to the Quotation or the Specification will result in the Company providing a revised Quotation which will be deemed to be accepted by the Company in accordance with clause 3.1.
3.5 Save as provided in the Direct Commerce Contract Provisions no Quotation which has been accepted by the Company may be cancelled or varied by the Customer except with the agreement in writing of the Company.
3.6 The Company may ask the Customer to pay a deposit at time of acceptance of the Quotation in accordance with clause 3.1.
↑ Back to Top4 Price of the Goods and/or Services
4.1 Subject to clause 4.2 below the price of the Goods and/or the Services shall be the price set out in the Quotation or where no price has been quoted the price charged shall be calculated in accordance with the Company's current price list for the Goods and Services (including, where applicable, by reference to hourly/daily rates for Services) in force at the time the Contract becomes binding.
4.2 Where there is a withdrawal or variation of any funding (including without limitation any grants or subsidises) provided by a third party to the Company or the Customer towards the cost of provision of any Goods and/or Services the Company may at its discretion:
4.2.1 vary any Quotation or the price of the Goods and/or the Services provided that it notifies the Customer in writing in advance; or
4.2.2 cancel or terminate the Contract without any further liability on its part on fourteen days prior written notice to the Customer. In such circumstances the Customer shall pay for the Goods and Services that have been provided and/or supplied up to that date.
4.3 If the Company is unable to complete the Contract due to the fault of the Customer, the Customer shall pay for the Goods and Services that have been provided and/or supplied up to the date that the Company ceases to carry out work.
4.4 The Company reserves the right to cease supplying the Goods and/or Services if, in its reasonable opinion, to carry on would endanger or damage life. In such circumstance the Customer shall pay for the Goods and Services that have been provided and/or supplied up to the date that the Company ceases to carry out work.
4.5 All prices quoted and/or invoiced by the Company are inclusive of Goods and Services Tax.
↑ Back to Top5 Terms of Payment
5.1 The Company shall invoice the Customer for the price of the Goods and/or the Services at the time of delivery of the Goods and/or performance of the Services. Where the Company exercises any rights to cancel or terminate the Contract early or to suspend or cease the provision of Goods and/or Services in accordance with these Conditions, then it shall be entitled to invoice the Customer for the price of any Goods delivered and/or Services performed at any time on or after such cancellation, termination, suspension or cessation.
5.2 Unless otherwise agreed in writing by the Company, the Customer shall pay the Company's invoice upon satisfactory completion of the Services.
5.3 The time of payment of any sum payable by the Customer shall be of the essence of the Contract. This means that failure to pay on time may entitle the Company to terminate the Contract and claim damages. Receipts for payment will be issued only upon request.
5.4 If the Customer fails to make any payment (which is not the subject of a genuine dispute of which the Customer has notified the Company in writing) on the due date then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
5.4.1 cancel the Contract or suspend any further deliveries to the Customer and/or the performance of any Services under the Contract or any other contract between the Customer and the Company.
5.4.2 appropriate any payment made by the Customer to such of the Goods and/or Services (or the Goods and/or Services supplied under any other contract between the Customer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Customer).
5.4.3 charge the Customer interest both before and after any judgment on the amount unpaid at the rate of 2% per annum above Westpac Banking Corporation base rate from time to until payment in full is made.
↑ Back to Top6 Delivery and Access
6.1 Unless otherwise agreed by the parties, delivery of the Goods and performance of the Services shall be made at the Property upon such date or dates agreed between the Company and Customer. The Customer will do all it reasonably can to meet such times and dates as agreed between the parties.
6.2 Unless otherwise agreed by the Company in writing, any times and dates stated for performance and/or delivery are estimates only and therefore neither party may terminate the Contract on the grounds that the times or dates stated for performance and/or delivery were not complied with . The Company will do all it reasonably can to meet times and dates of performance and/or delivery.
6.3 If the Customer without reasonable excuse fails to allow delivery of the Goods then the Company may (without prejudice to its other rights and remedies):
6.3.1 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage and rearranging delivery; or
6.3.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
6.4 The Customer is responsible for:
6.4.1 providing a safe means of access from the public highway to the
Property;
6.4.2 preparing the location within the Property to enable the Company to carry out the Services;
6.4.3 clearing all belongings of the Customer to enable the Company to carry out the Services and install the Goods;
6.4.4 allowing the Company, its employees, agents and representatives reasonable access to the location within the Property where the Services are to be carried out;
6.5 The Company will be entitled to refuse to deliver the Goods and/or carry out the Services without liability to the Customer if the Customer fails to comply with its obligations under clause 6.4 above.
