Terms & Conditions of Trade

1. Definitions
1.1 “Exclusive Shutters and Blinds” shall mean Live Ink Pty Ltd T/A Exclusive Shutters and Blinds, its successors and assigns or any person acting on behalf of and with the authority of Live Ink Pty Ltd T/A Exclusive Shutters and Blinds.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Exclusive Shutters and Blinds to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Works” shall mean all Works (including the supply of Materials, as hereinafter defined) undertaken by Exclusive Shutters and Blinds for the Client, which includes any advice or recommendation, and are as described on the invoices, quotation, work authorisation or any other forms as provided by Exclusive Shutters and Blinds to the Client.
1.5 “Materials” shall mean all Materials supplied by Exclusive Shutters and Blinds, which are required to complete the Works.
1.6 “Price” shall mean the Price payable for the Works as agreed between Exclusive Shutters and Blinds and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the Client acquires Works as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
3. Acceptance
3.1 Any instructions received by Exclusive Shutters and Blinds from the Client for the supply of Works and/or the Client’s acceptance of Works supplied by Exclusive Shutters and Blinds shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Exclusive Shutters and Blinds.
3.4 The Client shall give Exclusive Shutters and Blinds not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Exclusive Shutters and Blinds as a result of the Client’s failure to comply with this clause.
3.5 Works are supplied by Exclusive Shutters and Blinds only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment

4.1 At Exclusive Shutters and Blind’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Exclusive Shutters and Blinds to the Client in respect of Works supplied; or
(b) Exclusive Shutters and Blind’s quoted Price (subject to clause 4.2) which shall be binding upon Exclusive Shutters and Blinds provided that the Client shall accept Exclusive Shutters and Blind’s quotation in writing within thirty (30) days.
4.2 Exclusive Shutters and Blinds reserves the right to change the Price in the event of a variation to Exclusive Shutters and Blind’s quotation. Any variation from the plan of scheduled Works or specifications of the Materials (including, but not limited to, any variation at the request of the Client, the effects of changes to wage rates due to industry awards, Exclusive Shutters and Blinds not being given clear and uninterrupted access to the site of the Works, or as a result of increases to Exclusive Shutters and Blinds in the cost of Materials) will be charged for on the basis of Exclusive Shutters and Blinds quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At Exclusive Shutters and Blind’s sole discretion:
(a) payment shall be due on completion of the Works; or
(b) detailed progress payment claims may be submitted by Exclusive Shutters and Blinds in accordance with the specified payment schedule, and such claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
4.4 Time for payment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated, then payment shall be due seven (7) days following the date of the invoice.
4.5 Payment will be made by cheque, bank cheque, direct credit, or by any other method as agreed to between the Client and Exclusive Shutters and Blinds.
4.6 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

5. Delivery of Work
5.1 Subject to clause 5.2 it is Exclusive Shutters and Blind’s responsibility to ensure that the Works start as soon as it is reasonably possible.
5.2 The Works commencement date will be put back and the Installation period extended by whatever time is reasonable in the event that Exclusive Shutters and Blinds claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Exclusive Shutters and Blind’s control including but not limited to any failure by the Client to:
(a) select; or
(b) have the site ready for the Works; or
(c) notify Exclusive Shutters and Blinds that the site is ready.
5.3 The failure of Exclusive Shutters and Blinds to deliver shall not entitle either party to treat this contract as repudiated.
5.4 Exclusive Shutters and Blinds shall not be liable for any loss or damage whatever due to failure by Exclusive Shutters and Blinds to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the control of Exclusive Shutters and Blinds.
6. Risk
6.1 If Exclusive Shutters and Blinds retains ownership of the Works nonetheless, all risk for the Works passes to the Client on delivery.
7. Title

7.1 Exclusive Shutters and Blinds and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid Exclusive Shutters and Blinds all amounts owing for the Materials; and
(b) the Client has met all other obligations due by the Client to Exclusive Shutters and Blinds in respect of all contracts between Exclusive Shutters and Blinds and the Client.
7.2 Receipt by Exclusive Shutters and Blinds of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Exclusive Shutters and Blind’s ownership or rights in respect of the materials shall continue.
7.3 It is further agreed that:
(a) until such time as ownership of the Materials shall pass from Exclusive Shutters and Blinds to the Client Exclusive Shutters and Blinds may give notice in writing to the Client to return the Materials or any of them to Exclusive Shutters and Blinds. Upon such notice the rights of the Client to obtain ownership or any other interest in the Materials shall cease; and
(b) Exclusive Shutters and Blinds shall have the right of stopping the Materials in transit whether or not delivery has been made; and
(c) if the Client fails to return the Materials to Exclusive Shutters and Blinds then Exclusive Shutters and Blinds or Exclusive Shutters and Blinds agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the materials are situated and take possession of the Materials.

8. Security and Charge

8.1 Despite anything to the contrary contained herein or any other rights which Exclusive Shutters and Blinds may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to In-Situ or Exclusive Shutters and Blind’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Exclusive Shutters and Blinds (or Exclusive Shutters and Blind’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Exclusive Shutters and Blinds elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Exclusive Shutters and Blinds from and against all Exclusive Shutters and Blind’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Exclusive Shutters and Blinds or Exclusive Shutters and Blind’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 9.1.

