1. Definitions and Interpretation

Australian Consumer Law” means the Australian Consumer Law as stated in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as amended from time to time.

Claim” means and claim, loss, cost, damage or liability including in relation to injury or death;

Contractor” means 365 Holdings Pty Ltd atf CY Trading Trust ABN 60 743 549 115 its successors and assigns.

Customer” means the person or entity named on the quote provided by the Contractor.

Goods” includes, but is not limited to, glass and glass products, as described on the Contractor’s quotes, tax invoices and other documents supplied to the Customer.

Services” means the services provided by the Contractor to the Customer and include installation of glass;

Site” means the place where the Contractor’s Services will be carried out.

 2. Contract Formation

The Customer agrees and acknowledges that it has received the Trading Conditions, understands and agrees to be bound by the Trading Conditions.

 3. Quotes and Specification

a) The Contractor shall provide a quote to the Customer, which will specify the Goods and Services required to be completed and an estimate of the Contractor’s charge for the performance of the Services and supply of the Goods.

b) For supply and install contracts, the Contractor may request a deposit from the Customer, as specified in the quote.

c) The Customer shall accept the quote by signing and returning a copy of the quote or providing a purchase order. The Customer can return the copy of the signed quote or purchase order by email (scan), or any other acceptable method of electronic communication and these methods will be accepted by the Contractor and binding upon the Customer.

d) The Contractor need not commence ordering Goods or services until the quote has been accepted in writing by the Customer, and the required deposit or payment made to the Contractor. The Contractor may withdraw any quote that has not been accepted. All quotes are valid for 30 days unless withdrawn prior to acceptance.

e) The date for delivery of the Goods and Services is an estimate only. The commencement date and time shall not be of the essence in these Trading Conditions.

f) The Customer warrants that it has not relied on any representation by the Contractor other than as supplied in writing in the quote.

g) The Contractor shall not be liable for any losses caused, either directly or indirectly, by any delay of the Contractor in delivering the Goods and Services to the Customer.

h) All quotes are valid for 30 days from date of quote unless specified otherwise in writing by the Contractor. The Contractor reserves the right to amend quotes for any reason, including changes in the price of raw materials.

i) Unless otherwise specified, quotes provided to the Customer do not include nor allow for any:

i) Provision of framing or window support;

ii) Straightening or any work on the surfaces to which the glass will be applied; or

iii) Work on the vehicle of any description other than the fitting of glass.

 4. Standards and Goods

a) All glass supplied will conform to the relevant Australian Standards requirements for its intended use. If no use is specified, the glass will conform to the usual non road use for the machinery or vehicle the glass is fitted to or supplied for.

b) Surface treatments are shown to extend the life of glass however, where surface treatment is applied to any glass, there is no warranty or guarantee that the glass will perform in any manner. The surface treatments are applied in a professional manner on a best efforts basis and the Contractor will not be liable for any Claim in any way related to the performance of any glass surface treatment supplied. The Contractor does warrant that the surface treatment has been correctly applied.

c) The Customer acknowledges that glass surface treatments may not be lawful for road going vehicles and indemnifies the Contractor against any Claim in any way related to the use of the Goods.

d) The Customer indemnifies the Contractor against any Claim in any way related to the Services or the Goods other than where the Goods are not certified as meeting the relevant Australian Standards or the Contractor has been grossly negligent in providing the Services.

e) The Customer acknowledges and accepts that surface treatments may degrade over time affecting visibility and effectiveness and waives any right to claim for a defect in any way related to such degradation.

f) The Customer may not rely upon any Contractor advice in relation to the application or use of any particular Good. The Customer is liable for ensuring that the Goods selected are appropriate for the proposed use in each case.

g) The Contractor may, in its discretion, change the product information data on any product and may use an equivalent generic product provided that it conforms with all Australian standards for the proposed use.

h) Glass is to be viewed in normal lighting against an opaque background in a vertical position by a stationary observer positioned no less than 2 metres from the surface.

i) Scratches, scars and visual defects are regarded as defects provided they are visible with the naked eye when viewed from a distance of no less than 2 metres and are located in an area of the glass that a reasonable operator would require unrestricted visibility through.

j) Any visual defect in glass must be reported to the Contractor within 24 hours of delivery or the glass is deemed to be accepted free of defects.

 5) Variations

a) Variations to an accepted quote or contract may incur additional costs to the Customer.

b)The Contractor may provide a further quote for any requested variation.

 6) Cancellation

a) The Customer shall reimburse the Contractor for any and all costs, expenses or losses incurred by the Contractor if the Customer cancels an accepted quote.

