These terms and conditions apply to the supply of Product by Jay’s Synthetic Grass ACN 601 285 821
1. BINDING AGREEMENT
1.1 Customer Quote Form
We will issue a Customer Quote Form to you for the supply of a Product subject to the terms and conditions set out in the Customer Quote Form and this document.
1.2 Request the Product
(a) You may request supply of the Product on the terms and conditions set out in the Customer Quote Form and this document in accordance with the directions set out in the Customer Quote Form.
(b) We may accept or reject your request for the supply of a Product in our absolute discretion. If we accept your request, we will notify you of our acceptance in accordance with the procedure set out in the Customer Quote Form.
We will refer to the agreement between us and you created by the Customer Quote Form and these terms and conditions as “this Agreement” and, save for any terms implied under law which cannot be excluded, this Agreement constitutes the entire agreement between us and you in relation to the Product. Definitions used in this Agreement appear in clause 11.
2. SALE OF THE PRODUCT
2.1 Purchase of the Product
You agree to purchase, and we agree to sell you, the Product in accordance with this
2.2 Ownership and Risk
(a) Risk in the Product will pass to you immediately when they arrive at the Property.
(b) Ownership of the Product will only pass to you when you have paid us the Purchase Price in full in accordance with this Agreement and until then you only have a right to possession of the product. You must not sell, transfer, hire, lease, dispose of or part with possession of the Product to any person without our prior written consent until you have paid for the Product in full.
3. PURCHASE PRICE
3.1 Payment terms
You must pay the Purchase Price to us as follows:
(a) the Deposit is due and payable on the Date of this Agreement or such other date as set out in the Customer Quote Form; and
(b) unless otherwise stated on the Customer Quote Form, the balance of the Purchase Price (being the Purchase Price less the amount of the Deposit received by us) must be paid to us on the Installation Date.
3.2 Manner of payment
All payments to us must be made in a manner agreed by us which may include credit card, cash, immediate transfer of funds or cheque. Payments must be made on the due date free from any deductions or set-off.
3.3 Failure to pay
Any payment made by you or on your behalf which is later avoided or reduced (including but not limited to an avoidance or reduction by the application of any law) or otherwise not received by us will be deemed not to discharge our title in the Product or your indebtedness to us.
Unless otherwise stated on the Customer Quote Form, the Purchase Price is exclusive of any applicable GST.
Where there is a delay in making any payment to us as required by this Agreement you will pay interest on the outstanding amount at a rate equal to 1% above the Cash Rate published by the Reserve Bank of Australia from and including the day after payment is due until (but excluding) the day the payment is received by us.
Any and all expenses, costs and disbursements incurred by us in recovering or seeking to recover any outstanding monies due from you including (without limitation) debt collection agency fees and solicitors costs, shall be payable by you to us on demand.
3.7 Order of payments
Any payments received by us paid by you or on your behalf will be applied as follows:
(a) firstly, against any recovery costs payable in accordance with clause 3.6;
(b) secondly, against any fee payable for our attendance at the Property pursuant to clause 5.3(d)(2);
(c) thirdly, against all costs and/or expenses incurred or payable by us in relation to any requirement under the PPS Law;
(d) fourthly, against any interest accrued
4. OWNERSHIP OF THE PROPERTY
You warrant (promise) to us that you are the sole or joint owner of the Property and/or are authorised by the owner of the Property (or, if there are more than one owner, each owner other than you) to enter into this Agreement and, if requested by us to do so, you will provide us with evidence of this fact prior to the Installation Date.
This clause 5 only applies in the event that we are Installing the Product. If we are not installing the Product then you are responsible for Installation and we accept no responsibility or liability for the Product once you have purchased it.
5.1 Preparing for Installation
Before the Product can be Installed, you must, at your own cost ensure that the area where the Product is to be Installed accommodates the Product.
5.2 No liability for damage during Installation
(a) We (and our approved contractors or agents) endeavour to take reasonable care to avoid and/or limit damage to the area where the Product is to be Installed; however, on occasion it is unavoidable.
