TERMS AND CONDITIONS OF SALE

These are the entire Terms and Conditions of Sale of all goods, merchandise and services (Goods) supplied by JELD-WEN AUSTRALIA PTY LIMITED (ACN 087 012 226) (ABN 62 087 012 226) and any associated and related companies or businesses and its subsidiaries trading under various business names (all of which are referred to as JELD-WEN) to any person, firm or company placing an order with JELD-WEN for the purchase of any Goods (Customer). Except as otherwise expressly agreed upon in writing between a duly authorised officer of JELD-WEN and the Customer, these Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by any Customer, or any other contract executed by the Customer and JELD-WEN. Any supply of Goods by JELD-WEN to the Customer made after the date of acceptance of these Terms and Conditions is a supply pursuant to the supply agreement constituted by these Terms and Conditions and the relevant order accepted by JELD-WEN in respect of any such supply does not give rise to a new or separate Agreement.


1. DEFINITIONS AND INTERPRETATION

1.1 “Business Day” means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made.

1.2 “Customer” means any person, firm or company placing an order with JELD-WEN for the purchase of any Goods and to whom the Quotation is addressed and/or any person who accepts the Quotation.

1.3 “Contract” means the contract for the sale of the Goods and the supply of the Services specified in the Order and subject to these terms and conditions of sale.

1.4 “Courts” means, in relation to a Jurisdiction, those courts and tribunals exercising jurisdiction in that Jurisdiction, including any competent Federal court exercising jurisdiction in that Jurisdiction.

1.5 “Domestic Building Acts” means:

1.5.1 the Home Building Act 1989 (NSW);

1.5.2 the Domestic Building Contracts Act 2000 (Qld);

1.5.3 the Domestic Building Contracts Act 1995 (Vic); and

1.5.4 the Home Building Contracts Act 1991 (WA);

1.5.5 the Building Work Contractors Act 1995 (SA);

1.5.6 the Building Act 2000 (TAS);

1.5.7 the Building Act 2004 (ACT);

1.5.8 the Building Act (NT);

as amended from time to time, and includes any other laws or regulations which imply certain warranties into the contract between JELD-WEN and the Customer.

1.6 “Goods” means the Goods, merchandise, and services the subject of the Quotation.

1.7 “Order” means the acceptance of the Quotation in whole or in part by the Customer.

1.8 “Person” includes companies.

1.9 “Quotation” means the document issued by JELD-WEN outlining its estimate of the cost for the provision of specified Goods and Services.

1.10 “Services” means the Services, if any, to be supplied with the Goods and the subject of the Quotation.

1.11 “inter-related account” means an account where:

  • the relevant Customer or guarantor(s) are the one and the same as those of another account held with JELD-WEN; or
  • is an account where:
  • the Customer or its guarantor(s) are a “related entity” of a second Customer holding an account with JELD-WEN; or
  • The guarantor(s) of the second Customer are a “related entity” to the relevant first Customer or its guarantor(s) for the purposes of the Corporations Act 2001.

1.12 Headings are for convenience only and do not form part of these terms and conditions of sale.

1.13 Reference to the singular includes the plural and the plural includes the singular.

1.14 Reference to one gender includes the others.

2. PLACING ORDERS

2.1 Any person who accepts the Quotation warrants and represents he/she is the duly authorised agent of the Customer for the purpose of placing the Order. An Order is deemed to have been accepted by the Customer upon the signing of the Quotation and/or payment of a deposit. By accepting the Order the Customer is deemed to have read and understood the JELD-WEN terms and conditions of sale.

2.2 No quotation by JELD-WEN shall constitute an offer.

2.3 JELD-WEN reserves the right to accept a part order by notifying the Customer in writing or by delivering the Goods to the Customer.

2.4 The Customer acknowledges that JELD-WEN has no obligation to agree to provide, or continue to provide any credit facilities to the Customer. The Customer is not entitled to any credit facilities until it receives notice from JELD-WEN to that effect and JELD-WEN may in its absolute discretion at any time by notice to the Customer reduce, vary or terminate any such credit facilities. Any credit limit that may apply from time to time in respect of credit facilities is for the administrative convenience and solely for the benefit of JELD-WEN and such credit limit does not constitute a term of this agreement nor of any Deed of Guarantee, Indemnity and Charge in respect of the obligations of the Customer.

2.4.1 Should JELD-WEN exercise its rights under clause 2.4 to reduce, vary or terminate any such credit facilities JELD-WEN may refuse to deliver further Goods to the Customer unless such Goods are paid by the Customer in cash before delivery.

2.5 The Customer must check all details of the Goods in the Quotation and/or Order form in relation to quantities, description, sizes, dimensions, colour, glass (if not clear float ) and accessories. Unless otherwise represented by JELD-WEN, to the extent permitted by law, JELD-WEN will not be liable for any incorrect details of the Goods in relation to quantities, description, sizes, dimensions, colour, glass (if not clear float ) and accessories.

