T E R M S & C O N D I T I O N S

Dunbrae Pty Ltd trading as

GLOBAL FACILITIES MAINTENANCE AND GLOBAL FOOD EQUIPMENT

TERMS AND CONDITIONS OF SERVICE

Head Office Address:

16 Prime Drive. Seven Hill. NSW 2147

Issue date: October 2020

1. INTERPRETATION

In these terms and conditions, unless the content otherwise specifies:

(a) ‘Account Customer’ is a Customer who has agreed terms with the Company;

(b) ‘Business Hours’ are the Company’s standard business hours of 07:00 – 17:00, Monday to Friday, excluding Public Holidays;

(d) ‘the Company’ means the legal entity, Dunbrae Pty Ltd and its related and subsidiary companies;

(e) ‘the Customer/s’ means a party (including its successors, personal representatives and permitted assigns and legal entities) who has asked for the Company to supply a Service as an account customer with agreed pricing and payment terms or as a COD Customer where money is drawn down on the Customer’s Credit Card before completion and on completion;

(f) ‘Customer’s Credit Card’ means the Customer’s Visa or Mastercard used to pay for the Service;

(g) ‘Job Completion’ is the finalisation of each individual attendance. If parts are required for a further attendance, then payment may be required for Parts needed to complete the Service for a future attendance;

(h) Parts and Other Consumables’:

A ‘Part’ is a component required to complete a Service. All parts must be paid for. If a Part is non-standard it may need to be sourced locally or from overseas before the job can be completed. If a Part is non-standard it may need to be paid for before ordering. Lead times could be affected by importation from overseas
Other Consumables and equipment may include items such as parking, the use of a trailer, truck or lifting equipment, if required, that is chargeable to the Customer;

(i) ‘Payment Processor’ is a service provider who takes the Customer Credit Card details, as entered by the Company initially, and converts them into Token Customer ID ready to be drawn down on completion of Service (without the Company storing the Customer’s Credit Card details;

(j) ‘Service’ means all labour through employees and sub-contractors combined with Parts and Other Consumables incurred in completing the requested Service by the Company to the Customer; and

(k) ‘Token Customer ID’ is a 10-digit number used by the Company to draw down on the Customer’s Credit Card through our Payment Processor on completion of Service. The Token Customer ID can only be used by the Company to draw down on the Customer’s Credit Card. The Token Customer ID cannot be used by any other party and enables the Customer’s Credit Card to be charged without the Customer’s Credit Card details being known to the Company at the time of processing against the Customer’s Credit Card.

2. GENERAL

(a) These terms and conditions are deemed to be incorporated into all contracts (expressed or implied) for the supply of Service to the Customer and supersede all terms and conditions previously issued by the Company. The Company is only prepared to provide a Service upon these terms and conditions, unless their exclusion or modification is agreed to in writing by the Company. Any order placed by the Customer is deemed to be an order incorporating these terms and conditions. Where the Customer places an order for Service which contain terms and conditions different from those herein, subsequent delivery to the Customer shall be deemed to be the counteroffer to supply the Service on these terms and conditions. Such a counteroffer shall be deemed to be accepted by the Customer by acceptance of the Service.

3. CREDIT

(a) the Customer authorises the Company to:

(i) obtain credit reports from credit reporting agencies and other credit providers concerning the Customer’s credit worthiness, credit history and credit capacity for the purpose of assessing the Customer’s credit worthiness;

(ii) disclose reports and information to other credit providers about the Customer’s credit worthiness, credit standing, credit history and credit capacity for the purpose of assessing an application by the Customer for credit and the Customer’s credit worthiness.

4. PRICING AND BILLABLE ITEMS

The Company will process, through the Payment Processor, a charge against the Customer’s Credit Card for the Company’s standard charges and where appropriate additional travel. If on attendance increased charges are assessed as being required, the customer will be advised and the customer’s TokenCustomerID used to process the advised increased charges as defined below.

BUSINESS HOURS

As rates advised

AFTER HOURS

As rates advised

ADDITIONAL TRAVEL

Travel to regional areas (beyond 50KMs from our nearest branch), will incur additional travel costs time (at the advised rates), if we do not have a sub-contractor in that area

INCREASED CHARGES

INCREASED CHARGES If the onsite assessment determines that additional charges will be required the Company will process additional charges prior to works being finalised or on completion using the Token CustomerID established earlier (no further credit card details required). Increased charges will typically consist of labour hours beyond 1 hour and Parts and Other Consumables

5. GOODS AND SERVICES TAX (GST)

(a) All prices quoted are exclusive of GST unless otherwise stated in writing. GST will be added upon invoicing.

