Terms of use
1. Terms and Conditions
1.1 Currency: These Terms and Conditions apply to the supply of all Services by us to you from the date that you accept these Terms and Conditions.
1.2 Acceptance: You accept these Terms and Conditions when:
(a) you submit an Order;
(b) you accept the provision of any Services pursuant to an Order; or
(c) you make Payment, or partial Payment, for any Services supplied by us.
2.1 Providing a Quote: We may provide to you a Quote relating to the potential supply of Services, which may include the price and quantity of the Services proposed to be supplied by us and other relevant details as necessary. A Quote is valid for 30days only.
2.2 Placing an Order: If our Quote is acceptable to you, you may place an Order for the provision of Services. All Orders are subject to our review and acceptance a tour absolute discretion.
2.3 Additional conditions: Unless otherwise agreed by us in writing, we will not be bound by any conditions added by you in an Order (express or implied).
3.1 Price: In consideration of us providing the Services, you must pay us the price specified in the Order, which may be adjusted in accordance with the provisions of these Terms and Conditions.
3.2 Time for Payment: You must pay on completion of our works or as agreed as per order at the time.
3.3 Variation of price: You agree that the price specified in the Order may be adjusted by us to reflect any changes to the cost to us in performing the Services arising from:
(a) statutory charges, taxes, rates, levies or imposts which we are required to pay in relation to performing the Services; or
(b) currency exchange rates.
3.4 Home Building Contracts: The following provisions are included in these Terms and Conditions only if the Home Building Contracts Act 1991 (WA) does not apply:
(a) You agree that the price specified in the Order may be adjusted by us for the rise and fall in the costs of labour and materials incurred by us:
(i) in supplying the Goods, if the Goods are not supplied within 3 months from the date of the Order; and/or
(ii) in performing the Services, if the Services are not completed within 12months from the date of the Order.
4.1 Invoice: Payment shall be made to us on receipt of our Invoice unless other terms are agreed in writing.
4.2 Overdue Payments: Without prejudice to our rights, we are entitled to charge interest on all amounts not paid by you, at the Default Interest Rate calculated on a daily basis on all amounts not paid within the time specified in our Invoice or payment claim.
4.3 Costs of enforcement: In addition to our right to charge interest pursuant to clause 4.4, we may recover from you any costs we incur in the collection of Payment of any Invoice, including but not limited to any costs of any debt collector or solicitor.
4.4 No Set Off: You are not entitled to set off any amounts owing or due to us.
5.1 Request for Variation: You may seek a quote for a variation to the Services(including Goods) by a request in writing.
5.2 Discretion: We may agree or refuse your request for variation at our sole discretion.
5.3 Revised Quote: If there is a variation, we will provide you with a revised Quote setting out the adjustments to the cost of the Services and change to the estimated completion date (if applicable).
5.4 Performance of Services: On acceptance by you of the revised Quote, the performance of the Services will be varied in accordance with the terms of the revised Quote.
6.1 Standard of Services: We will carry out the Services in a proper and workman like manner and in accordance with the plans and specifications (if any), all relevant Australian Standards and laws in force at the date of the performance of the Services.
6.2 Supply of Goods: We will supply the Goods which will be of suitable standard for the purpose of which they are intended. Unless otherwise specified, all Goods will be new.
6.3 Completion date: We will complete the Services with due care and skill on or around the completion date and in accordance with the agreed works program (if any).
6.4 Force Majeure Event: We will be entitled to an extension of time to complete the Services if a Force Majeure Event occurs which causes a delay to the completion ofthe Services. We will notify you of the revised estimated completion date, if necessary.
6.5 Access to site: You must provide us with clear and uninterrupted access to the relevant site until the Services are performed in full by us.
6.6 Safe access to site: You must remove any items from the site including furniture and personal goods as requested by us to ensure there is clear and safe access forus to perform the Services and to protect your property from damage.
6.7 Compliance with Safety: You must ensure that at all times during the performance of the Services, the site complies with all legislation, including the Occupational Safety and Health Act 1984 (WA). We may vary the price specified in the Quote to include any additional costs and expenses incurred by us if we needs to take any action to ensure that the site complies with all legislation required during the performance of the Services.r Road, Malaga, WA, 6090
7. Defects and Return of Goods
7.1 This clause 7 is subject to clause 8 (Exclusions and Limitations) and any other statutory or legal right whether under these Terms and Conditions or otherwise.