3. TERMS OF PAYMENT

3.1 Unless JELD-WEN otherwise determines, payment terms are thirty (30) days from end of month of delivery and any deviation from these terms must be agreed to in writing between JELD-WEN and the Customer. In situations where payment terms are not provided to a Customer and subject always to any restrictions imposed by the Domestic Building Acts, the Customer must make payment in full at the time of placing the Order.

3.2 Unless otherwise agreed in writing by JELD-WEN, all invoices and statements will be issued by email, to the email address nominated by the Customer. If the Customer requests that the invoices and statements are to be sent to it by post, in hardcopy paper form, JELD-WEN reserves the right to charge the Customer a paper account fee per month. It is agreed between the parties that this fee is agreed as the liquidated cost of issuing a paper invoice. The fee is payable simultaneously with the account invoice to which it relates to.

3.3 The Customer is not entitled to defer, offset or withhold payment in whole or in part for any reason unless agreed to by JELD-WEN in writing. Customers who have overdue accounts are precluded from participating in any special deals, discounts, bonus payment redemptions, rebates and all other incentive programs until their accounts are paid up to date.

3.4 If at any time monies are overdue or any trading account the Customer maintains with JELD-WEN is in arrears, then at the option of JELD-WEN (but subject always to any restrictions imposed by the Domestic Building Acts) the whole account balance shall become immediately due and owing by the Customer.

3.5 JELD-WEN may, at its absolute discretion, charge interest on all overdue accounts at the published monthly Reserve Bank of Australia cash rate plus two (2) percent per month calculated and payable daily, compounded from the due date until the invoice is paid in full.

3.6 JELD-WEN will charge a reasonable administration fee for any payment made by credit card and the amount to be charged will be advised to the customer at the time of placing the order.

3.7 If JELD-WEN is required to deviate from the Quotation in order to fulfil the Order, JELD-WEN may, in its absolute discretion, charge the Customer to the fullest extent permitted by law for any additional costs incurred by JELD-WEN in so doing. A Certificate signed by an authorised representative of JELD-WEN shall be prima facie evidence of the amount of indebtedness of the Customer to JELD-WEN at that time.

3.8 The Customer is liable to pay to JELD-WEN and JELD-WEN may recover in full from the Customer all costs, expenses and disbursements incurred and / or payable by JELD-WEN (including debt collection agency fees and legal costs on a solicitor/client basis) arising from or as a result of JELD-WEN’s exercising or enforcing or seeking to exercise or enforce a right under these Terms and Conditions or the accompanying Deed of Guarantee, Indemnity and Charge, and in particular, in collecting or attempting to collect amounts due to JELD-WEN. Such costs, expenses and disbursements may be recovered by JELD-WEN from the Customer as a liquidated debt. JELD-WEN may apply payments received from the Customer firstly to any costs, expenses and disbursements, then to interest and then to other amounts owed by the Customer.

3.9 Where JELD-WEN, in its absolute discretion, determines that any one or more inter-related accounts is non-compliant with the Terms of Payment under clause 3 of these Terms and Conditions then JELD-WEN may elect to suspend the supply of Goods and/or cancel any or all inter-related accounts whereby invoices rendered to all inter-related accounts shall become immediately due and payable to JELD-WEN.

4. ABILITY TO SUPPLY

4.1 Any obligation of JELD-WEN to supply Goods or Services is subject to its ability to secure labour, materials and other Services for the manufacture and supply of the Goods and Services.

4.2 JELD-WEN shall not be liable in any way for failure to deliver the Goods and/or supply the Services within the stated time and the Customer may not reject the Goods and/or Services nor will they be relieved from any obligation to pay for the Goods on account of such failure to deliver within the stated time.

4.3 JELD-WEN shall not be liable for any failure to supply or deliver the Goods or Services due to strikes, fires, explosions, flood, riot, lock-out, injunction, and interruption of transportation, accidents, war, governmental action or other circumstances beyond JELD-WEN’s control.

4.4 If for any reason JELD-WEN is unable to perform its obligations under the Contract, then JELD-WEN may at any time by notice in writing to the Customer terminate the Contract whereupon the Contract will be at an end and any deposit money paid by the Customer will be refunded by JELD-WEN and save for the recovery of the deposit neither party will have any claim against the other.

5. PRICES

5.1 Except for sub-clause 5.2, the prices on the Quotation shall remain current for thirty (30) days. JELD-WEN reserves the right to vary the prices after the lapse of thirty (30) days to the extent permitted by law.

5.2 Quotations given for site glazing will remain valid for a period of three (3) months (Aneeta 30 days) from date of completed manufacture of the Goods. JELD-WEN reserves the right to vary the charge after the lapse of three (3) months (Aneeta 30 days), to the extent permitted by law.