↑ Back to Top7 Insolvency of Customer
7.1 If the Customer:
7.1.1 has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors; or
7.1.2 any proceedings are commenced relating to the insolvency or possible insolvency of the Customer, or
7.1.3 suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it;
7.1.4 fails to observe/perform any of its obligations under the Contract or any other contract between the Company and the Customer;
7.1.5 is unable to pay its debts when they become due and payable; or
7.1.6 encumbers or in any way charges any of the Goods, then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
7.2 The Company shall be entitled to exercise its rights under clause
7.1 if it reasonably believes that any of the events set out in sub-clauses
7.1.1 – 7.1.6 is about to occur in relation to the Customer and notifies the Customer accordingly.
↑ Back to Top8 Progress and Inspection
8.1 The Customer may inspect the performance of the Services at any time and must so inspect upon completion of the work.
9 Property and Risk in the Goods
9.1 The property in the Goods passes to the Customer when the Goods are delivered to the Property and from this point onwards, the Customer is responsible for the Goods and should make sure that they are adequately insured against any damage or loss that may occur to the Goods..
9.2 The Customer's rights to possession of the Goods shall terminate immediately if any of the circumstances set out in clause 7.1 shall apply.
9.3 The Company reserves the right to take legal proceedings to recover the Goods or their value.
9.4 On termination of the Contract, howsoever caused, the Company's (but not the Customer's) rights under this clause 9 will remain in effect.
↑ Back to Top10 Warranties and Limitation of Liability
10.1 Certain laws imply terms, conditions or warranties into contracts for the supply of goods or services that cannot be excluded (for example, that services must be provided with due care and skill and goods must be reasonably fit for their purpose and be of a certain quality). In the event that such a term, condition or warranty is implied into these Conditions and the Company breaches that implied term, condition or warranty then, subject to clause 10.2, the Company accepts liability for that breach.
10.2 Where the Company is permitted to limit its liability, the Company's liability for breach of a term, condition or warranty implied into these Conditions by law will be limited (at the Company's option) to:
a) in the case of goods, repairing the goods, replacing the goods or supplying equivalent goods, or paying you the cost of that repair, replacement or equivalent supply; and
b) in the case of services, re-supplying the services to the Customer or paying the Customer the cost of having the services re-supplied.
The limitation and exclusion in this clause 10.2 does not apply:
i) to goods or services which are of a kind which are ordinarily acquired for personal, domestic or household use; or
ii) if it would be unconscionable or not fair and reasonable for the Company to limit its liability as stated in this clause 10.2.
10.3 The Company excludes all terms, conditions and warranties that, in the absence of this clause, would otherwise be implied into these Conditions, except to the extent that such exclusion is prohibited by law.
10.4 The Company is only liable to the Customer in the circumstances set out in clauses 10.1, 10.2 and 10.6. Otherwise, the Company is not liable to the Customer in contract, tort (including negligence) or otherwise, for any loss or damage incurred by the Customer. For example, the Company is not liable for any loss of profits or anticipated savings, economic loss, loss of data or any indirect or consequential damages that may be suffered by the Customer.
10.5 In addition, the Company: has no liability:
a) in respect of any defect in or damage to the Goods arising from fair wear and tear, neglect, fire or smoke damage, weather, accidental damage, wilful damage or negligence or any other default of the Customer.
b) for any damage that the Company, its employees or agents cause to the Customer's belongings where the Customer fails to move the same pursuant to clause 6.4.3.
c) for losses that were actually unforeseeable at the time when the Contract was formed, for losses not caused by the Company's breach of the Contract, or for any business losses.
d) for any failure or delay in providing the Goods or Services where this is due to the default of the Customer, including without limitation, a breach by the Customer of clause 6.
e) for any damage to any of the pipes at the Property which occurs during the performance of the Services, where such damage is attributable to the age or condition of the said pipes.
f) for any losses resulting from the fact that any wiring at the Property does not comply with any regulations in force at the date of performance of the Services relating to the wiring of domestic premises.
g) for a breach of any of the warranties in clause 10.7 if the defect arises because the Customer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or the Customer alters or repairs such Goods without the written consent of the Company.