7.2 Notification of defects: You must notify us in writing of any major or material omissions or defects in the Services (“Defects”) which become apparent within one (1) month following the performance of the Services.
7.3 Exclusion: Defects exclude any damage caused by you or any third party.
7.4 Make good defects: We will make good at our cost any Defects notified by you pursuant to clause 7.2 and as permitted by the ACL.
7.5 Exclusion of liability: We have no liability for Defects which arise after one
(1) month from the date the Services are completed or which you have failed to notify us of within the one (1) month period from the date the Services are completed.
7.6 Home Building Contracts: Notwithstanding the above, in the event that the Home Building Contracts Act 1991 (WA) applies to an Order, the one (1) month period referred to in clause 7.2 and 7.5 above, is hereby extended to four (4) months.
8.1 Excluded rights: All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to these Terms and Conditions, that are not contained in it, are excluded to the fullest extent permitted by law.
8.2 Limitations: No warranty is given and we will not be liable for:
(a) alterations to Goods for which we are not responsible;
(b) damage or failure caused by unusual or non-recommended use or application of the Goods;
(c) loss caused by any factors beyond our control; or
(d) loss or damage resulting from any work carried out by third party installation of the Goods.
8.3 Indirect loss: We will not be liable for any special, indirect, consequential or economic loss or damage or loss of profits (in contract or tort or arising from any other cause of action) suffered by you or any other person resulting from any act or omission by us (including breach, termination or non-observance of the terms of an Order or agreement which incorporates these Terms and Conditions).
8.4 Total liability: Our total liability for breach of these Terms and Conditions or breach of our contractual obligations or duties at law or in equity (however arising) is limited at our option to:
(a) the replacement of the Goods or the supply of equivalent goods;
(b) the repair or rectification of the Services; or
(c) the reasonable direct costs of replacing the Goods or of acquiring equivalent.
9.1 Subject to the PPSA: The provisions of this clause 9 are subject to the provisions of the PPSA and clause 10 (Security Interest).
9.2 Passing of risk: The risk in the Goods shall pass to you upon the delivery of the Goods.
9.3 Possession as bailee: After delivery of the Goods, until the full Payment has been made you shall possess the Goods as bailee only.
9.4 Title: We will retain absolute title over the Goods until we have received Payment in full in respect of the Goods.
9.5 Identification: Until full title in the Goods has passed to you, you will ensure that:
(a) any identifying plate, mark or packaging number on any of the Goods is not removed, defaced or obliterated; and
(b) the Goods are identifiable and distinguishable from any other goods that may be in your possession and as to each particular Invoice of Goods.
10.1 Security Agreement: This clause 10 sets out the Security Agreement between you(Grantor) and us (Secured Party).
10.2 Creation of Security Interest: You grant to us a Security Interest in the Goods supplied by us to you, including all related proceeds (as a PMSI) as security for all orpart of the Payment of any amount relating to the Goods in accordance with these Term sand Conditions or otherwise.
10.3 Perfection: You irrevocably give authority to us to register a financing statement with respect to the Security Interest on the PPSR. Despite this prevising, we may perfect this Security Interest by any other means in accordance with the PPSA.
11.1 Prices exclusive of GST: Unless otherwise agreed, prices with respect to any taxable supply are exclusive of GST.
11.2 GST payable in addition: You must pay to us all GST in addition to any other amounts payable by you to us, which will be payable by you when required to pay for the Goods.
11.3 Issue of tax invoice: We will issue a tax invoice for any taxable supply to you, which will enable you, if permitted by the GST Law, to claim a credit for GST paid by you.
11.4 Third party supplies: If GST is payable for a taxable supply by a third party, we will request that party to provide you with a tax invoice.
12.1 Notice: Any notice, request, consent, demand or application required to be given by you or us to the other pursuant to these Terms and Conditions:
(a) must be in English and in writing; and
(b) must be either:
(i) delivered to the other Party personally; or
(ii) left at the address or sent by prepaid post addressed to the other parties address;or
(iii) sent by email addressed to the other party.