5.3 The quoted price is based upon the particular specifications of the Goods current at the time of Quotation. JELD-WEN reserves the right, to the extent permitted by law, to vary the price and the Customer agrees to pay such varied price if:

5.3.1 there is any variation in specification after the Order is placed; or

5.3.2 additional costs are incurred by JELD-WEN from the imposition of a special site allowance, or allowances applying to a project of which JELD-WEN was not advised of in writing before the date of the Quotation or where special site allowances that apply to a project have not been allowed for. Such additional costs relating to new or additional site allowances must be paid for by the Customer to JELD-WEN as amounts payable in addition to the sum stated in the Agreement;

5.3.3 the invoice price or contract price is varied as a consequence of currency fluctuations, taxes, customs duty or other imposts. Notwithstanding any other clause of these terms and conditions of sale, if any supply by JELD-WEN is subject to Goods and Services Tax (GST), the Customer must, unless the price on the Quotation expressly states that GST is included, pay an additional amount to JELD-WEN. The additional amount:

5.3.4 is equal to the price payable by the Customer for the relevant supply multiplied by the prevailing GST rate; and

5.3.5 is payable at the same time and in the same manner as the price for the supply to which the additional amount relates.

5.4 The Customer must pay to JELD-WEN all charges, duties, imposts, taxes (including any goods and services taxes and sales taxes) and similar amounts payable in relation to the sale or supply of any Goods or services by JELD-WEN to the Customer.

5.5 The Customer is not entitled to make any claim upon JELD-WEN if any amounts are outstanding from the Customer to JELD-WEN. The Customer is not entitled to set off any amounts against any amounts owed by the Customer to JELD-WEN unless specifically agreed to by JELD-WEN in writing. JELD-WEN may at any time set off amounts owed by JELD-WEN to the Customer against any sums owed by the Customer to JELD-WEN.

6. DELIVERY

6.1 The Customer authorises JELD-WEN to deliver the Goods to the place nominated by the Customer and to leave the Goods at such place whether or not any person is present to accept delivery. JELD-WEN shall not be liable on any basis whatsoever for loss suffered by the Customer after delivery to the Customer’s nominated delivery address.

6.2 JELD-WEN reserves the right to charge the Customer packing, crating and delivery charges in accordance with JELD-WEN’s current rates as at the date of dispatch. If there is no current rate, then a reasonable charge shall apply.

6.3 Delivery of the Goods shall be deemed to occur when they are handed to the Customer or his representative or are delivered to the premises or site or carrier nominated by the Customer and the Goods shall thereafter be at the Customer’s risk.

6.4 Upon the signing of a delivery docket unless the contrary is noted in that docket, the Goods shall be deemed to have been delivered in good order and condition and if no person is present to sign the delivery docket then the Goods will be deemed to have been delivered in good order and condition.

6.5 To the extent permitted by law, the Customer may only return Goods if a shortage, damage or other fault at the time of delivery is reported by the Customer to JELD-WEN within twenty four (24) hours of delivery and confirmed in writing within seven (7) days of such report. Any goods that have been modified at the request of the Customer will not be accepted for return. JELD-WEN reserves the right at its absolute discretion to charge a restocking fee of 15% of the Purchase Price of any Goods returned, which may be deducted from any refund. The Customer agrees that the restocking fee is a genuine pre-estimate of damages and not a penalty.

6.6 The Customer agrees to accept delivery of the Goods or to make alternative delivery arrangements within seven (7) days of JELD-WEN notifying the Customer that the Goods are available for delivery. To the extent permitted by law, JELD-WEN reserves the right at its absolute discretion to charge a minimum fee of $50 plus two (2) percent of the order value per week or part thereof, if the Customer fails to accept or make alternative arrangements for delivery within seven (7) days of being advised that delivery is ready. The Customer agrees that such fee and percent of order value is a genuine pre-estimate of damages and not a penalty.

6.7 Written advice to the Customer that Goods are ready for delivery whether in whole or in part shall constitute a tender of the Goods and the terms of payment shall apply.Where the parties have agreed that the Customer will advise JELD-WEN of a “load date” (being a date for delivery), the Customer must:

6.7.1 give sufficient notice of the load date (being not less than the standard published lead time for the Goods to be manufactured and delivered); and

6.7.2 ensure that the load date is not more than ninety (90) days after the date of the Order.To the extent permitted by law, the Customer shall be responsible to JELD-WEN for any extra costs (which term shall include actual costs and imputed costs for storage, handling or demurrage) incurred by JELD-WEN as a result of failure of the Customer to take delivery of the Goods at the time and place specified. JELD-WEN will be entitled to a lien over the Goods until such costs have been paid in full.