(b) We will not be liable for and you release us from any liability for any loss, damage, expense or claim relating to the Installation of the Product.
5.3 Installation Date
(a) Subject to your availability and you confirming to us that any tasks required to be undertaken by you before the Installation Date have been completed, we will
endeavour to Install the Product within 30 days of the Date of this Agreement.
(b) We will advise you as soon as reasonably practicable after the Date of this Agreement of the Installation Date. Unless you agree to shorter notice, we will give you not less than 5 days’ notice of the Installation Date.
(c) We will attend the Property on the Installation Date at any time between 7am and 6 pm to Install the Product. Although we may advise an approximate time on the Installation Date at which we will attend the Property, such time is an estimate only and we may attend the Property at any time from 7am until 4 pm.
(d) You are required to be available at the Property on the Installation Date. If you are not at the Property when we attend the Property on the Installation Date, we may, without limitation:
(1) not install the Product on the Installation Date; and
(2) charge you a fee of $200 for our attendance at the Property on the Installation Date which must be paid by you to us on demand.
(e) If we are unable to attend the Property or complete the Installation on the Installation Date notified to you pursuant to this clause for any reason beyond our reasonable control (including but not limited to inclement weather), we will notify you and nominate an alternate Installation Date.
(f) You acknowledge and agree that we will not liable for and you release us from any liability in respect of any loss, damage, claim or expense that you may suffer arising out of or contributed to by any nomination by us of or any delay of the Installation Date.
On the Installation Date you must:
(a) be present at the Property and, if reasonably requested by us, remain there while the Installation is being carried out;
(b) provide the Installer and us with access to the Property for the purposes of Installing the Product; and
(c) ensure there is sufficient access to carry out the Installation including ensuring (without limitation) that there is clear access to the proposed location for the Product.
5.5 Removal of objects
You are responsible for removing any trees, plants and any other objects that may interfere with the use of the Product or damage the Product.
5.6 Take further steps as we request
You agree to promptly and at your cost sign any documents or take any other steps that we may reasonably require in order to permit or facilitate the Installation of the Product.
5.7 Your responsibility to monitor
It is your responsibility to monitor the Product and to notify us within 90 days of the Installation Date if there are any issues with the Product. We will not accept any claims regarding the Product that arise more than 90 days after the Installation Date unless otherwise specified in this Agreement.
6.1 Warranty Statement
This clause 6 sets out our express warranties in relation to the Product (Warranties) including details of what you must do to make a warranty claim and what we will do in the event of a
6.2 Australian Consumer Law
(a) Our Product also comes with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Product repaired or replaced if the Product fails to be of acceptable quality and the failure does not amount to a major failure.
(b) In some circumstances, we may be deemed to be the manufacturer of the Product where the Product has been imported into Australia by us or on our behalf and, at the time of importation, the manufacturer of the Product does not have a place of business in Australia. In these circumstances, this warranty statement sets out the Warranties provided by us both as the supplier and the manufacturer of the Product.
6.3 Limitation of warranty
Subject to this clause 6 and any warranties which are implied by law and cannot otherwise be excluded, we exclude all other warranties, conditions or liability in relation to the manufacture, sale or supply of the Product and its Installation and we will not be liable for any claim for direct, indirect or consequential loss or damage arising out of or contributed to by the manufacture, sale or supply of the Product and its Installation.
6.4 Repair or replacement
Subject to this clause 6, to the extent that our liability cannot be excluded, our liability shall be limited to, in our sole discretion, either repairing the defective Product or part of the Product or replacing it with the same Product (or part of the Product) or a comparable product.
6.5 Warranty period
We provide the Warranties for the warranty periods set out below (Warranty Period):
(a) Product 8 years
(b) Workmanship of the Installation of the Product 12 months
The Warranty Period for the Product commences on the date the Product is delivered to the Property. The Warranty Period for Workmanship commences on the date the relevant Installation occurs.
6.6 Warranties in relation to Product
We warrant the Product against ultraviolet degradation during the Warranty Period due to a defect or fault with the Product.