 7) Customer Obligations

The Customer:

a) shall provide the Contractor with all requested and necessary information and details, including but not limited to, machinery or vehicle details including any damage, repairs or modifications that may affect installation or ordering of the Goods;

b) shall ensure that the Customer machinery or vehicle is fully insured whilst in the possession of the Contractor and indemnify the Contractor against any loss or damage to such machinery or vehicle other than due to the Contractor’s gross negligence;

c) shall indemnify the Contractor for any extra cost, loss or damage or for any variation in price caused by inaccurate information provided to the Contractor; and

d) shall indemnify the Contractor for the cost of Goods if the Contractor orders Goods based upon the inaccurate information and those Goods are not suitable for the vehicle, machinery or application.

 8) Delivery of Goods

a) Where required delivery of the Goods or provision of the Services shall be made to the Customer’s nominated address, and the Customer shall make all necessary arrangements to take safe delivery and provide prompt access. The Customer may nominate a third party address for delivery of Goods, and in that case delivery to that third party is deemed delivery to the Customer for the purpose of this agreement.

b) The Contractor is deemed to have satisfied its delivery obligations upon delivering the Goods and obtaining from the person at the delivery address nominated by the Customer a receipt or a signed delivery docket. By signing a receipt or delivery docket the Customer warrants that the Goods were delivered undamaged, in proper quantities and in good and clean condition. The Customer is liable for all Goods from the time that they are lifted from the delivery vehicle at the Site.

c) The failure of the Contractor to deliver the Goods shall not entitle the Customer to repudiate this agreement. The Contractor shall not be liable for any loss or damage due to the failure to deliver the Goods, or part of them, promptly or at all.

d) The Customer shall indemnify the Contractor for any costs, loss or damages incurred by the Contractor should Site access not be available and as a consequence the Contractor is unable to deliver the Goods or provide the Services.

 9) Site Access

a) The Customer must ensure that the Contractor has clear and unimpeded access to the Site until the Services have been completed.

b) The Customer shall indemnify the Contractor for all additional costs, charges, penalties or other imposts if the completion of the Services is delayed due to the Contractor not having clear and unimpeded access to the Site.

 10) Ability to Appoint Agents, Sub-contractors and Third Parties

The Contractor may contract, either in its own name as principal or agent for the Customer, with any agent, sub-contractor or third party for the provision of Goods and services pursuant to or ancillary to these Trading Conditions.

 11) Risk

The risk in the Goods shall pass to the Customer upon delivery to the Customer, or to a third party nominated by the Customer, and/ or installation of the Goods at the Site.

 12) Payment

a) The Customer must pay the Contractor the total amount set out in the Contractor’s invoice and within the time stated on the Contractor’s invoice, quotation or any other order forms. If no time is stated, Customers with an approved credit account must pay within 30 days of the end of the invoice month. For all other Customers payment is due seven (7) days following invoice date.

b) When agreed progress payments are not paid by the Customer, the Contractor may halt any further Services until such time as the outstanding amount is paid.

c) The Customer shall pay to the Contractor all costs, expenses or losses incurred as a result of the Customer’s failure to pay all sums outstanding by the due date for payment. Without limiting the generality of the foregoing these costs include any costs incurred by the Contractor in collecting the debt using the services of a third party debt collection agency or solicitor, and any subsequent legal costs incurred in taking legal proceedings and enforcing judgment on a solicitor/ client basis.

 13) Contractor’s Indemnity

a) The Customer, or the Customer’s nominated representative, shall remain on site during the performance of the Contractor’s services.

b) At the conclusion of the work, the Customer shall sign off that the Services have been completed by the Contractor in accordance with the quote.

c) If the Customer does not provide the requested sign off, the Customer shall indemnify the Contractor from any Claims relating to damage and or loss of property from the Site and waives any right to claim that the Services have not been properly provided.

 14) Retention of Title

a) Title in any and all Goods shall remain with the Contractor until the Customer has paid in full all monies owing pursuant to any invoice issued by the Contractor, including all GST, notwithstanding the delivery or installation of the Goods. If the Customer has on sold the Goods, the Customer will hold the proceeds of such sale upon trust for the Contractor and shall account to the Contractor for these funds.

b) If payment by the Customer is later avoided by law, then that payment shall be deemed to have not discharged the Contractor’s title in the Goods nor the Customer’s indebtedness to the Contractor.

c) Until such time that payment has been made in full the Customer is in possession of the Goods solely as bailee, and during that time the Customer must not encumber or otherwise charge the Goods, and the Customer is liable to the Contractor for any loss or damage however caused to the Goods following delivery and or installation of the Goods.

d) If the Customer fails to pay invoices issued by the Contractor for Goods and services, the Contractor may remove or repossess any Goods from the Customer and sell or dispose of the Goods. The proceeds of any sale shall be applied towards the Customer’s indebtedness to the Contractor. The Contractor shall not be liable to the Customer or to any person or entity claiming through or on behalf of the Customer.

e) Where the Contractor has not received payment as agreed from the Customer, or the payment has been dishonoured, the Contractor, its servants or agents shall have a special and general lien on the Goods and a right to sell the Goods whether by public or private sale or auction without notice to recover all monies dues under this contract. In addition, the lien shall cover the costs and expenses of exercising the lien including without limitation, the costs of sale and reasonable legal fees.