9. Errors or Omissions
9.1 The Client shall inspect the Works on completion and shall within sixty (60) days of such time (being of the essence) notify Exclusive Shutters and Blinds of any alleged defect, error or omission, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Exclusive Shutters and Blinds an opportunity to inspect the Works within a reasonable time following such notification if the Client believes the Works are defective in any way. If the Client shall fail to comply with these provisions the Works shall be presumed to be free from any defect or damage. For defective Works, which Exclusive Shutters and Blinds has agreed in writing that the Client is entitled to reject, Exclusive Shutters and Blinds liability is limited to either (at Exclusive Shutters and Blind’s discretion) replacing the Works or rectifying the Works except where the Client has acquired Works as a consumer within the meaning of the Trade Practices Act 1974 (Cth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Works, or rectification of the Works, or replacement of the Works.
10. Warranty

10.1 Subject to the conditions of warranty set out in clause 11.2, Exclusive Shutters and Blinds warrants that if any defect in any workmanship of Exclusive Shutters and Blinds becomes apparent and is reported to Exclusive Shutters and Blinds within twelve (12) months of the date of delivery (time being of the essence) then Exclusive Shutters and Blinds will either (at Exclusive Shutters and Blind’s sole discretion) replace or remedy the workmanship.
10.2 The conditions applicable to the warranty given by clause 11.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Works; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Exclusive Shutters and Blinds; or
(iii) any use of any Works otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Works after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease, and Exclusive Shutters and Blinds shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Exclusive Shutters and Blind’s consent.
(c) in respect of all claims Exclusive Shutters and Blinds shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
10.3 For Materials not manufactured by Exclusive Shutters and Blinds, the warranty shall be the current warranty provided by the manufacturer of the Materials. Exclusive Shutters and Blinds shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.

11. Default and Consequences of Default
11.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Exclusive Shutters and Blind’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
11.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by In- Situ.
11.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Exclusive Shutters and Blinds from and against all costs and disbursements incurred by Exclusive Shutters and Blinds in pursuing the debt including legal costs on a solicitor and own client basis and Exclusive Shutters and Blind’s collection agency costs.
11.4 Without prejudice to any other remedies Exclusive Shutters and Blinds may have, if at any time the Client is in breach of any obligation (including those relating to payment) Exclusive Shutters and Blinds may suspend or terminate the supply of Works to the Client and any of its other obligations under the terms and conditions. Exclusive Shutters and Blinds will not be liable to the Client for any loss or damage the Client suffers because Exclusive Shutters and Blinds has exercised its rights under this clause.
11.5 If any account remains overdue after thirty (30) days, then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.6 Without prejudice to Exclusive Shutters and Blind’s other remedies at law Exclusive Shutters and Blinds shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Exclusive Shutters and Blinds shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Exclusive Shutters and Blinds becomes overdue, or in Exclusive Shutters and Blind’s opinion the Client will be unable to meet its payments as they fall due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
12. Cancellation
12.1 Exclusive Shutters and Blinds may cancel any contract to which these terms and conditions apply or cancel the Works at any time before the Works are completed by giving written notice to the Client. On giving such notice Exclusive Shutters and Blinds shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Exclusive Shutters and Blinds for Works already supplied. Exclusive Shutters and Blinds shall not be liable for any loss or damage whatsoever arising from such cancellation.
12.2 In the event that the Client cancels the Works, then the Client shall be liable for any loss incurred by Exclusive Shutters and Blinds (including, but not limited to, any amounts owing by the Client to Exclusive Shutters and Blinds for Works already supplied and any loss of profits) up to the time of cancellation.
12.3 Cancellation of orders for Materials made to the Client’s specifications or non-stockist items will definitely not be accepted, once the order has been processed.
13. Privacy
13.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Exclusive Shutters and Blinds to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Exclusive Shutters and Blind’s .
13.2 The Client agrees that Exclusive Shutters and Blinds may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
13.3 The Client consents to Exclusive Shutters and Blinds being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
13.4 The Client agrees that personal credit information provided may be used and retained by Exclusive Shutters and Blinds for the following purposes (and for other purposes as shall be agreed between the Client and Exclusive Shutters and Blinds or required by law from time to time):
13.5 Exclusive Shutters and Blinds may give information about the Client to a credit reporting agency for the following purposes:
13.6 The information given to the credit reporting agency may include:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
(a) the provision of Works; and/or
(b) the marketing of Works by Exclusive Shutters and Blinds, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Works.
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Exclusive Shutters and Blinds is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Exclusive Shutters and Blinds, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by Exclusive Shutters and Blinds has been paid or otherwise discharged.
14. General
14.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
14.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
14.3 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 courts of Gosford.
14.4 Exclusive Shutters and Blinds shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Exclusive Shutters and Blinds of these terms and conditions.
14.5 In the event of any breach of this contract by Exclusive Shutters and Blinds the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price.
14.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Exclusive Shutters and Blinds nor to withhold payment of any invoice because part of that invoice is in dispute.
14.7 Exclusive Shutters and Blinds may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
14.8 The Client agrees that Exclusive Shutters and Blinds may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Exclusive Shutters and Blind notifies the Client of such change. Except where Exclusive Shutters and Blinds supplies further Works to the Client and the Client accepts such Works, the Client shall be under no obligation to accept such changes.
14.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
14.10 The failure by Exclusive Shutters and Blinds to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Exclusive Shutters and Blind’s right to subsequently enforce that provision.
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