Trading Terms

Important note to Customers:

Shade Australia Pty Ltd and it's satellite sites operate and accept orders on the basis of these standard trading terms.  By placing an order with Shade Australia Pty Ltd or any of its satellite sites you are accepting these terms and agreeing to be bound to and by them.  If you have questions regarding any point or clause contained here you should contact us directly. We fulfill all orders and services based on the assumption that you have read, understood and accepted these terms of trade. 

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ORDERS ARE ACCEPTED ONLY ON THE FOLLOWING TERMS AND CONDITIONS UNLESS OTHERWISE
AGREED IN WRITING BY SHADE AUSTRALIA PTY LTD THESE TERMS AND CONDITIONS APPLY TO
ALL SATELLITE SITES OWNED AND OPERATED BY SHADE AUSTRALIA.


1 DEFINITIONS
Where the context permits:
Buyer means the person making an Order, pursuant to clause 2.1.
Conditions means these general conditions and any other condition agreed in writing by Shade Australia
and the Buyer.


Contract means the agreement formed by the offer constituted by the Order and the acceptance of the
Order by Shade Australia.


Contract Price means the price for Goods and/or Services specified in the Contract (including GST),
including all matters that could reasonably be expected to be necessary to provide the Goods and/or
Services. document includes facsimile and email transmission.
Federal law means the laws of the Commonwealth of Australia.
Goods means the goods, equipment and other material agreed to be sold and purchased pursuant to the
Contract and includes, but is not limited to, shad
es and umbrellas.
intellectual property right includes any patent, design, copyright, or right of any nature in respect of
ideas, concepts, inventions, methods of manufacture or any process.
Order means the order by the Buyer, made pursuant to clause 2.1.
person includes body corporate and unincorporated association.
quotation means a written quotation by Shade Australia to sell Goods and/or to provide Services. All
quotations assume unfettered site access, favorable sub-soil conditions and provision by the Buyer to
Shade Australia of all necessary site and utility service plans reasonably required by Shade Australia
prior to the provision of Services.


Services means any services, with respect to the installation of the Goods, agreed to be provided by
Shade Australia and paid for by the Buyer pursuant to the Contract.
State law means the law of New South Wales and any other State or Territory of Australia which is
applicable to the Contract.
Shade Australia means Shade Australia Pty Limited ABN 86 065 663 676.


2 ORDERS AND ACCEPTANCES
2.1 A quotation is a revocable offer by Shade Australia to sell the Goods and/or to provide the Services on
the terms of the quotation. Shade Australia reserves the right to revoke or revise the quotation at any
time before the Buyer makes an Order. Buyers may make an Order by:
(a) partial or complete payment to Shade Australia of the Contract Price;
(b) signing a quotation and returning it to Shade Australia; or
(c) by any other method accepted by Shade Australia.


2.2 Shade Australia must sell and deliver the Goods and/or provide the Services to the Buyer and the
Buyer must buy and pay for the Goods and/or Services from Shade Australia, pursuant to the
Contract.


2.3 The Buyer must pay all applicable goods and services taxes, industry levies and other taxes, duties
and imposts in respect of the sale or delivery of the Goods (whether in Australia or any other
jurisdiction).


3 PAYMENT
3.1 The Buyer must pay the Contract Price, pursuant to the terms of payment specified in the quotation.
If the quotation does not specify terms of payment, the Buyer must pay the Contract Price on receipt
of the Goods and completion of the Services.


3.2 All custom made Goods require part payment in advance by the Buyer, as stated in the quotation
with balance paid in full on the day of completion of the job or upon delivery.


3.3 If the Buyer does not pay Shade Australia on the due date for payment or breaches any term or
condition of the Contract or a resolution is passed or proposed or an application is presented for the
winding up of the Buyer, or an administrator, receiver and/or manager is appointed in respect of the
Buyer or the Buyer is or becomes (or is taken by any law to be) insolvent or makes or proposes to
make any arrangement with its creditors or execution is levied on any part of the Buyer’s assets,
Shade Australia may (at its option and with or without notice to the Buyer) do any or all of the
following without prejudice to any other rights Shade Australia has under the Contract:
(a) withhold deliveries of the Goods (whether or not in transit) and/or provision of Services;
(b) immediately recover possession of and/or resell any Goods, title to which is retained pursuant to
clause 5.1, or other goods held by the Buyer on trust for Shade Australia pursuant to clause 5.2 and
for this purpose enter on the Buyer’s premises or any other place where the Goods or other goods
may be situated; and
(c) terminate the Contract and/or any other contracts between Shade Australia and the Buyer.


3.4 The Buyer must, on demand by Shade Australia, pay to Shade Australia default interest at the rate of
[15]% per annum on any moneys due but unpaid. Interest is calculated on a daily basis from the due
date for payment until the actual date of payment and compounds on the last day of each month.