 15) Personal Properties Securities Act 2009 (“PPSA”)

a) Throughout this clause the following words have the same meanings as contained in the PPSA; Financing Change Statement, Financing Statement, Proceeds, Register, Security Agreement, Security Interest, and Verification Statement.

b) These terms and Conditions create a Security Agreement that creates a Security Interest in all Goods and Proceeds supplied to the Customer or to be supplied in the future. The Security Interest is a continuing Security Interest in all Goods and Proceeds which will operate until the Contractor signs a release.

c) The Customer waives its rights pertaining to the sections listed in sub-section 115(1) of the PPSA which will not apply to the Security Agreement as created by these Terms and Conditions.

d) The Customer will keep all Goods free of any charge, lien or Security Interest (except as required under these Terms and Conditions) and shall not deal with the Goods in a way that may prejudice any rights that the Contractor has under these Terms and Conditions or the PPSA.

e) The Customer will indemnify the Contractor for all fees and costs, including legal fees, incurred by the Contractor in registering any Financing Statement or Financing Change Statement on the Register, and in enforcing the Security Interest.

 16) Warranty

a) Any warranty on the Goods is limited to the written warranty provided by the manufacturer to the Customer on or before installation of the Goods. If no such warranty is provided then the warranty is limited to visible defects in the Glass and any Services provided in a grossly negligent manner.

b) Any warranty may be null and voided if the Goods are modified, damaged or altered or used by the Customer in a manner the Goods were not designed to perform. No warranty will be provided by the Contractor on any Goods supplied by the Customer to be used in the Services. The Contractor shall not be liable for any loss or damage as a result of any delay in replacing or repairing the workmanship or Goods.

 17) Liability/ Australian Consumer Law

a) The Customer warrants that it is not a “Consumer” for the purposes of the Australian Consumer Law. The Contractor only supplies Goods and Services to other businesses and not to Consumers.

b) Under the Australian Consumer Law various conditions and warranties may be implied into these Terms and Conditions. There are also rights and remedied conferred on the Customer which cannot be excluded, restricted or modified by the Agreement (“Non-excludable Rights”). Other than any Non-excludable Rights, the Contractor disclaims all conditions and warranties, express or implied, and all rights and remedies conferred on the Customer by statute, common law, equity or otherwise.

c) To the extent permitted by law, the liability of the Contractor for a breach of a Non-excludable Right is limited to either supplying the Goods and services again, or the payment of the cost of having the Goods and services supplied again, at the Contractor’s option.

d) The Contractor will not be liable to the Customer for any loss or damage caused by the Contractor’s failure to deliver the Goods or provide the services, as a result of earthquake, fire, flood, riot, civil disturbance, theft, crime, strike, lockout, war, the inability of the Contractor’s supplier to supply the required material, or any other circumstance beyond the Contractor’s control.

 18) Privacy

a) The Customer authorises the Contractor to collect, retain, record, use and disclose commercial information about the Customer, in accordance with the Privacy Act 1988 (Cth), for the following purposes:

i) Provision of Goods and Services;

ii) Verifying and checking the Customer’s credit; or

iii) Processing of payment instructions, direct debit or credit facilities.

b) The Contractor may provide commercial information about the Customer, in accordance with the Privacy Act 1988 (Cth), to obtain a consumer credit report about the Customer.

 19) Security, Caveat and Charge

The Customer charges all equitable and legal property, present or future, of the Customer in respect of any and all monies that might be owing by the Customer to the Contractor, and hereby authorises the Contractor or its solicitors to execute any consent form as its attorney for the purposes of registering a caveat over any real property owned by the Customer.

 20) Dispute Resolution

Either party may refer any dispute under, or arising out of, this contract to the Institute of Arbitrators & Mediators Australia, for resolution by conciliation and/ or arbitration under the Rules of the Construction Industry Dispute Resolution Scheme provided that the directors of each party have genuinely attempted to resolve such dispute in good faith and were unable to do so.

 21) No Waiver

A right or power is not waived solely because the party entitled to exercise that right or power does not do so. A single exercise of a right or power will not preclude any other or further exercise of that right or power, or of any other right or power. A right or power may be waived only in writing, signed by the party to be bound by the waiver.

 22) Severability

Any provision in these Trading Conditions which is invalid or unenforceable must be read down if possible, so as to be valid and enforceable. If the provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Trading Conditions.

 23) Governing law and Jurisdiction

These Trading Conditions are governed by the law in force in Western Australia and the parties submit to the non-exclusive jurisdiction of the Courts of Western Australia.