6.7 Warranties in relation to Workmanship
We warrant that that the Product Installed by us or our agents will not be defective during the Warranty Period as a result of incorrect or faulty workmanship in the Installation of the Product which is attributable to us or our agents.
6.8 When will a Product be defective
A Product will be defective when the Product has a defect or fault up to 40% of the total size which prevents the Product from performing its usual function. However, the Product will not be considered to be defective in the following circumstances:
(a) the Product shrinks; or
(b) you change your mind or make an error in choosing or cutting the Product.
6.9 When is a defect or fault attributable to us or our agents
We will only be liable under these Warranties if the reason that the Product is defective is attributable to us or our agents.
The following defects or faults are examples of defects or faults which will not be attributable to us or our agents:
(a) an event occurs following Installation which is outside of our control. For example, this would include where the Product is damaged by weather conditions (excluding ultraviolet degradation if it occurs during the Warranty Period);
(b) the fault, defect or damage is caused by or contributed to by any action taken by a party other than us or our agents. For example, if you or a tradesperson causes damage to the Product while undertaking other tasks or works;
(c) the fault, defect or damage is caused by or contributed to by the installation, alteration or repair of the Product by any person other than us or our agents. For example, an
improper design or failure of the sub-base, incorrect installation or an incorrect subbase, the use of fill-in products of an incorrect level or grade, if installation, including cutting and joining the Product, occurs in temperatures above 30 degrees Celsius;
(d) the fault, defect or damage is caused by normal wear and tear;
(e) the fault, defect or damage is caused by or contributed to by intentional or accidental misuse, abuse, neglect or improper maintenance or use of the Product or a failure to comply with the directions and recommendations of us or our agents in relation to the use and maintenance of the Product. For example:
(1) improper cleaning methods;
(2) the use of inappropriate sports equipment or footwear;
(3) the use of incorrect pesticides, chemicals or herbicides;
(4) effect by reflective surfaces for example steel fence Colorbond fence;
(5) cuts or burns
(6) vandalism to the Product; or
(f) damage caused as a result of the delay in rectifying a fault or defect where the fault or defect was not reported to us within the time periods specified in this warranty statement or if the Product is used after we recommend that use be discontinued.
6.10 No transfer of Warranties
These Warranties are given by us to the person that purchases the Product from us. The warranty holder may not transfer these Warranties to another party, regardless of whether the Product remains Installed in its original location.
6.11 How to make a Warranty claim
(a) Report the problem
(1) If your Product is defective you must:
(A) not attempt to repair or alter the Product yourself; and
(B) immediately contact us or in any event contact us within 90 days of the date you received the Product:
Address: 5/45 Truganina Road Malaga
(2) When contacting us, please provide the following information:
(A) details so that we may identify the Product including, where applicable, receipt number, model code and location of Installation;
(B) details of why the Product is defective.
(3) You must report any fault, defect or damage to the Product or any suspected fault, defect or damage to the Product to us as soon as possible and, in any event, not later than the earlier of:
(A) 30 days after you become aware of any fault, defect or damage to the Product or you suspected that there was a fault, defect or damage to the Product; or
(B) 30 days after a reasonable person would have become aware of any fault, defect or damage to the Product or suspected that there was a fault, defect or damage to the Product, provided that such notification must occur within 90 days of receipt of the Product, unless the defect is as a result of ultraviolet degradation in which case you have 7 years from the date of receipt of the Product.
(4) If you do not notify us of your Warranty claim in accordance with the requirements set out in this clause 6, we will not be required to investigate the Warranty claim or undertake any works to repair or replace the Product.
(b) Investigate the claim
On receiving details of a claim, we will first contact you by telephone to discuss the matter. If we cannot resolve the matter by telephone, we will arrange a time with you to inspect the Product. Where possible, and subject to your availability, we will inspect the Product within 30 days of receiving details of your Warranty claim. If requested by us, you must provide access to the Product for inspection and permit us to undertake such enquiries or tests as reasonably required to determine whether the Product is defective.
