“Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact, previous credit applications, credit history and pricing details.
“Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
“Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer.
If the Customer does not wish to allow Cookies to operate in the background when using Versiclad’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
“Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Versiclad to provide Goods or Services as specified in any proposal, quotation, order, invoice, or other documentation, and:
if there is more than one Customer, is a reference to each Customer jointly and severally; and
if the Customer is a partnership, it shall bind each partner jointly and severally; and
if the Customer is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
includes the Customer’s executors, administrators, successors, and permitted assigns.
“Goods” means all Goods or Services supplied by Versiclad to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
“Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Versiclad and the Customer in accordance with clause 5 below.
“Site” means the physical site address where the Goods are intended to be installed by the Customer
“Versiclad” means Versiclad Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Versiclad Pty Ltd.
Acceptance
The parties acknowledge and agree that:
they have read and understood the terms and conditions contained in this Contract; and
the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
The Customer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, the Goods are not or cease to be available, Versiclad reserves the right to substitute comparable Goods (or components of the Goods) and vary the Price as per clause 5.2. In all such cases Versiclad will notify the Customer in advance of any such substitution and also reserves the right to place the Customer’s order on hold until such time as Versiclad and the Customer agree to such changes.
Any advice, recommendation, information or assistance provided by Versiclad in relation to Goods or Services supplied is given in good faith to the Customer, or the Customer’s agent, and is based on Versiclad’s own knowledge and experience and shall be accepted without liability on the part of Versiclad. Where such advice or recommendations are not acted upon then Versiclad shall require the Customer or their agent to authorise commencement of the Services in writing. Versiclad shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Errors and Omissions
The Customer acknowledges and accepts that Versiclad shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
resulting from an inadvertent mistake made by Versiclad in the formation and/or administration of this Contract; and/or
contained in/omitted from any literature (hard copy and/or electronic) supplied by Versiclad in respect of the Goods or Services.
In circumstances where the Customer is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Customer is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not) (“Customer Error”). The Customer must pay for all Goods it orders from Versiclad notwithstanding that such Goods suffer from a Customer Error and notwithstanding that the Customer has not taken or refuses to take Delivery of such Goods. Versiclad is entitled to, at its absolute discretion waive its right under this sub-clause in relation to Customer Errors.
Change in Control
The Customer shall give Versiclad not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone, change of trustees, or business practice). The Customer shall be liable for any loss incurred by Versiclad as a result of the Customer’s failure to comply with this clause.
Price and Payment
At Versiclad’s sole discretion, the Price shall be either:
as indicated on any invoice provided by Versiclad to the Customer upon placement of an order for Goods.; or
Versiclad’s quoted Price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
Versiclad reserves the right to change the Price:
if a variation to the Goods which are to be supplied is requested; or
if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or as a result of unforeseen circumstances beyond Versiclad’s control (including, but not limited to, adverse weather conditions that affect shipping or on-site delivery etc.) which are only discovered on commencement or during the course of the Services.
Variations will be charged for on the basis of Versiclad’s quotation, and will be detailed in writing, and shown as variations on Versiclad’s invoice. The Customer shall be required to respond to any variation submitted by Versiclad within ten (10) working days. Failure to do so will entitle Versiclad to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
A non-refundable deposit may be required upon placement of an order for Goods, in accordance with any quotation provided by Versiclad or as notified to the Customer prior to the placement of an order for Goods.
Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Versiclad. before delivery of the Goods.
Payment may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and Versiclad.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Versiclad an amount equal to any GST Versiclad must pay for any supply by Versiclad under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Delivery of Goods
Delivery (“Delivery”) of the Goods is taken to occur at the time that the Customer or the Customer’s nominated carrier takes possession of the Goods at Versiclad’s address; or Versiclad (or Versiclad’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
The cost of Delivery will be payable by the Customer in accordance with the quotation provided by Versiclad to the Customer, or as otherwise notified to the Customer prior to the placement of an order for Goods.
Versiclad may deliver the Goods in separate instalments.
The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery.
Any time specified by Versiclad for Delivery of the Goods is an estimate only and Versiclad will not be liable for any loss or damage incurred by the Customer because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. If Versiclad is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then Versiclad shall be entitled to charge a reasonable fee for redelivery and/or storage.