4 DELIVERY AND INSTALLATION
4.1 Unless otherwise agreed to by the parties in writing:
(a) delivery of the Goods and/or provision of the Services is deemed to be effected in the manner
specified in the Contract;
(b) if not specified in the Contract, delivery of the Goods and/or provision of the Services may be effected
in the manner chosen by Shade Australia;
(c) Shade Australia's responsibility for delivery and/or provision ceases when the Goods and/or Services
are delivered and/or provided in the manner contemplated by clauses 4.1(a) or (b) (as applicable).


4.2 Risk in the Goods passes to the Buyer on delivery or on deemed delivery of the Goods as provided in
the Contract, even though title remains in Shade Australia.


4.3 The Buyer or its representative or agent must sign the delivery advice presented by Shade Australia
or its representative or agent. If the Buyer or its representative or agent is unavailable to sign or does
not sign the delivery advice, Shade Australia’s records are conclusive evidence of delivery at the time
and place shown in Shade Australia’s records.


4.4 When the Goods are to be delivered by installments, each installment is deemed to be sold under a
separate Contract. If Shade Australia fails to deliver an installment within the time stated on the
Contract or to deliver at all, the Buyer is not be entitled to repudiate the Contract in respect of any
other installments remaining to be delivered.


4.5 Installation of all product is carried out by subcontractors unless otherwise advised. In the event of a
warranty or maintenance claim resulting from any aspect of installation Shade Australia will
coordinate resolution, however, responsibility lies with the subcontractor.


4.6 Services are complete when provided in accordance with the Contract and the engineering certificate
(if required by the Contract).


4.7 The Services may require revision without notice to the Buyer if, during the provision of the Services,
assumptions in the quotation prove incorrect or the Buyer fails to fulfill its warranties under clause 8.
The Buyer is liable to pay Shade Australia for additional Services provided at Shade Australia’s
standard hourly rate.


5 TITLE
5.1 Legal and beneficial title in the Goods remains in Shade Australia until payment in full for the Goods
has been received by Shade Australia in immediately available funds.
5.2 Until payment in full for the Goods is received by Shade Australia;
(a) the Buyer must hold the Goods on trust for Shade Australia;
(b) if the Buyer sells the Goods, the Buyer must hold its rights in respect of the sale proceeds on trust for
Shade Australia; and
(c) Shade Australia constitutes a separate class of the Buyer’s creditors for all purposes.


6 INTELLECTUAL PROPERTY
6.1 The Buyer does not obtain any rights in any intellectual property right used by Shade Australia in
manufacturing the Goods and/or providing the Services.


7 MAINTENANCE
7.1 Unless Shade Australia provides the quotation to the Buyer with an engineering certificate that
provides otherwise, all Goods installed must be considered semi-permanent in nature and should be
lowered or removed from installation in high winds to prevent damage to the Goods or existing
structures and to prevent personal injury. Any failure to do so invalidates any warranty provided to
the Buyer pursuant to clause 9 and limits any liability of Shade Australia to the Buyer and any other
person.


8 BUYER WARRANTY
8.1 The Buyer warrants that:
(a) it has obtained all necessary engineering certification, consents, permits, licences and utility service
plans necessary for Shade Australia to deliver the Goods and/or provide the Services in the manner
contemplated by clauses 4.1(a) or (b) (as applicable);
(b) it has provided to Shade Australia with complete and correct underground utility service plans
relevant to provision of the Services; and
(c) it has undertaken a proper assessment, including seeking professional advice, of the suitability of
surfaces and/or existing structures to which the Goods may be affixed.


8.2 The Buyer acknowledges that:
(a) Shade Australia relies on the warranties in clause 8.1;
(b) Shade Australia is not liable for any damage, loss or expense, whether direct or indirect, arising out
of provision of the Goods or Services, where the Buyer breaches any warranties in clause 8.1; and
(c) it indemnifies Shade Australia for any claims arising out of provision of the Goods or Services, where
the Buyer breaches any warranties in clause 8.1


8.3 Shade Australia can assist the Buyer to fulfil its requirements under clause 8, however additional
charges will apply.