6.8 If the Customer is required to give JELD-WEN notice of a load date under this clause 6, and fails to do so within ninety (90) days after placing the Order, JELD-WEN reserves the right to:

6.8.1 review and vary the price payable by the Customer under the Quotation to the extent permitted by law, if JELD-WEN considers it reasonable to increase those prices to reflect JELD-WEN’s then current prices for such Goods (or equivalent Goods), in which case the Customer must pay the difference on demand; and/or

6.8.2 supply to the Customer equivalent Goods to those described in the Quotation but which may contain slight variations in design. Such variations will not materially affect the dimensions, operation or appearance of the Goods. JELD-WEN must inform the Customer of such variations at the time of delivery of the Goods.

6.9 If the Customer fails to accept any part of the Goods which JELD-WEN has dispatched in conformity with the Contract and such part of the Goods is returned to JELD-WEN and re-dispatched subsequently, then JELD-WEN may, to the extent permitted by law, require the Customer to pay on demand a charge equal to double the current delivery charge.

6.10 It is the Customer’s responsibility on delivery to ensure that all Goods conform to its specification and requirements and no claims will be accepted for defects ascertainable on delivery in respect of Goods not confirming to the Customer’s written specifications and requirements, unless made in writing within fourteen (14) days after delivery.

6.11 Any claim by the Customer that any Goods or services invoiced by JELD-WEN have not been delivered to or received by the Customer must be communicated in writing by the Customer to JELD-WEN within fourteen (14) days that the Goods or services were invoiced, failing which the Customer will be deemed to have received delivery of the Goods or services.

7. TITLE

7.1 Goods are at the Customer’s risk from delivery and property in the Goods supplied by JELD-WEN to the Customer will not pass to the Customer until the money owing for those Goods and any other money owing by the Customer to JELD-WEN has been paid. The Customer in the meantime takes custody of the Goods as the fiduciary agent and bailee of JELD-WEN.

7.2 Where the Customer does not make payment in respect of specific Goods, payment must be treated as having been made first in respect of Goods which have passed out of the possession of the Customer, and then in respect of whatever Goods still in the possession of the Customer JELD-WEN elects.

7.3 Until the Goods have been paid for in full:

7.3.1 the Customer must store the Goods in such a manner as to show clearly that they are the property of JELD-WEN. The Customer acknowledges that if it should mix the Goods with other products or items such that the Goods are no longer separately identifiable then the Customer and JELD-WEN will be owners in common of the new product;

7.3.2 the Customer may sell the Goods, in the ordinary course of its business, but only as fiduciary agent of JELD-WEN. Any right to bind JELD-WEN to any liability to a third party by contract or otherwise is expressly negatived. The Customer receives all proceeds, whether tangible or intangible, direct or indirect, of any dealing with the Goods (including any proceeds from insurance claims) in trust for JELD-WEN and must keep the proceeds in a separate bank account until the liability to JELD-WEN is discharged;

7.3.3 must keep all Goods insured against theft, damage, and destruction (and if the Customer fails to insure the Goods, JELD-WEN may do so and invoice the Customer for the cost of insurance); and the Customer agrees not to sell, assign, charge or otherwise encumber or grant any interest over any obligations which any third party may owe to the Customer as a result of the use, manufacture or resale of the Goods.The Customer hereby irrevocably authorises JELD-WEN at any time, to enter any premises:

7.3.4 upon which the Goods are stored to enable JELD-WEN to:

7.3.4.1 inspect the Goods; and/or

7.3.4.2 if the Customer has breached these terms and conditions, reclaim possession of the Goods,

7.3.4.3 inspect and copy the Customer’s records pertaining to the Goods.

7.4 The provisions of this clause 7 apply notwithstanding any arrangement between the parties under which JELD-WEN or a related body corporate grants the Customer credit.

7.5 The right to on-sell, deal or otherwise dispose of the goods in the normal course of trade may be revoked at any time by JELD-WEN and shall automatically cease if the Customer does not pay JELD-WEN, the Customer is unable to pay its debts as they fall due, the Customer ceases or suspends the conduct of its business or threatens to, execution is levied on any of the Customer’s assets, a Receiver is appointed over any of the assets on the undertaking of the Customer or if a winding up order is made against the Customer or if the Customer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation) or administration or calls a meeting of, or makes any arrangement or composition with, creditors or commits any act of bankruptcy, or where the Customer is in default of any of its obligations to JELD-WEN. The customer agrees that at that time any and all amounts outstanding or payable then become due and payable immediately.

8. WARRANTY AND GUARANTEES

8.1 Our Goods come with warranties and guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

8.2 Where you are not a “consumer” within the meaning of the Australian Consumer Law, the guarantees referred to in sub-clause 8.1 do not apply.