6. PAYMENT

(a) For quoted service items over $1,000, for Account Customers (unless agreed otherwise) and COD Customers, the terms of payment are: a deposit of 50% at the time of acceptance of the quote, the remaining 50% payable on completion of Service;

(b) For all other COD service provision not incorporated in 6(a) the terms of payment shall be payment by card before Completion of Service. The Company uses a secure service (the Payment Processor) to store credit card information. The Customer’s card details will be taken prior to the service provision and the card will be charged with the appropriate fees when the service is provided, these include but are not limited to:

(1) Call Out fee;

(2) Labour charges;

(3) Parts;

(4) Parking and other ancillary charges;

(c) Without prejudice to any other rights or remedies of the Company, where any payment is not made on the due date interest at the rate of 4% from time to time shall be payable upon the amount outstanding, calculated from the due date of payment until payment is made in full;

(d) Where the Customer fails to effect payment as required by sub-paragraph (a) hereof the Company may at its discretion and without attracting any liability to the Customer withhold delivery of all other goods and Services for which orders have been placed by the Customer and accepted by the Company;

(e) The Company reserves the right to off-set any amounts owing to a Customer against amounts owed by that Customer before settlement of monies outstanding;

(f) The Company reserves the right to withdraw a credit facility at any time at its sole discretion.

7. QUOTATIONS AND ORDER ACCEPTANCE

(a) Every quotation may be withdrawn or changed at any time until such time the Customer’s order is received and accepted by the Company;

(b) Unless previously withdrawn by the Company, a quotation will be deemed to have lapsed 30 days after the date of issue.

8. ADDITIONAL INFORMATION TO BE PROVIDED WHEN REQUESTING SERVICE

(a) The following information must be provided when requesting Service:

Fault and machine make/brand/serial number;
Contact person and contact telephone number;
Business Name and Site Address;
Confirmation of payment by using the Payment Processor (if the Customer does not have a credit account with Company). If the Customer has not used the their credit card with the Company previously, we will take your credit card details and create Token Customer ID (refer to Clause 1(i)) that will allow the Company to process against the Customer’s Credit Card at a later point. This allows only the Company to process against the Customer’s Credit Card without the Company storing the Customer’s Credit Card details;
Where the Payment Processor has been used previously, the Company will use the Customer’s Payment Processor Token Customer ID on the Customer’s Credit Card and then process against the Customer’s Credit Card on completion of Service.

9. STATUTORY RIGHTS OF THE CUSTOMER

(a) These terms and conditions shall not exclude, limit, restrict or modify the rights, entitlements and remedies conferred upon the Customer or the liabilities imposed upon the Company by any condition or warranty implied by any Commonwealth, State or Territory Act rendering void or prohibiting such exclusion or limitation. Except in so far as any such rights entitlements, remedies and liabilities cannot be excluded or limited, all warranties and conditions in relation to the goods or Services whether expressed or implied by statute, common law or trade custom or usage or otherwise are hereby expressly excluded;

(b) To the maximum extent permitted by law, the Company’s liability to the Customer in connection with the Service is strictly limited to the provisions of these conditions of sale. Any liability on the Company’s part or on the part of its servants or agents for damages, other than liability which is totally excluded by any other provision shall not exceed the cost of the Service.

10. SERVICE TIMING AND COMPLETION

(a) Any times given for Service are an estimate and for guidance only. The Customer shall not be relieved of any obligation to accept or pay for Service by reason of any delay in delivery;

(b) To maximum extent permitted by law, the Company shall not be liable in any way whatsoever for or in respect of any loss or damage however arising out of or in connection with limitation or in relation to any failure to deliver or delay in delivery arising from any circumstances of whatsoever including, without limitation, delay by alterations to the Service or specifications of the goods or Service or any other act of default on the part of the Customer of by fire, food, earthquake, storm, or other natural phenomenon, acts of riot, civil commotion, or any accident or failure or inability to obtain licences or any order direction or any authority or instrumentality;

(c) If the Company determines that it is or may be unable to complete its obligations within a reasonable time or at all, the contract may be terminated by the Company. In the event of termination, the Customer shall have no claim against the Company for any damage, loss, cost or expenses whatsoever;

(d) The Company reserves the right to complete the Service by instalments and each instalment shall be deemed to be sold under a separate contract. Failure of the Company to deliver any instalment shall not entitle the Customer to cancel the balance or the order. If the Customer is in default in respect of any instalments, the Company may elect to treat the default as a breach of contract relating to each other instalment;

(e) Nonstandard parts must be paid for at time of ordering and will not be refunded if the Service is cancelled;

(f) If the equipment is assessed as being non-repairable, uneconomic to repair or the parts are not available the minimum charge or the costs to date will apply.

11. RETENTION OF TITLE

(a) If the Purchaser fails to make full payment for any goods and/or Service supplied by the Company, the Company is entitled to possessions of the parts installed during the Service. The Customer must place those goods at the disposal of the Company and is entitled to enter upon any premises of the Customer and remove the parts installed.

12. INDIRECT LOSS

(a) So far as the law permits, the Company shall be under no liability to the Customer for any loss or damage to persons or property, or loss of property, for the death or injury caused by or arising out of on in connection with any act, matter, or thing (including negligent acts or omissions) done, omitted or permitted to be done by the Company, its servants or agents;

(b) So far as the law permits, the Company shall not be liable to the Customer in any way whatsoever for any indirect or consequential loss, loss of profit or any other economic loss including, without limitation, any loss by reason of delay, defective or faulty materials or, workmanship, negligence or any act, matter of thing done, permitted, or omitted to be done by the Company.