(c) Determine whether we accept the claim
We will inform you in writing within 7 days of completing our investigation whether we accept the Warranty claim. If we accept the Warranty claim, we will also confirm what steps we intend to take to resolve the Warranty claim (Letter of Determination).
You will be deemed to accept our determination in relation to whether we accept the Warranty claim and any proposed method of rectifying the Product as set out in the Letter of Determination unless you send a written notice of dispute to us within 7 days of the date of the Letter of Determination. The written notice of dispute should include details as to why you dispute the Letter of Determination and be sent to us.
Within 7 days of receipt of a notice of dispute, we will contact you to discuss the Warranty claim and will consider any additional information you put forward in relation to the Warranty claim. After speaking with you and considering such information, we shall issue a further written notice either confirming our initial determination or amending the Letter of Determination.
(d) Resolve the claim
If we accept the Warranty claim we will take such steps as we consider reasonable to rectify the defect in the Product, taking into consideration the age of the Product and the effect of normal wear and tear (Warranty Works).
These Warranty Works may include the following in our absolute discretion:
(1) we or our agents repairing the Product using new or reconditioned parts; or
(2) we or our agents replacing the whole or part of the Product using new or reconditioned parts.
You must provide us and our agents with access to the Product and undertake such other actions as we may require in order to permit us to undertake the Warranty Works including, if required by us, being present at the time at which any Warranty Works are carried out.
6.12 Spare or replacement parts and facilities for repair
We provide no guarantee that:
(a) spare or replacement parts for a particular model or brand of Product will be available;
(b) facilities to repair a particular model or brand of Product will be available; or
(c) repair, replacement or installation works will be undertaken by a particular agent, employee or contractor of ours.
When undertaking any Warranty Works requiring the replacement of Product, we reserve the right to utilise such brand and model of Product as we determine in our absolute discretion.
Any items removed as part of the Warranty Works will become our property.
6.13 Warranty Period on Warranty Works
Any Warranty Works will have a Warranty Period equal to the Warranty Period remaining on the original Product and Workmanship.
6.14 Costs of a Warranty claim and payment of damages
(a) Initial costs
Any costs or expenses incurred by you in informing us of a Warranty claim will be borne by and paid for by you.
(b) Costs of us investigating the claim
If we accept the Warranty claim, all costs of investigating the claim will be borne by and paid for by us.
If we do not accept the Warranty claim, all costs of investigating the claim will be borne by and paid for by you. This includes our costs of inspecting the Product, charged at our usual hourly rate.
(c) Costs of disputing a Letter of Determination
If you issue a notice of dispute, all costs associated with issuing and investigating the notice shall be borne by and paid for by:
(1) you, if we issue a further written notice confirming its initial determination; or
(2) us, if we issue a further written notice amending the Letter of Determination.
(d) Costs of Warranty Works
If we accept the Warranty claim, we will bear the costs of the Product and you will be responsible for paying any labour costs associated with the Warranty Works. If we do not accept the Warranty claim, all costs of any works undertaken to repair or replace the Product will be borne by and paid for by you.
6.15 What costs may be claimed
If we are required to bear the costs of investigating a Warranty claim, issuing and investigating a notice of dispute or the costs of Warranty Works, you may request us to reimburse you your direct expenses by providing us with a copy of the invoice for the expense together with a tax receipt confirming that you have paid the invoice in full. Not with standing any other provision of this warranty statement, the total amount which you may claim against us in relation to costs, expenses, losses or damages is limited to $30.
6.16 What costs may not be claimed
We are not liable to pay or reimburse you any amounts relating to any other loss or damage, including for any direct, indirect or consequential loss or damage, other than as set out in this clause 6. We will also not be liable to compensate you for any loss of opportunity, loss of profit or loss of income (including loss of wages).