8.3 In addition to any rights or remedies that you may have under the Australian Consumer Law or any other law, and subject to sub-clauses 8.4, 8.5 and 8.6, JELD-WEN warrants that if, the Goods prove defective by reason of faulty workmanship and/or operating failure from the date of shipment within (Warranty Period):

 (a) seven (7) years (or other period as detailed in sub-clause 8.4) for Stegbar, Regency, Airlite, Breezway Australia, and Trend Windows & Doors Goods (with the exception of consumables such as fly mesh and beading); or

(b) five (5) years (or other period as detailed in sub-clause 8.4) for Corinthian and William Russell Goods; or

(c) six (6) years for Aneeta Goods (or other period as detailed in Clause 8.3.1 below); or

(d) one (1) year for Fenestra Goods

JELD-WEN will repair or replace the Goods without charge.

8.4 Reinforced glass, toughened glass, float glass, laminated glass, painted glass, high performance glass, framed mirror glass, and moving parts (including but not limited to hardware) which wear out as a part of normal use, are guaranteed against defects and degradation for a period of:

(a) three (3) years for Stegbar, Regency and Airlite, and Breezway Goods;

(b) two (2) years for Aneeta Goods;

(c) one (1) year for Trend Windows & Doors and Fenestra Goods

Ongoing maintenance is required to not void the guarantee under this clause.

8.5 The warranty in sub-clause 8.3 does not apply and to the extent permitted by law JELD-WEN will not be liable:

8.5.1 if the Goods have not been properly handled, installed, maintained

and operated in accordance with JELD-WEN’s standard specifications

and recommendations;

8.5.2 if payment has not been received in full for the Goods;

8.5.3 in respect of any fault or failure arising from misuse, damage or neglect to the Goods by the Customer.

8.5.4 where the Goods include doors (other than wardrobe doors):

8.5.4.1 if the door(s) are not sealed within one month from the date of delivery with two coats of paint or varnish to both faces and all edges, including top and bottom and are hung in the correct manner;

8.5.4.2 unless exterior finishes have been applied to exterior doors and in light reflective colours;

8.5.4.3 for doors up to 2,150mm high, a warp of less than 4mm and for door heights between 2,150mm and 2,400mm, a warp of less than 6mm. For doors greater than 2,400mm a warp of less than 7mm.

8.5.4.4 if bleeding stains occur when painting timber and an oil based undercoat has not been used to cover and seal the stain; or

8.5.4.5 if solid construction doors have not been hung with 3 x 100mm hinges.

8.5.5 where the Goods include wardrobe doors, if the wardrobe door(s) contain a warp less than five millimetres.

8.5.6 For hardware Goods:

8.5.6.1 where the Goods are incorporated into another entity’s or manufacture’s product;

8.5.7 fading, colour change or damage caused by the external environment due to normal weather conditions (that will cause any coloured surface to fade or darken gradually).

8.5.8 for manufacturing standards and tolerances nor industry variations in colour of aluminium, plastic and timber componentry.

8.6 JELD-WEN will not be responsible under clause 8.3 for additional charges of hanging, painting or other charges arising from the replacement of doors (including wardrobe doors) or for installation, removal, labour or other costs arising from the replacement of any glass Goods.

8.7 In order to claim under the warranty in sub-clause 8.3 you must:

8.7.1 Contact JELD-WEN at the address below within the warranty period; or

8.7.2 contact the supplier within the warranty period; and

8.7.3 provide the original proof of purchase.

8.8 This warranty does not include the cost of transportation to or from JELD-WEN.

9. LIABILITY

9.1 Subject to clause 8, the only conditions, guarantees and warranties which are binding on JELD-WEN in respect of the state, quality or condition of the Goods and/or the Services (including advisory Services) are those imposed and required to be binding by statute (including the Australian Consumer Law and, if applicable, the Domestic Building Acts) and which cannot be excluded. To the extent permitted by law, the liability, if any, of JELD-WEN arising from the breach of such conditions, guarantees or warranties shall, at JELD-WEN’s option, be limited to and completely discharged in the case of the Goods, either the replacement or the repair by JELD-WEN of the Goods and in the case of the Services, by the supplying of the Services again. The Customer must bear the costs of returning to JELD-WEN any Goods in respect of which a warranty claim is made. All other conditions, guarantees and warranties whether express or implied by law in respect of the state, quality or condition of the Goods and/or the Services which may apart from this clause be binding on JELD-WEN are hereby expressly excluded.

9.2 To the fullest extent permitted by law and subject to clause 9.1, JELD-WEN has no liability to any person for any loss or damage of any kind whatsoever including without limitation, for any indirect or consequential loss (including loss of profits, business, revenue, opportunity, goodwill, or loss arising from any failure, breakdown, defect or deficiency in the Goods and/or the Services) arising out of or in connection with the Goods and/or the provision of the Services.