13. WARRANTY

(a) Except for any express warranty given, the Company excludes all conditions, warranties and terms implied by statute, general law or custom, except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void (“Non–excludable Condition”);

(b) The Company accepts no liability for any loss or damage direct or indirect of or to any person or property arising from the Service, or operation of goods including consequential loss or damage arising from any circumstances whatsoever, except under a Non-excludable Condition;

(c) Subject to Clause 14(b) the Company undertakes to repair, place or supply (at the Company’s option) all goods and components thereof supplied by it which the Company in its sole and absolute discretion deems to be defective in materials or workmanship under proper, normal and recommended conditions of use and maintenance;

(d) Defective replacement spare parts will be repaired or re-supplied for a period of three (3) months of the Service. This undertaking applies only to state capitals and major provincial towns. Remote areas are not covered by this commitment and special enquiries should be made;

(e) The Company’s undertaking does not extend to goods and components thereof manufactured either entirely or substantially of glass or similar substances, light globes, infrared or quartz tubes and electrical controls or elements, neither is it extended to include consumable items such as oils, lubricants, cleaning materials and accessory tools;

(f) The Company’s undertakings do not extend to include the repair of damage nor to adjustments to equipment as a result of external influences including but not limited to lightning strikes, electrical distributers, water supply disturbances and drainage faults;

(g) Training of operators is normally conducted during the Service of the equipment. Re-training of existing operators and training of newly assigned operators after the Service is not classified as the Service and may only be carried out on a chargeable basis;

(h) The liability of the Company under this warranty is limited to repair or replacement of defective goods or components. All other costs including, without limitation, cartage, carriage and installation shall be borne by the Customer. Goods or components which fail as a result of operator error, misuse, abuse and inappropriate operation will not be repaired or replaced under warranty;

(i) While the goods are in the custody of the Company for investigation or repair, they shall be at risk of the Customer and no liability shall attach to the Company, its servants or agents for any damaged occasioned to, or loan, of the goods however arising;

(j) To obtain the benefit of this warranty, the Customer must give notice to the Company immediately upon becoming aware of the alleged defect;

(k) Warranty repairs are carried out during the Company’s Business Hours. Repairs may be available at times other than normal warranty hours but will not be treated as warranty and will be subject to call-out fees and hourly charges, including penalty rates where applicable;

(l) If a job is claimed to be a warranty job for goods and Service supplied by the Company the Company must be advised at the time of requesting Service. Warranties for goods supplied by other goods suppliers will in no way be the responsibility of the Company and the Company must be paid by the Customer. The Customer is to claim independently from their supplier.

14. SUBCONTRACTING

(a) The Company reserves the right to sub-contract the service where appropriate.

15. INTELLECTUAL PROPERTY

(a) The provision of Service to the Customer does not confer on the Customer any licence or right under any copyright, patent, design or trademark or any other intellectual property right of the Company;

(b) All drawings and technical specifications furnished by the Company to the Customer are copyright, confidential and supplied for the sole purpose of the particular contract concerned. The Customer shall not communicate any details of the drawing or technical specifications to any third party without the prior written consent of the Company and shall not make any copies of or use the drawing or technical specifications for any purpose other than as expressly authorised by the Company.

16. ASSIGNMENT

(a) The Customer shall not assign any of its rights or obligations hereunder without the prior written consent of the Company.

17. LIEN

(a) In addition to any lien to which the Company may be entitled by statute or common law, the Company shall, in the event of insolvency of the Customer or winding up be entitled to a lien on all property owned by the Customer and in the possession of the Customer at the time of such lien to cover the unpaid price of any goods supplied by the Company to the Customer.

18. WAIVER

(a) Failure by the Company to insist upon strict performance by the Customer of any of these terms and conditions shall not be taken to be a waiver of any rights of the Company and in any event shall not to be taken to be a waiver of these terms and conditions on any subsequent occasion.

19. TERMINATION

(a) If any payment is outstanding for more than seven (7) days after the due date (whether legally or formally demanded or not), or the Customer fails to observe or perform any of these terms and conditions, or a resolution is passed or proposed or a petition is presented or an application filing for the winding up of the Customer or an administrator, or receiver and manager is appointed in respect of the property, or any part of the property of the Customer, or proposes to make an arrangement with its creditors, the Company may at any time thereafter terminate any contract summarily by notice in writing to the Customer but without prejudice to the rights of the Company hereunder including its rights to demand and sue for all outstanding amounts owed by the Customer to the Company.

20. NOTICE

(a) A notice given by either the Company or the Customer shall be in writing, give the address of the recipient as set out on the credit application or as varied by written notice, be left at or sent by registered post, or email to that address in English.

21. SEVERANCE

(a) If one or more provisions of these terms and conditions is or becomes void, voidable or unenforceable for any reason, all other provisions shall remain in full force.

22. GOVERNING LAW

(a) This contract shall be governed and construed in accordance with the laws of the Australian State or Territory the Service was provided in.

END