Where Versiclad is required to store the Goods, the Customer acknowledges and accepts that an additional storage fee of:
ten percent (10%) of the order value shall apply for Goods held in storage between sixty (60) to ninety (90) days; or
fifteen percent (15%) of the order value shall apply for Goods held in storage between ninety (90) to one hundred and twenty (120) days.
Accuracy of Customer’s Plans, Measurements and Site-specific information
In the event the Customer gives information relating to the Goods (including, but limited to, any plans, specifications, measurements, quantities and other information, including the Wind Classification for the Site, and suitability and structural adequacy of any existing buildings and related components on the Site for which the Goods were purchased and intended to be installed on and connected to:
it is the Customer’s responsibility to verify the accuracy of the information before the Customer or Versiclad places an order based on the information. Versiclad accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause; and
Versiclad shall be entitled to rely on the accuracy of such information. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, Versiclad accepts no responsibility for any loss, damages, or costs however resulting therefrom.
Risk
Risk of damage to or loss of the Goods passes to the Customer on Delivery.
If the Customer requests Versiclad to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
The Customer acknowledges and accepts that all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in Versiclad‘s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the Contract, unless expressly stated as such in writing by Versiclad.
A warning sticker pertaining to the Goods shall be displayed on the packaging of the Goods. It is the Customer’s responsibility to ensure that all instructions, recommended uses, applications, and installation methods for the Goods are followed, and that any cautions or warnings are observed.
Versiclad shall not be liable for any defect, deterioration and/or damage to the Goods:
if the Goods are stored off site for extended periods of time as a result of any action/inaction by the Customer; or
in the event that the Goods are damaged during transit, once delivered to the Customer, from the Delivery site to an alternative site by the Customer; or
resulting from incorrect handling and/or use and/or installation of the Goods by the Customer or any other third party; or
where the Goods have not been used and/or maintained in accordance with the Versiclad’s recommendations/instructions; or
where the Customer makes changes to the configuration of the Patio structure such as installing walls that reduce the quantity of open sides to the Patio from that quantity communicated to Versiclad and understood by Versiclad at the time of order confirmation and acceptance.
Compliance with Laws
The Customer and Versiclad shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services.
Title
Title of the Goods shall pass from Versiclad to the Customer upon delivery of the Goods to the Customer at the nominated delivery location. Until such delivery, all rights, title and interest in and to the Goods shall remain with Versiclad.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
The Customer must inspect the Goods on Delivery and must within seven (7) days of Delivery notify Versiclad in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Versiclad to inspect the Goods.
Versiclad provides a ten (10) year manufacturer’s warranty on the Goods. As Versiclad does not install the Goods, no warranty is offered on the installation of the Goods by either the Customer and/or third party.
Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-Excluded Guarantees”).
Versiclad acknowledges that nothing in these terms and conditions purports to modify or exclude the “Non-Excluded Guarantees”.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Versiclad makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Versiclad’s liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Customer is a consumer within the meaning of the CCA, Versiclad’s liability is limited to the extent permitted by section 64A of Schedule 2.
If Versiclad is required to replace the Goods under this clause or the CCA, but is unable to do so, Versiclad may refund any money the Customer has paid for the Goods.
If the Customer is not a consumer within the meaning of the CCA, Versiclad’s liability for any defect or damage in the Goods is:
limited to the value of any express warranty or warranty card provided to the Customer by Versiclad at Versiclad’s sole discretion.
limited to any warranty to which Versiclad is entitled, if Versiclad did not manufacture the Goods; and/or
otherwise negated absolutely.
Subject to this clause 11, returns will only be accepted provided that:
the Customer has complied with the provisions of clause 11.1; and
Versiclad has agreed that the Goods are defective; and
the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
the Goods are returned in as close a condition to that in which they were delivered as is possible.
Notwithstanding clauses 11.1 to 11.9 but subject to the CCA, Versiclad shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
the Customer failing to properly maintain or store any Goods;
the Customer using the Goods for any purpose other than that for which they were designed;
the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
the Customer failing to follow any instructions or guidelines provided by Versiclad; and/or
fair wear and tear, any accident, or act of God.
