Terms and Conditions of Trade

 

1. About

(1) The A1 Attics business and website at <www.a1attics.com.au> (our ‘Site’) is owned and operated by WH Design Construct Pty Ltd trading as A1 Attics (ABN 61 626 808 026) (‘A1 Attics’).

(2) A1 Attics specialises in construction services of second storey additions and in the supply of attic ladders for attic conversions and roof space storage solutions (the ‘Products’). Installation of attic ladders and dust-proof attic storage rooms (the ‘Services’) are offered to our customers online on our Site and on eBay.com.au.

2. Acceptance

(1) These terms and conditions (‘Terms’) are an agreement (the ‘Agreement’) between A1 Attics and customer (‘Customer’) to allow the Customer to purchase the Products through the A1 Attics website.

(2) By purchasing our Products, you agree that you have read and agree to our Terms which we will provide to you through a link on our online form and our quotation email. As a condition of Customers use and purchase of the Products and Services, you warrant that you are a person authorised to enter into a legally binding contract for the Products.

(3) You agree that for any self-installations of our Products including our ladders that all warranties are made void. You accept that any death, injury or otherwise damage to the Product occurring through self-installation or later use after self-installation is at the risk of Customer and that A1 Attics will not be liable for any claim, Loss or liability for personal injury, death or damage to Customer or its property for self-installation however it may be caused.

(4) A1 Attics is taken to have accepted and is bound by these Terms if Customer places an order (‘Order’) for the Products or Services, and A1 Attics accepts such an Order in writing.

(5) A1 Attics may update this Agreement from time to time. Any changes to this Agreement will be effective from the date of publication.

(6) Any reference herein to “we”, “our”, “us” or “A1 Attics” means A1 Attics as the supplier of the Products and Services. Any reference to “you”, “your” or “Customer” means you as a party to this Agreement and a purchaser of our Products and Services.

3. Orders

(1) Customer may from time to time place an Order for our Products and Services online where made available or by requesting a quote (‘Quote’) from A1 Attics in accordance with its then current price list. Customer acknowledges that the price list is indicative only and subject to change by A1 Attics at any time. A1 Attics will from time to time make available to Customer updated price lists on its Site or otherwise.

(2) Any Order accepted by A1 Attics through the issue of a Quote is valid for the period shown on the Quote subject to A1 Attics’ right to withdraw a Quote at any time (and nullify an Order) where there is any discrepancy, mis-description or other material error or omission in the Quote. A1 Attics may reissue a new Quote to Customer rectifying the error or omission in the Quote

(3) Unless specifically set out in the Order, an Order does not include the cost of delivery of the Products. Customer shall be responsible for payment for the Products and Services supplied, including any GST payable and delivery costs, at the order of the Customer or any other person acting on behalf of the Customer. The prices of the Product specified or quoted are exclusive of GST and delivery costs incurred by A1 Attics unless otherwise stated.

(4) An accepted Order cannot be cancelled without the prior written consent of A1 Attics.  Where an Order is cancelled, the Customer indemnifies A1 Attics against any Losses incurred by A1 Attics as a result of the cancellation, including, but not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which has been cancelled.

(5) A1 Attics may require the Customer to pay additional charges for costs incurred by A1 Attics as a result of reliance on inadequate or incorrect information provided by the Customer. The imposition of additional charges may also occur as a result of cancellation by the Customer of an order where cancellation results in Loss by A1 Attics.

(6) Any provision of a particular Order of the Customer, which is inconsistent with, or additional to, these Terms is excluded from the Agreement between A1 Attics and the Customer.

(7) A1 Attics accepts Orders that are submitted by phone, email or A1 Attics’ online ordering facilities.

(8) Orders will not be processed for a Customer where any payments are outstanding.

4. Variations

(1) Customer may request that its Order be varied after it has been placed and accepted by A1 Attics by issuing a request in writing to A1 Attics.

(2) A request for a variation must be agreed to in writing by A1 Attics who reserves the right to agree to or reject a variation request from Customer.

(3) A1 Attics reserves the right to vary the Order to include any reasonable additional charge for any extra Product costs incurred or additional services carried out due to the variation. A revised Quote issued by A1 Attics in respect of the requested variation must be accepted in writing by Customer and through Customer’s written acknowledgement, supersedes the original Quote.

(4) A1 Attics has an automatic extension of time to deliver the Products and Services equal to the delay caused by the variation.

5. Quotation and Price

(1) The prices quoted in A1 Attics’ price lists and advertising literature from time to time are for guidance only. Unless otherwise agreed in writing, the price of the Products and Services will be as stated in A1 Attics’ Quote or price list current on the date of order of the Products and Services. Prices quoted do not include any additional charges, which will be added to the price of the Products and Services, where applicable.

(2) All prices quoted are exclusive of GST unless otherwise stated.