7.1 Termination by us
We may terminate this Agreement by notice in writing to you and:
(a) refund the Deposit to you, less any costs we reasonably incur in respect of the Product or its Installation prior to such termination or any other amounts due from you to us which have not been paid, if:
(1) as a result of a cause beyond our reasonable control, we determine that we are or will be unable to comply with our obligations under this Agreement, including but not limited to if we are unable to obtain sufficient stock of the Product (including relevant components) or are unable to source sufficient workforce to complete the Installation; or
(2) we believe that Installation of the Product at the Property is unsafe or unsuitable, save where the lack of safety or suitability is caused by or contributed to by your breach of this Agreement;
(b) forfeit the Deposit which will be retained by us for our sole use, if:
(1) we have attended the Property at the time fixed for Installation twice and you are not there on either occasion,
(2) you have not paid any amount payable by you to us on the date that such payment is due;
(3) you suffer an insolvency event including but not limited to winding up, liquidation, provisional liquidation, bankruptcy, dissolution, the appointment of an administrator, controller, trustee, provisional liquidator or liquidator over your assets or it being determined or deemed that you cannot pay your debts as and when due;
(4) you cease to own or occupy the Property or if the owners or occupiers of the Property indicate or demonstrate an intention not to be bound by or comply with the terms of this Agreement; or
(5) you materially breach any term of this Agreement and do not remedy the breach within 5 Business Days of us giving you written notice of the breach.
7.2 Time for Refunding Amounts
If we are required to refund the Deposit to you, we will refund the Deposit received by us, less any costs we reasonably incur in respect of the Product or its Installation prior to the termination of this Agreement or any other amounts due from you to us which have not been paid, within 30 days after the date of termination.
7.3 Limitation of our liability on termination
Subject to clause 6 and any conditions implied by law that cannot be excluded:
(a) you agree and acknowledge that your sole and complete remedy for any termination of this Agreement pursuant to clause 7.1(a) is the refund of the Deposit pursuant to clause 7.2.
(b) you release and discharge us from:
(1) all claims and demands (including court costs and legal fees reasonably incurred); and
(2) any loss or damage whatsoever and whenever caused including but not limited to death or injury to any person, damage or loss to any property or financial loss; arising directly or indirectly from or as a consequence of the Installation and use of the Product; and
(c) you agree that we will have no responsibility or liability for special, indirect or consequential loss or damage in any circumstances, including as a result of any breach of this Agreement by us.
7.4 Your Indemnity
You indemnify and hold us harmless against all losses, damages, liabilities, claims and expenses (including but not limited to legal costs and defence or settlement costs) that are caused by or contributed to by:
(a) your provision of false, inaccurate or misleading information relating to the Property;
(b) any personal injury or death of any person resulting from or contributed to by your breach of this Agreement, your negligence or the condition of the Property or any item located on or connected to the Property; and
(c) any loss or damage to any item of property resulting from or contributed to by your breach of this Agreement, your negligence or the condition of the Property or any item located on or connected to the Property.
8.1 Grant security interest
This agreement is a security agreement and our interest in the Product is a security interest. You consent to us registering our security interest on the PPS Register (in any manner we consider appropriate) and you agree to provide us with all assistance reasonably required to facilitate registration.
8.2 No third party interests
Until such time as title to the Product has passed to you as contemplated by clause 2.2(b), you agree not to in any way assign, charge, lease or otherwise deal with or create a security interest over the Product.
9. PERSONAL INFORMATION AND PRIVACY
9.1 Personal information
You agree that we can use the information you provide:
(1) to supply goods and services to you under this Agreement;
(2) to fulfil our obligations under this Agreement; and
(3) to provide you with information about our business and services, and the business and services of our contractors and agents.
(b) We may disclose the information you provide:
(1) to our related bodies corporate, agents and contractors (such as installers, and data processing analysts);
(2) to any manufacturer or supplier of any of the goods provided under this Agreement;
(3) to debt collection agencies and credit reporting agencies; and
(4) as authorised by law.
9.2 Consent transfer of personal information
(a) Any personal information provided to us may be transferred to, and stored at, a destination outside Australia, including but not limited to China where we have entered into contractual arrangements with third party providers to assist us with providing our goods and services to you.
(b) Personal information may also be processed by staff or by other third parties operating outside Australia who work for us or for one of our suppliers, manufacturer’s agents, partners or related companies.