10. CANCELLATION AND DEFAULT

10.1 The Contract may be cancelled/varied by the Customer only with the written consent of JELD-WEN. To the extent permitted by law, JELD-WEN may require as a condition of its consent that the Customer pay reasonable charges for such cancellation/variation, which take into account expenses incurred by JELD-WEN to the date of cancellation/variation, including recompense for any commitments made by JELD-WEN in consequence of the Order and all other losses both actual and prospective, incurred as a result of such cancellation/variation.

10.2 JELD-WEN shall be entitled to suspend delivery of the Goods and / or services or any part thereof and/or terminate the Contract if the Customer either fails to perform or observe any condition of the Contract including the terms of payment and/or delivery arrangements or if the Customer is made bankrupt, has a liquidator, receiver or official manager appointed for all or any part of his assets, or has a winding up order made against him, enters into any composition with creditors, voluntary insolvency administration or ceases or threatens to cease business. Such suspension and/or termination shall be without prejudice to and shall not affect any rights of JELD-WEN against the Customer prior thereto.

10.3 Upon termination of the Contract by JELD-WEN the security deposit (if any) shall be forfeited to JELD-WEN and JELD-WEN may either sue the Customer for breach of Contract or resell the Goods and any deficiency arising on such resale or attempted resale and all expenses of and incidental to the Customer’s default shall be recoverable by JELD-WEN from the Customer as liquidated damages. JELD-WEN may retain any monies paid by the Customer on account of the Contract other than the security deposit forfeited, as security for any damages awarded to JELD-WEN for the Customer’s default.

11. PRIVACY

11.1 The Customer acknowledges that JELD-WEN may collect personal and credit information in connection with JELD-WEN’s dealings with the Customer or any Guarantor in accordance with JELD-WEN’s Privacy Statement, Privacy Policy, Credit Reporting Policy and Statement of Notifiable Matters pursuant to the Credit Reporting Code, the Privacy Act 1988 (Cth), the Privacy (Enhancing Privacy Protections) Act 2012, and the Australian Privacy Principles, and the Customer consents to that information being collected. A copy of JELD-WEN’s Privacy Statement, Privacy Policy, Credit Reporting Policy and Statement of Notifiable Matters will be provided to the Customer upon request in writing, and can be found on our website at http://www.jeld-wen.com.au/.

12. NOTICES

12.1 A statement in writing signed by JELD-WEN’s duly authorised officer (“Notice”) stating all or any of the following matters, facts or things:

(a) The amount due at any date for good(s) supplied to the Customer;

  • The amount due at any date for interest on the monies due;
  • The amount due at any time for legal costs actually incurred by the Company including costs of and incidental to any litigation, stamp duties and other expenses payable on these terms and conditions, or any credit application, guarantee or other security documents signed by the Customer together with any collection costs or dishonoured cheque fees;

(d) The date of making the default in performing or observing any terms and conditions, covenant or agreement to be performed or observed by the Customer;

(e) Whether such default has continued between specified dates;

(f) Anything else relevant to the establishment of any right or remedy of JELD-WEN and the liability of the Customer. Shall be conclusive and prima facia evidence of the Customer’s indebtedness to JELD-WEN and any such matter(s), fact(s), or thing(s) stated in the Notice.

12.2 A notice or other communication connected with these terms and conditions (“Notice”) has no legal effect unless it is in writing. In addition to any other method of service provided by law, the Notice may be sent by prepaid post to the address of the addressee set out in the Contract or subsequently notified; sent by facsimile to the facsimile number of the addressee; sent by email to the email address of the addressee; or delivered at the address of the addressee set out in the Contract or subsequently notified.

12.3 If the Notice is sent or delivered in a manner provided by clause 12.2, it must be treated as given to and received by the party to which it is addressed:

12.3.1 if sent by post, on the 2nd Business Day (at the address to which it is posted) after posting;

12.3.2 if sent by facsimile or email before 5pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt; or

12.3.3 if otherwise delivered before 5pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.

12.3.4 a facsimile is not treated as given or received unless at the end of the transmission the sender’s facsimile machine issues a report confirming the transmission of the number of pages in the Notice.

12.3.5 an email message is not treated as given or received if the sender’s computer reports that the message has not been delivered; and

12.3.6 a facsimile or email message is not treated as given or received if it is not received in full and in legible form and the addressee notifies the sender of that fact within 3 hours after the transmission ends or by 12 noon on the Business Day on which it would otherwise be treated as given and received, whichever is later.

13. ELECTRONIC COMMUNICATIONS

13.1 In addition to delivery in person, via post and via facsimile, the customer agrees to have invoices and statements sent via email.

13.2 The Customer agrees that email communications from JELD-WEN to the Customer constitute an “electronic communication” within the meaning of the Electronic Transactions Act 2000 (NSW).The Customer agrees that in agreeing to receive invoices and statements via email, and the service of notices via e-mail under the NSW Act 1999 or any like or similar legislation that may be applicable in the State or Territory where the goods were delivered to the Customer, the Customer is in all instances designating “an information system for the purpose of receiving electronic communications” within the meaning of the Electronic Transactions Act 2000 (NSW).