6. Deliveries

(1) Delivery times provided by A1 Attics are estimates only. Customer will be deemed to accept delivery of an Order when made even if a different delivery date is specified in the Order.

(2) A1 Attics shall use its best efforts to deliver the Product to the Customer on a timely basis. Any date for delivery given by A1 Attics is an estimate only and A1 Attics will not be held liable financially or otherwise for failure to deliver on or before the quoted date unless a written guarantee of delivery has been issued by A1 Attics.

(3) A1 Attics shall not accept responsibility or liability for any costs, delays or damages incurred directly or directly due to delays in transportation of Product or caused by a third party or by any events or circumstances outside the control of A1 Attics. A failure of A1 Attics to have the Product ready for delivery on a timely basis shall not entitle the Customer to be relieved of any obligation to accept and pay for the Product.

(4) A1 Attics may in its absolute discretion refuse to provide or deliver a Product where:

(a) payment for the Product ordered by the Customer has not been paid on the due date for payment;

(b) the Product is unavailable due to force majeure;

(c) credit limits cannot be agreed upon or have been exceeded; or

(d) payment for Product previously supplied to the Customer has not been received by A1 Attics in accordance with its payment terms.

(5) Back Orders mean Orders for Products not currently in stock. Back Orders will be despatched by A1 Attics as soon as possible and the Customer will accept delivery when received unless A1 Attics is advised when the Order is placed that the Order is subject to delivery within a certain period.

(5) Back Orders will be held at A1 Attics’ discretion unless advised otherwise.

(7) Special delivery requests such as, but not limited to, air freight, express delivery or drop shipments may incur additional charges at A1 Attics’ sole discretion.

(8) Any deliveries requiring second or subsequent delivery attempts, for example change of address, may be subject to additional charges for costs incurred.

(9) The Customer shall inspect the Product upon receipt. Customer may reject the Products if the Products are not in accordance with Customer’s Specifications, are defective or do not meet the requirements under the Order. If at the time of delivery, Customer is dissatisfied for any reason with the Products, it must inform A1 Attics of any issues by written Notice within seven (7) calendar days of the delivery of the Products (‘Complaint’) otherwise the Products are deemed to have been accepted by Customer.

(10) In the event of a Complaint by Customer, the following process will apply:

(a) A1 Attics will investigate the Complaint and agree with Customer as to the process (‘Rectification Process’) required to complete the supply and delivery of the Product to a satisfactory standard;

(b) if the Products are found to be damaged or otherwise defective, the Rectification Process will include a replacement or a refund for a major failure of the Product where there is a minor problem with the Product, A1 Attics has the option to give you a free repair instead of a replacement or a refund.

7. Payment and GST

(1) Payment in full (including GST and delivery costs) shall be made by the Customer within seven (7) days of the date of A1 Attics’ invoice, unless otherwise agreed in writing with A1 Attics, and the method of payment must be approved by A1 Attics. A1 Attics may require in its discretion payment in full for its Product and Services or payment of a deposit prior to delivery.

(2) All payments are in Australian Dollars (AUD).

(3) Customer will be liable for all costs of collection and any legal fees incurred by A1 Attics in recovering amounts payable under this Agreement.

(4) All fees payable under this Agreement are exclusive of GST. If GST is imposed on any supply made under or in accordance with this Agreement, the Customer must pay to A1 Attics an additional amount equal to the GST payable on or for the taxable supply in accordance with the GST Law.

8. Return of Products and Services

(1) A1 Attics does not offer returns and refunds for ‘buyer’s remorse’ or if the Customer has changed its mind.

(2) The Customer is entitled to return a faulty Product. The Customer can choose a refund or exchange if a Product has a major fault. If the fault is minor, A1 Attics may elect to give the Customer a free repair instead of a replacement or refund.

(3) Product will only be accepted for credit if returned within 45 days of date of delivery and must be accompanied by a request for credit quoting the original invoice number, date and reason for return.

(4) Products that have been modified or excessively handled will not be accepted as a return. No credit will be allowed for Products that have been used, modified or damaged or used in a manner or purpose for which the Product was not intended.

(5) Returns or refunds are made in our discretion subject to any guarantees that cannot be excluded under the Australian Consumer Law.

9. Damaged in Transit Claims

To recognise a claim for Products damaged in transit by A1 Attics’ carriers, A1 Attics must be notified, in writing, within 72 hours of delivery, failing which the Products will be deemed to have been received and accepted by the Customer and A1 Attics will have no further liability in relation to the Products except where otherwise required by law.

10. Title and Risk

(1) Notwithstanding delivery of any Product to the Customer, the title in the Product shall remain with A1 Attics until the price (inclusive of GST and delivery costs) thereof has been paid in full. The risk of Loss or damage to the Product shall pass to the Customer upon delivery.