12.2 Termination: If a Default Event occurs:
(a) we may, without limiting any other right we have under these Terms and Conditions,terminate any outstanding Order and any contract for the supply of Goods to you; and
(b) all Payments and any other money under these Terms and Conditions become immediately payable.
12.3 Binding: These Terms and Conditions shall bind our successors, administrators and permitted assigns and your executors and permitted assigns, or, being a company, its successors, administrators and permitted assigns.
12.4 Assignment: We may, upon providing written notice to you, assign, sub-contract or otherwise delegate our rights or obligations under these Terms and Conditions. You may not assign, sub-contract or otherwise delegate (including to a trustee holding on trust for your benefit) any of your rights or obligations under these Terms and Conditions without our prior written consent.
12.5 Time of the essence: Time shall be of the essence in relation to any date or period.
12.6 New Terms and Conditions: If we adopt new terms and conditions:
(a) you will be given written notice if you are a Customer at the relevant time; and
(b) unless otherwise agreed, they will apply to the supply of Goods and / or Services after you accept such new terms and conditions.
12.7 Severability: Each clause in these Terms and Conditions is severable and if any clause is held to be illegal or unenforceable, then the remaining clauses will remain in full force and effect.
12.8 Waiver: No failure, delay, relation or indulgence on our part in exercising any power, right or remedy precludes any other or further exercise of that or any other power, right or remedy.
12.9 Governing law: These Terms and Conditions shall be governed by the laws of the State of Western Australia.
13. Interpretation and Definitions
13.1 Personal pronouns: Except where the context otherwise provides or requires:
(a) the terms we, us or our refers to the Company; and
(b) the terms you or your refers to the Customer.
13.2 Defined terms: In these Terms and Conditions, unless otherwise provided, the following terms shall have their meaning as specified:
ACL means the Australian Consumer Law under the Consumer and Competition Act 2010 (Cth) as amended.
Company means Home Smart WA.
Customer means any person or entity that places an Order with us and agrees by conduct or by virtue of notice or otherwise to be bound by these Terms and Conditions, including any related company, related party, officer and authorised person of the relevant person.
Default Event means any one of the following events:
(a) you fail to make any Payment when due;
(b) Winding Up commences against you;
(c) a receiver is appointed to you;
(a) you become insolvent, bankrupt or commit an act of bankruptcy;
(d) proceedings are commenced or an application is made for the appointment of any persons listed in items (b) to (e) above; or
(e) a mortgagee or their agent enters into possession of your assets.
Default Interest means interest at the rate of 12% per annum.
Force Majeure Event means circumstances beyond our reasonable control shall include, but not be limited to compliance with any laws, regulations, orders, acts, instructions or priority request of any government, or any department or agency, civil or military authority, acts of God, acts of the public enemy, your acts or omissions, fires, floods, strikes, lockouts,embargoes, wars, labour or material shortages, riots, insurrections, pandemics, epidemics,defaults of our suppliers or subcontractors, delays in transportation, or loss or damage to Goods in transit.
Goods means goods sold by the Company from time to time.
GST means a goods and services tax, or a similar value added tax, levied or imposed by the GST Law.
GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Invoice unless otherwise agreed means the invoice issued by the Company to the Customer upon provision of the Services specified in your Order.
Order means an order for provision of Services in writing received by the Company.
Payment means payment of any amount relating to the Services in accordance with these Terms and Conditions.
PMSI means a purchase money security interest as defined by s 14 of the PPSA.
PPSA means the Personal Property Securities Act 2009 (Cth) as amended, including any regulations made pursuant to it.
PPSR means the Personal Property Securities Register.
Quote means a quotation by the Company for the provision of Services containing details as specified in clause 2.2.
Security Agreement means the security agreement set out in clause 10.
Security Interest means the security interest created in clause 10.
Services means the supply and installation of Goods by the Company to the Customer.
Winding Up means commencing to be wound up, or suffering a provisional liquidator, liquidator,official manager or any other administrator of the affairs of insolvent companies to be appointed.