9.3 Privacy protection obligations
(a) By submitting your personal information to us, you expressly agree and consent to the disclosure, transfer, storing or processing of your personal information outside of Australia. In providing this consent you understand and acknowledge that countries outside Australia do not always have the same privacy protection obligations as Australia in relation to personal information.
(c) If you do not agree to the transfer of your personal information outside Australia, please call us on 0434 551 016 or write to us at 11/184 RALEIGH ST, CARLISLE WA 6101.
(d) If you provide us with personal information about another person (such as an additional account holder), please make sure that you tell that person about this privacy statement. To access the personal information that we hold about you call us on 0434 551 016 or write to us at 11/184 RALEIGH ST, CARLISLE WA 6101.
Notices sent to you from us, or from us to you, must be in writing. Notices must be addressed to a party as set out in the Customer Quote Form (or any alternative details notified) and provided to the other party:
(a) personally by hand delivery and in such case will be considered to be received at the time of delivery;
(b) by pre-paid post and will be considered to be received on the second business day after the date of posting;
(c) by facsimile and will be considered to be received at the local time (in the place of receipt of that fax) which equates to the time at which that fax is sent as shown on the transmission report which is produced by the machine from which that fax is sent and which confirms transmission of that fax in its entirety; or
(d) by email and will be considered to be received at the local time (in the place of receipt of that email) which equates to the time at which that email is sent as shown in the delivery receipt.
Notwithstanding clause 10.1, any notice given on a day that is not a Business Day or after 5pm on a Business Day will be deemed to be given at 9am on the next Business Day.
10.2 No Assignment
Unless we give you our prior written consent, you must not transfer, assign or otherwise dispose of any of your rights or obligations under this Agreement. We can assign or novate this Agreement without notice to you to any person that we believe has reasonable commercial and technical capability to perform our obligations under this Agreement.
10.3 Waiver of Rights
If we do not enforce any right or delay in enforcing any right under this Agreement this must not be construed as a waiver of our rights under this Agreement.
10.4 Governing Law
This agreement is governed by the laws of the State or Territory in which the Property is situated.
10.5 Amendments to this Agreement
A variation of any term of this Agreement must be in writing and signed by the parties.
10.6 Effect of Invalid Terms
If any term of the contract is invalid or unenforceable it can be severed from the contract without affecting the enforceability of other contract terms.
11. DEFINITIONS AND INTERPRETATION
The meanings of the terms used in this Agreement are set out below:
Agreement means the agreement between you and us, including these terms and conditions and the Customer Quote Form.
Business Day means any day except a Saturday, Sunday or public holiday in the place which the Property is situated.
Customer Quote Form means the customer quotation or order form incorporating these terms and conditions.
Date of this Agreement means the date on which we accept your request for the supply of a Product.
Deposit means the amount you must pay as a security deposit, as set out in the Customer Quote Form.
Installation Date means the date which we notify you that we will Install the Product. GST means goods and services tax payable under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Installation means the services and works required to:
(a) conduct pre-installation site inspections at the Installation Property;
(b) install the Product in accordance with the manufacturer’s specifications;
(c) test the Product to ensure that it is working in accordance with the manufacturer’s specifications; and
(d) commission the Product so that it is operational, in accordance with this Agreement.
Installer means our contractor or agent who will carry out the Installation.
PPSA means the Personal Properties Securities Act 2009 (Cth) as amended from time to time.
PPSA Law means the PPSA together with any subsidiary legislation or regulations made under the PPSA and any amendment to a PPSA Law from time to time.
Product means the synthetic grass that is described in the Customer Quote Form.
Property means the property at which the Product will be installed, located at the installation address set out in the Customer Quote Form.
Purchase Price means the price identified as such on the Customer Quote Form, as payable in accordance with this Agreement.
Warranty Statement means our warranty in relation to the Product and its Installation as varied from time to time, a copy of which is available on our website at https://jayssyntheticgrass.com.au.
we, us or Jay’s means Jay’s Synthetic Grass (ACN 601 285 821) together with our officers, agents, contractors, employees and Installers.
you, your or Customer means the person, business or company named as the “Customer” on the Customer Quote Form.