(2) The Customer acknowledges that it is in possession of the Product as bailee for A1 Attics from the time of its delivery until all money due to A1 Attics has been paid in full.

(3) Where Product is supplied by A1 Attics to the Customer without payment in full of all moneys payable in respect of the Product provided by A1 Attics, the Customer:

(a) is a bailee of the Product until title in them passes to the Customer;

(b) irrevocably appoints A1 Attics its attorney to do all acts and things necessary to ensure the retention of title to Product including the registration of any security interest in favour of A1 Attics with respect to the Product under applicable law;

(c) must be able upon demand by A1 Attics to separate and identify as belonging to A1 Attics the Product supplied by A1 Attics from other Product which are held by the Customer;

(d) must not allow any person to have or acquire any security interest in the Product;

(e) agrees that A1 Attics may repossess the Product if payment is not made within 14 days (or such longer time as A1 Attics may, in its complete discretion, approve in writing) of the supply of the Product; and

(f) grants an irrevocable licence to A1 Attics or its agent to enter the Customers premises or premises under its control in order to recover possession of Product pursuant to this paragraph.

(4) Until payment the Customer agrees to store, keep or use the Product on its premises in a manner where the Product is readily identifiable as A1 Attics’ goods.

(5) The Customer’s right to possession of the Product, shall cease if it does anything or fails to do anything which would entitle a receiver to take possession of any assets or which would entitle a person to present a petition for winding up or bankruptcy of the Customer.

11. Personal Property Securities ACT 2009 (‘PPSA”)

(1) This Agreement is a security Agreement.

(2) The interest of A1 Attics in the Product and all proceeds from the sale of the Product by A1 Attics to a third party is a security interest.

(3) The Customer consents to A1 Attics registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by A1 Attics to facilitate registration.

(4) Until such time as title in the Product has passed to the Customer as contemplated by clause 7 above, the Customer agrees not to in any way assign, charge, lease or otherwise deal with the Product in such a manner as to create a security interest over the Product in favour of the Customer or any third party. The parties agree that this clause will not prohibit the Customer from selling the Product in the ordinary course of business.

(5) The Customer waives its rights to receive any Notice under the PPSA (including Notice of verification statement) unless the Notice is required by that Act and cannot be excluded.

(6) A1 Attics and the Customer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of A1 Attics’ security interest in the Product or of this Agreement:

(a) any requirement for A1 Attics to give the Customer a Notice of removal or accession;

(b) any requirement for A1 Attics to give the Customer a Notice of A1 Attics proposed disposal of the Product;

(c) any requirement for A1 Attics to include in a statement of account, after disposal of the Product, the details of any amounts paid to other secured parties;

(d) any requirement for A1 Attics to give the Customer a statement of account if A1 Attics does not dispose of the Product;

(e) any right the Customer has to redeem the Product before A1 Attics exercises a right of disposal; and

(f) any right the Customer has to reinstate this Agreement before A1 Attics exercise a right of disposal of the Product.

(7) Expressions defined in the PPSA have the same meaning when used in this Agreement.

12. Limitation of Liability

(1) Except as expressly provided to the contrary in this Agreement and to the maximum extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise, relating in any way to the supply of Products and Services are excluded.

(2) Without limiting the generality of the preceding paragraph, A1 Attics will not be under any liability to the Customer in respect of any Loss or damage (including consequential Loss or damage, economic loss, loss of profits, loss of business or data) however caused (whether by negligence, breach of contract, statute or otherwise), which may be suffered or incurred by the Customer for any reason, or which may arise directly or indirectly in respect of the failure or omission on the part of A1 Attics to comply with its obligations under this Agreement. A1 Attics’ maximum aggregate liability for any cause and under any head of liability will not under any circumstances exceed the price paid by Customer to A1 Attics for the Products and Services.

(3) A1 Attics’ liability for breach of any implied warranties or conditions in respect of the Products and Services which cannot be excluded by law is limited, to the maximum extent permitted by law, at A1 Attics’ option to either the supply of Products and Services again by A1 Attics or the payment of the cost of replacement of the Products and Services.

(4) The Customer covenants and agrees to release A1 Attics, its successors and assigns, as well as its officers and agents from all actions, claims, demands and causes of action which they may have against A1 Attics, its officers or agents in respect of, arising out of or resulting from the supply of the Products and Services or this Agreement.

(5) Certain legislation in Australia, including the Australian Consumer law, provides Consumers with guarantees and rights which cannot be excluded, restricted or modified or which may in certain cases only be modified or restricted to a limited extent. Nothing in this Agreement excludes, restricts or modifies, or is intended to exclude, restrict or modify, any guarantee, condition, warranty, right or liability implied by law (including any guarantee, condition, right or liability imposed under the Australian Consumer law) which cannot lawfully be excluded, restricted or modified.