9 SHADE AUSTRALIA WARRANTY TERMS
9.1 Shade Australia extends to its customers the manufacturers/importers warranties on its range of
products. In the event of a valid warranty claim it is incumbent upon the customer to organise at their
cost to ship the goods to Shade Australia premises (or other nominated address) whereupon Shade
Australia will organise the goods to be repaired or at the manufacturer/importers discretion, replaced
and returned to the customer. The customer will be responsible for all costs associated with freight to
have their goods returned. Some Federal laws and State laws imply terms and conditions into the
Contract that are incapable of exclusion. All terms and conditions that are capable of exclusion and
that are not expressly contained in the Contract are expressly excluded from the Contract. Shade


Australia warrants that:
(a) on payment in full it will give good title in the Goods to the Buyer;
(b) on delivery, the Goods will be free from defects in material and workmanship which make the Goods
of unmerchantable quality as that term is construed by suppliers of goods of the description of the
Goods;
(c) on delivery, the Goods will conform to the description in the quotation;
(d) the Services will be provided in a proper and workmanlike manner, pursuant to the quotation; and
(e) it will comply with all applicable laws and standards and the requirements of all statutory authorities
relating to provision of the Goods and/or Services,
PROVIDED THAT this warranty does not apply if:
(f) the Goods are incorrectly used or are abused in use including, failure to lower or remove the Goods
from installation in high winds; and
(g) The Buyer carries out the installation of the item themselves which voids any warranty
(h) which would have extended should Shade Australia contractors have carried out the installation.
Furthermore, this exemption extends to any resultant damage to either the item(s) itself, surrounding
property or injury to any person(s) which may result.
(i) Warranty claims are voided if products are used in a manner contrary to manufacturers/importers
stated terms of guarantee.
(j) Shade Australia is providing the Services pursuant to an engineering certificate issued by a third
party to the Buyer or Shade Australia and the Goods and/or Services comply with the specifications
in the engineering certificate.


9.2 Warranty does not extend to product or property damaged as a result of unusually severe weather
conditions including; hail-storms, snow-storms, strong winds and heavy rain.


9.3 This warranty expires in respect of all defects appearing in the Goods 3 months or more after delivery of
the Goods unless otherwise specifically stated. Shade Australia is not liable for the costs of return or
redeliver of Goods. Shade Australia is not liable for costs associated with dismantling and/or re installation
which will be charged to the customer at standard rates.


9.4 If the Buyer claims that any of the Goods and/or Services do not conform to the description shown in the
Contract, have been short delivered or are defective or there is a breach of any term or condition of the
Contract in respect of the Goods and/or Services:


(a) the Buyer must give written notice to Shade Australia within 7 days after delivery of the Goods and/or
provision of the Services and preserve the Goods intact and available for inspection by Shade
Australia’s representatives;


(b) if the claims of the Buyer are correct and either the Goods and/or Services are not of a kind ordinarily
acquired for personal, domestic or household use or consumption or the Buyer is not a consumer as
that term is defined in the Trade Practices Act or any corresponding and applicable State laws, the
remedies of the Buyer are limited to such of the following as Shade Australia may elect in its absolute
discretion:
(i) replacement of the Goods or supply of goods equivalent to the Goods; or
(ii) payment of the cost of replacing the Goods, and
(iii) providing the Services again; and
(c) Shade Australia will not be obliged to accept return of the Goods unless required by the Contract or
under Federal law or State law.


9.5 Shade Australia is not liable for any consequential, special or contingent damages, losses or expenses in
connection with Shade Australia’s failure to perform any obligation under the Contract or use of the
Goods unless such damages, losses or expenses are incapable of exclusion under Federal law or State
law.


10 MISCELLANEOUS
10.1 Shade Australia is not liable for any failure to perform or comply with any term or condition of the
Contract if that failure arises from any circumstances beyond Shade Australia’s reasonable control,
including, without limitation, assumptions in the quotation, lockouts, strikes and other labour disturbances
(the settlement of which is at Shade Australia’s absolute discretion if it is a party), acts of God or the
public enemy, piracy, war, terrorism, riot, civil commotion, acts of government agencies, earthquake,
storm, tempest, fire, lightning, unavailability of insurance at reasonable cost and non-delivery of materials
from Shade Australia’s usual sources of supply.


10.2 The Contract is governed by the laws of NSW,Australia. The parties submit to the exclusive jurisdiction
of the courts of New South Wales.


10.3 A waiver by Shade Australia of any provision or breach by the Buyer of any provision of the Contract
cannot be construed as a waiver of any other provision or breach of any other provision or subsequent
breach of the same or any other provision of the Contract.


10.4 Errors in the Contract or any invoice must be corrected and any necessary adjustments made between
the parties.


10.5 Should any provision of the Contract be or become unenforceable or void in any jurisdiction either in
whole or part for any reason, that provision is deemed to be deleted from the Contract in respect of that
jurisdiction alone without in any way affecting the validity or enforceability of any other provision or that
provision in any other jurisdiction. In such circumstances, Shade Australia may substitute another place
for performance of its obligations for the purpose of making the Contract valid and enforceable.


10.6 Any obligation imposed on more than one person, binds all combinations of them jointly and each of
them severally.


10.7 The Contract is not a sale by sample, even if any materials or things are exhibited or inspected by the
Buyer.


10.8 No party will be obliged to agree to any form of arbitration of any dispute in connection with the Contract.


10.9 The Conditions and Contract cannot be varied unless agreed in writing by every party.