13.3 The Customer agrees that evidence of the “dispatch” (within the meaning of the Electronic Transactions Act 2000 (NSW) by JELD-WEN of an email is also prima facie evidence of the “receipt” of the email by the Customer within the meaning of the Act. Unless the contrary is proven the time of receipt will be deemed to be twenty (20) seconds after the time of the “dispatch” of the email.

14. PERSONAL PROPERTY SECURITIES ACT 2009 (“PPS ACT”) (PURCHASE MONEY SECURITY INTEREST (“PMSI”) AND ALL PRESENT AND AFTER ACQUIRED PROPERTY (“APAAP”)

14.1 JELD-WEN and The Customer hereby acknowledge that the PPS Act applies to all transactions pursuant to the Terms and Conditions of Sale or otherwise, and that the Goods under these Conditions fall within the PPSA classification of “Other Goods” acquired by the Customer pursuant to these conditions.

14.2 The Customer herby grants a charge to JELD-WEN over all and any of their present and after acquired goods and or property (“ALPAAP”) as security for all monies, indebtedness and obligations now and in the future owing by the Customer under this Agreement.

14.3 The Customer hereby agrees to do all such things and sign all such documents as are necessary and reasonably required to enable JELD-WEN to acquire a perfected security interest in all goods supplied.

14.4 The Customer hereby agrees to provide such information as is required to enable registration of a Purchase Money Security Interest (“PMSI”) under the PPS Act.

14.5 The Customer hereby acknowledges that it will indemnify JELD-WEN for any liability and/or for any costs of registration, maintenance, enforcement or discharge or security interest and such other costs and expenses as JELD-WEN may incur under this Agreement.

14.6 The Customer hereby agrees that it will not, without written notice change its name, its structure, status or partnership, or assign or sell its business to another party, or initiate any change to any registered documentation, or act in any manner which would impact on the registered security interest of JELD-WEN. No such event shall affect the liability of the Customer named in any applications for credit, until a new application for credit made in the name of the Customer (applicant and/or the new entity) as restructured or changed is received and approved by JELD-WEN.

14.7 JELD-WEN may allocate amounts received from the Customer in any manner it determines fit, but in default will apply same first to payment of any unsecured amount owing to JELD-WEN, next as to any reasonable enforcement expense and then as to any secured balance owing to JELD-WEN.

14.8 The Customer will not (except with JELD-WEN’s written consent) allow to be, or be liable to become, perfected or attached in favour of any person, a security interest or transitional security interest in any of the monies from time to time payable to JELD-WEN (if any) or otherwise; and whether to a provider of new value or otherwise.

14.9 The Customer will not (as against any person who is a “related entity” of the Customer for the purposes of the Corporations Act 2001) without the prior written consent of JELD-WEN, before or until all monies payable to JELD-WEN in connection with the Agreement is paid in full:

  • Exercise a right of contribution or indemnity;
  • Claim the benefit of ( for example, by subrogation ), or seek priority ahead of, the transfer of or the benefit of a security JELD-WEN holds in connection with this Agreement;
  • Try to reduce liability to JELD-WEN through a set off or counterclaim; or
  • Prove in competition with JELD-WEN if the Customer is unable to pay debts when due.
  • Seek to perfect or attach in favour of the Customer or another ( either jointly or severally) a security interest in any of the Customer’s present or after acquired property which would rank in priority to the entitlements of JELD-WEN

14.10 To the extent permissible at law, the Customer:

(a) waives its rights to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to JELD-WEN.

(b) agrees to indemnify JELD-WEN on demand for all costs and expenses, including legal costs and expenses on a solicitor/client basis; associated with the;

(i) registration or amendment or discharge of any Financing Statement or a Financing Change Statement registered by or on behalf of JELD-WEN;

(c) agrees they and JELD-WEN contract out of and that nothing in the provisions of Sections 95, 96, 117, 118, 121(4), 130, 132(3)(d), 132(4), 142 and 143 of the PPSA will apply to these Terms Conditions or the Security under these Terms Conditions;

(d) agrees to waive its rights under Sections 95, 123, 129, 130, 130(4); 132(3) (d), 135, and 143 of the PPSA:

14.11 The Customer hereby consents and appoints JELD-WEN to be an interested person and the Customer’s authorised representative for the purposes of section 275(9) of the PPSA.

14.12 JELD-WEN may assign or transfer this Agreement and/or any security under the PPSA to a related body corporate at any time by written notice to the Customer. The Customer must not assign or transfer the benefit or obligations of this Agreement without the prior written consent of JELD-WEN, which JELD-WEN will not unreasonably withhold.

This PMSI does not lose its priority as a result of the renewal, refinance, consolidation, or restructure of the subject matter of these terms and conditions and any purchase money obligations.