The limitations stated in this clause 10.5, or any other provision within the Conditions do not apply to the extent that they are contrary to law.
10.6 Nothing in these Conditions limits or excludes, or is intended to limit or exclude the Company's liability for death or personal injury caused by its negligence or for fraudulent misrepresentation.
10.7 The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the its obligations in relation to the Goods or Services, if the delay or failure was due to any cause beyond the Company's reasonable control. Where such delay occurs for reasons beyond the reasonable control of the Company, the Company will contact the Customer and attempt to agree an alternate date. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company's reasonable control:
10.7.1 act of God, explosion, flood, tempest, fire or accident;
10.7.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
10.7.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
10.7.4 import or export regulations or embargoes;
10.7.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);
10.7.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
10.7.7 power failure or breakdown in machinery;
10.7.8 withdrawal or variation of any funding (including without limitation any grants or subsidies) provided by a third party to the Company or the Customer towards the cost of provision of any Goods and/or Services.
10.8 Subject to the foregoing provisions of this clause 10 the Company's total liability in contract, tort, (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to AU$100,000.
↑ Back to Top11 Disclaimer
11.1 Before commencement of the Services, the Company shall inform (if not already informed at the point of survey) the Customer of any works to the Property which could result in damage to the Property or damage to items in the Property, which the Company will not be liable for, (including but not limited to the items referred to in Conditions 10.5(e) and 10.5(f)).
11.2 Once the Customer has been informed, and has signed a form of consent providing consent for the Company to proceed with providing the Goods and/or Services, the Company shall not be liable for replacing and/or making good damage to any items and areas in the Property through the provision of the Goods and/or Services in connection with any of the items referred to in Condition 11.1.
11.3 Should the Property have an existing defect that is not apparent at survey stage, including but not limited to damage caused by hidden or corroded pipes or wiring or damage caused by appliance fault (either in operation or design), that defect is not covered under any warranty/guarantee provided by the Company.
11.4 Where the Company agrees to repair or otherwise make good any damage to the Property resulting from its performance of the Services, the Company reserves the right to determine whether adequate cleaning of the Property is sufficient to repair any damage so covered.
↑ Back to Top12 Guarantees
12.1 A guarantee (if any) issued by the Company shall be for the benefit of the Customer and all subsequent owners of the Property and shall be valid for the period as stated in the guarantee. No guarantee is applicable unless expressly and separately provided in writing by the Company to the Customer.
13 Privacy
13.1 Information that the Company may acquire about the Customer whether in accordance with the Contract or otherwise may be used by the Company, in accordance with its Privacy Policy. You may obtain a copy of our Privacy Policy by contacting us. Included within the Company's Privacy Policy is consent for the Company its employees or agents to:
13.1.1 identify the Customer during any communication between the Company and the Customer;
13.1.2 assist in the administration of accounts, services or products provided by the Company or any associated company to the Customer throughout this Agreement and following termination;
13.1.3 assist in detecting fraud or loss; and
13.1.4 write to or telephone the Customer with information about other services or products offered by the Company or any associated company. The Company shall not contact the Customer in this way unless the Customer has consented.
13.2 The Company may, under these Conditions, carry out a credit check against the Customer with any one or more licensed credit reference agencies and the Company will retain a copy of any search. Payment details of the Customer's account with the Company will be recorded with a credit reference agency and may be shared with other organisations to assist the Company in making credit decisions about the Customer and for debt collecting and fraud prevention. This clause also applies to Customers who are in default.
↑ Back to Top14 General
14.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in a durable format addressed in the case of a notice to the Company to such address as the Company may notify to the Customer and in the case of a notice to the Customer to such address as the Customer may have notified to the Company.
14.2 No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected.
14.4 The Customer shall not be entitled to assign or transfer the Contract or any part of it without the prior written consent of the Company. The Company may assign or transfer the Contract or any part of it to any person, firm or company or company in its Group, and may sub-contract all or any of its obligations hereunder.
15 Jurisdiction
15.1 The Contract and these Conditions shall be governed by the laws of New South Wales and any disputes shall be referred to the Courts of that State.
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