Notwithstanding anything contained in this clause if Versiclad is required by law to accept a return, then Versiclad will only accept a return on the conditions imposed by that law.
Subject to clause 11.1, customised, or non-stock list items or Goods made or ordered to the Customer’s specifications are not acceptable for credit or return.
Intellectual Property
Where Versiclad has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Versiclad. Under no circumstances may such designs, drawings and documents be used without the express written approval of Versiclad.
The Customer warrants that all designs, specifications, or instructions given to Versiclad will not cause Versiclad to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Versiclad against any action taken by a third party against Versiclad in respect of any such infringement.
The Customer agrees that Versiclad may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Versiclad has created for the Customer.
Cancellation
Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Goods and/or Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
If Versiclad, due to reasons beyond Versiclad’s reasonable control, is unable to deliver any Goods and/or Services to the Customer, Versiclad may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Customer. On giving such notice Versiclad shall repay to the Customer any money paid by the Customer for the Goods and/or Services. Versiclad shall not be liable for any loss or damage whatsoever arising from such cancellation.
The Customer may cancel Delivery of the Goods by written notice served after the placement of the order, and within up to twenty-four (24) hours after the final order confirmation phone call with Versiclad. If the Customer cancels Delivery in accordance with this clause the Customer will be entitled to a full refund of all amounts paid.
After the Customer places the order, Versiclad may at their discretion cancel Delivery of the Goods before the Goods are delivered, by giving written notice to the Customer. If the Delivery of the Goods is cancelled by Versiclad the Customer will be entitled to a full refund of all amounts paid. Versiclad shall not be liable for any loss or damage whatsoever arising from such cancellation in Accordance with this Clause.
If the Customer cancels Delivery of the Goods by written notice after a period of twenty-four (24) hours has elapsed following the final order confirmation phone call with Versiclad the customer will receive a refund equal to 50% of the Order total. If the Customer has paid a deposit of 50% of the Order total for the Goods and cancels Delivery in accordance with this clause the Customer will not be entitled to any refund.
Privacy Policy
All emails, documents, images, or other recorded information held or used by Versiclad is Personal Information, and therefore considered Confidential Information. Versiclad acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including Part IIIC of the Act being the Privacy Amendment (Notifiable Data Breaches) Act 2017 (“NDB”) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Versiclad acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by Versiclad that may result in serious harm to the Customer, Versiclad will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
Notwithstanding clause 14.1, privacy limitations will extend to Versiclad in respect of Cookies where the Customer utilises Versiclad’s website to make enquiries. Versiclad agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
IP address, browser, email client type and other similar details;
tracking website usage and traffic; and
reports are available to Versiclad when Versiclad sends an email to the Customer, so Versiclad may collect and review that information (“collectively Personal Information”).
If the Customer consents to Versiclad’s use of Cookies on Versiclad’s website and later wishes to withdraw that consent, the Customer may manage and control Versiclad’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
The Customer shall have the right to request (by e-mail) from Versiclad:
a copy of the Personal Information about the Customer retained by Versiclad and the right to request that Versiclad correct any incorrect Personal Information; and
that Versiclad does not disclose any Personal Information about the Customer for the purpose of direct marketing.
Versiclad will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
The Customer can make a privacy complaint by contacting Versiclad via e-mail. Versiclad will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
Service of Notices
Any written notice given under this Contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this Contract;
by sending it by registered post to the address of the other party as stated in this Contract; or
if sent by email to the other party’s last known email address.
Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
General
Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any Contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the Sydney Courts in that state. These terms prevail over all terms and conditions of the Customer (even if they form part of the Customer’s purchase order).
Versiclad may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent provided the assignment does not cause detriment to the Customer.
The Customer cannot licence or assign without the written approval of Versiclad.
Versiclad may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Versiclad’s subcontractors without the authority of Versiclad.
The Customer agrees that Versiclad may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Versiclad to provide Goods to the Customer.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc., (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to Versiclad, once the parties agree that the Force Majeure event has ceased.
Both parties warrant that they have the power to enter this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.
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