13. Dispute Resolution

(1) Compulsory process. A party shall not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a Dispute unless it has complied with this clause.

(2) Notification. A party claiming that a Dispute has arisen shall notify each other party to the Dispute giving details of the Dispute.

(3) Initial period – efforts to resolve Dispute. During the 30-day period after a Notice is given (or longer period agreed in writing by the Parties to the Dispute) (Initial Period) each party to the Dispute (Disputant) covenants with the other to cooperate and take all reasonable steps necessary to attempt to resolve the Dispute.

(4) Mediation. If the Disputants are unable to resolve the Dispute within the Initial Period, each Disputant agrees that the Dispute shall be referred for mediation, at the request of any Disputant, to:

(a) a mediator agreed on by the Disputants; or

(b) if the Disputants are unable to agree on a mediator within seven days after the end of the Initial Period, then the parties must submit the dispute for mediation through the Chair of Resolution Institute (ACN 008 651 232) or the Chair’s designated representative and the Resolution Institute Mediation Rules shall apply to the mediation.

(5) Role of mediator. The role of any mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a Disputant unless that Disputant has so agreed in writing.

(6) Information. Any information or documentation disclosed by a Disputant under this clause shall be kept confidential and may not be used except to attempt to resolve the Dispute.

(7) Costs of mediation. Each Disputant shall pay its own costs of complying with this clause. The Disputants shall pay equally the costs of any mediator engaged.

(8) Location, timing and attendance. The mediation will be held in Perth, Australia, within 30 days after expiry of the Initial Period. Each Disputant agrees to attend the mediation by a representative having full authority to resolve the dispute. At the mediation each Disputant may be represented by one or more legal representative.

(9) Failure to resolve. If the dispute fails to resolve at mediation or if one of the Disputants fails or refuses to attend the mediation, the mediator will be requested to inform each Disputant in writing that the mediation has been terminated without resolution (Mediation Termination Notice). Upon receipt of Mediation Termination Notice, the dispute resolution process will be terminated. A party to a dispute will only be entitled to pursue other remedies available to it at law or otherwise, after receipt of Mediation Termination Notice.

(1o) Confidentiality. All communications concerning negotiations made by the Disputants arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable law of evidence.

14. Warranty and Support

(1) Consumer guarantees under the Australian Consumer Law (‘ACL’) cannot be excluded but all other warranties, express or implied, are hereby excluded unless otherwise expressly stated. If the Customer is defined as a consumer under the ACL, A1 Attics provides the Customer guarantees as set out in the ACL.

(2) If A1 Attics ascertains that the Product is not defective within the terms of a warranty granted by A1 Attics, then the Customer shall pay A1 Attics all costs of handling and repairs at A1 Attics’ then prevailing repair rates.

(3) The warranty is contingent upon proper use, installation and application of the Product and shall not apply to defects or failures resulting directly or indirectly from causes not within A1 Attics’ reasonable control, defects or failures due to accident, neglect, misuse, or failure or defect in the use of related products not provided by A1 Attics.

(4) The warranty shall not apply to any Product which has been subject to unusual physical stress or if any party other than A1 Attics or its authorized representative modifies, adjusts, repairs or attempts repair of the Product.

15. Indemnity

The Customer will indemnify A1 Attics against and agrees to reimburse if for any expenses it may incur in recovering or attempting to recover payment from the Customer for any amount which may from time to time be overdue. These costs include legal court, solicitors, debt collections agency commissions and fees.

16. Intelectual Property

(1) A1 Attics reserves all of its Intellectual Property Rights in all inventions, names, illustrations, drawings, plans, specifications, formulas, data, information and documents relating to the Products and Services.

(2) Nothing in this Agreement operates or is intended to affect or limit any such rights held of A1 Attics or confer on Customer, any such rights or any other Intellectual Property Rights in the Products and Services.

(3) Customer agrees that A1 Attics will retain any Intellectual Property Rights in the Products and Services and any materials created as part of the Products and Services and Customer shall not challenge, contest or deny the validity of A1 Attics’s Intellectual Property Rights.

(4) If a party becomes aware of any infringement or threatened infringement of any of the Intellectual Property Rights under this Agreement, the party will promptly notify the other party in writing giving particulars of the alleged infringement.

(5) This clause survives the termination or expiry of this Agreement for whatever reason.

17. Termination

(1) The A1 Attics may, at its absolute discretion, withdraw, reduce or terminate any credit facility offered to the Customer and/or terminate this Agreement for convenience by giving written Notice of its decision.

(2) Upon the termination of this Agreement the Customer shall immediately pay to A1 Attics all moneys otherwise payable to A1 Attics in full and without any deduction or set-off.

18. Notices

Any Notice by a p