14.13 For the purposes of section 20(1) and (2) of the PPSA, and to ensure maximum benefit and protection for JELD-WEN under the PPSA, the Customer consents to grant JELD-WEN, as security for the Customer’s indebtedness and obligations, a charge over all of the Customers present and after-acquired property.

15. GOVERNING LAW

15.1 The Customer agrees that these Terms and Conditions of Sale shall be construed according to the laws of the State or Territory as JELD-WEN may in its sole discretion determine. Proceedings by either JELD-WEN or the Customer may be instituted and/or continued in the specific Court in such State or Territory as JELD-WEN may in its sole discretion determine. Failing such determination the Customer consents to any proceedings being instituted and heard by any appropriate Court sitting in the State of New South Wales applying the laws of that State.

16. MISCELLANEOUS

16.1 If any condition of a Customer’s Order, or any contract executed between the customer and JELD-WEN, conflicts with or purports to vary these conditions, then these conditions shall prevail to the extent of any inconsistency or variation unless otherwise agreed upon in writing.

16.2 The only terms and conditions binding on JELD-WEN are those contained herein or otherwise agreed to in writing by JELD-WEN and those, if any, which are imposed and which cannot be excluded by law.

16.3 Unless otherwise stated in the Quotation, all glass shall be clear glass.

16.4 It is expressly agreed that any variations in colour or texture of any material used in the Goods shall not be a defect.

16.5 If scaffolding and/or hoisting facilities are required for the removal of the Goods from the delivery vehicle or for their installation those facilities shall all be the responsibility of and at the cost of the Customer.

16.6 If anything in these terms and conditions or the Contract is unenforceable, illegal or void then it is severed and the rest of these terms and conditions and the Contract remain in force.

16.7 For the avoidance of doubt, the price variation provisions in Clauses 5 and 6 do not apply to Contracts for the supply of Services in Victoria.

16.8 JELD-WEN shall not be liable for and the Customer shall indemnify and keep JELD-WEN indemnified against, any liability and any loss or damage JELD-WEN may sustain as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any Terms and Conditions by the Customer or its representative.

16.9 The Customer agrees not to use any Goods for:

16.9.1 part of any aircraft of whatsoever nature; or

16.9.2 any other unintended purpose, unless the Customer or any other person establishes by a complete and comprehensive testing procedure that the Goods are fit for that purpose, and also where reasonable, a qualified engineer certifies that the Goods are fit for that purpose.

16.10 These Terms and Conditions are not to be construed to the disadvantage of the party because that party was responsible for its preparation.

16.11 The Customer acknowledges and agrees to charge all and any of the Customer’s interest in real property, whether held in its own right or as Trustee of any Trust, both (a) present and (b) future in order to secure payment of any and all monies.

16.12 JELD-WEN may at any time, and from time to time, alter these Terms and Conditions of Sale and such altered Terms and Conditions of Sale shall apply from the date of alteration as notified by JELD-WEN. A copy of current Terms and Conditions of Sale can be found on JELD-WEN’s website www.jeld-wen.com.au The Customer acknowledges and warrants that he/she/it will regularly inspect the said website for any updated or altered Terms and Conditions and that there is no duty or obligation whatsoever on JELD-WEN to inform or advise the Customer of any such altered Terms.

17. PRODUCTION SPECIFICATION

17.1 It is the Customer’s responsibility, in accordance with the relevant Australia Standards, to advise JELD-WEN in writing of:

  • the window ratings;
  • design window pressures;
  • suitable terrain category;
  • any design specifications; and
  • the relevant building codes and Australian Standards

(“Building Specifications”) applicable to the installation site for all windows, louvres and doors.

17.2 Should the Customer fail to advise JELD-WEN of the Building Specifications in writing, all Goods produced will be suitable for fully sheltered terrains and will sustain the minimum ratings for wind and water.

17.3 To the extent permitted by law, JELD-WEN will not be liable for the non-compliance and/or faulty performance of any windows, louvres or doors where the customer failed to advise JELD-WEN in writing of the Building Specifications.

17.4 The Customer must inform JELD-WEN on the Order Form as to any specific purposes for which the Goods are to be used.

18. INTELLECTUAL PROPERTY

18.1 Where Goods are manufactured to the Customer’s specification, the Customer will indemnify and keep indemnified JELD-WEN against any liability to or action by a third party for infringement or alleged infringement of a patent, registered design, trademark or copyright arising from JELD-WEN complying with the Customer’s specifications.

18.2 No right or licence is hereby granted to the Customer to use any patent, copyright, registered design, trademark or other industrial property right of JELD-WEN or otherwise.

19. TRANSFER

19.1 Obligations and rights under these Terms

and Conditions cannot be assigned or

 transferred to any third party without

JELD-WEN’s written consent, such consent not to be unreasonably withheld.