In this Agreement: ‘goods’ includes any materials used in the installation unless inconsistent with the context; ‘owner’ means the registered proprietor of the premises: ‘premises’ means unless otherwise designated in writing by the purchaser – the place where the goods are to be delivered or installed; ‘Purchaser’ includes the person whose name appears overleaf and where there is more than one purchaser their liability shall be joint and several.
2. Commencement of Agreement
The offer from the Purchaser to Russell’s to purchase the goods overleaf shall not have been accepted by Russell’s until
- (a) the offer has been accepted by an authorised officer of Russell’s signing a copy of this Agreement; or
- (b) delivery of the goods to the Purchaser or to the premises, whichever first occurs.
- 3.1 Payment shall be made in full on the signing hereof, or by the manner specified overleaf, which shall be by one of the following;
- (i) Cash, EFTPOS or approved credit card,
- (ii) Cheque or Money Order. Payments by the form of Cheque or Money Order must allow 7 working days for payment to clear, prior to any goods being delivered or services rendered.
- (iii) Interest Free Terms as available from time to time to approved purchasers. Fees and charges may be payable.
- (iv) Direct Funds Transfer to the account nominated by Russell’s (account details provided upon request). Funds Transfer Reference must include Sales Order number, and remittance advice or proof of payment in full shall be sent by email from the Purchaser to email@example.com
- 3.2 Russell’s may discontinue installation works without any liability whatsoever to the Purchaser at any time after the Purchaser’s failure to pay any money owing to Russell’s and shall recommence work as soon as reasonably practicable after payment is made.
- 3.3 In the event of the Purchaser’s default under these terms and conditions the Purchaser shall pay to Russell’s on demand all costs including, without limitation, all legal costs on a solicitor/own clients basis!. all mercantile agents fees incurred by Russell’s in recovering or attempting to recover all amounts outstanding and payable under these terms and conditions and any dishonour or bank fees incurred by Russell’s relating to payments made by the Purchaser, from time to time.
4. Property and Risk
- 4.1 In the case of a cash sale, property and risk in the goods shall pass to the Purchaser upon the earlier of delivery by Russell’s of the goods to the Purchaser or to the premises.
- 4.2 In the case of a deferred payment sale or an instalment sale:
- (a) Property in the goods shall pass to the Purchaser when payment in full is made to Russell’s until that time, the Purchaser shall hold the goods as bailee for Russell’s.
- (b) Without prejudice and in addition to any other rights that Russell’s may have, Russell’s shall have the immediate right to retake and resume possession of the goods if:
- (i) the Purchaser fails to pay all or any part of the amount owing hereunder on the date for making payment. or
- (ii) a receiver or receiver and manager is appointed over any part of the undertaking property or assets of the Purchaser. or
- (iii) an order is made for the winding up or dissolution without winding up of the Purchaser or an effective resolution is passed for the winding up of the Purchaser, or
- (iv) the Purchaser is placed under official management.
- (c) For the purpose of re-taking and resuming possession of the goods. the Purchaser hereby licenses Russell’s to enter upon the premises or any other premises where the goods are kept and the Purchaser indemnifies Russell’s against all costs, claims and demands whatever in respect of the recovering of possession of the goods.
- (d) Where the goods become fixtures by annexation to the premises or any other premises where the goods are kept, the Purchaser shall procure the prior written consent of any encumbrancer or charge of the premises or such other premises to any severance of the goods by Russell’s pursuant to its rights hereunder while any moneys remain outstanding under this Agreement.
- (e) Risk with respect to the goods shall pass to the Purchaser on the earlier of delivery of the goods to the Purchaser or to the premises.
- 5.1 The delivery date or times are estimates only and Russell’s shall not be liable for late delivery or non-delivery and under no circumstances shall Russell’s be liable for any loss, damage or delay occasioned to the Purchaser arising from late or non-delivery or late installation of the goods.
- 5.2 Russell’s shall not be liable for any loss or damage to goods in transit and the Purchaser should effect its own insurance for damage to the goods in transit.
- 6.1 All installation quotes and charges, unless otherwise specified assume that;
- (i) sufficient electrical power is available from switchboard. Electrical works do not include the supply and installation of a Safety Switch (Residual Circuit Device) unless otherwise specified.
- (ii) existing gas and water reticulation is in serviceable condition. Russell’s will not be responsible for defects in existing pipework.
- (iii) dwelling is single storey, standard ceiling heights and typical in nature.
- (iv) existing installations meet current AGA requirements.
- 6.2 In the event:
- (i) Russell’s is unable to commence or conclude installation works as the result of factors referred to in Clause 9, or
- (ii) the parties hereto by mutual agreement vary this Agreement to exclude the performance or further performance by Russell’s of installation works hereunder
the Purchaser shall pay an amount equal to the sum of the outstanding balance of the price of the goods and the quantum meruit costs to Russell’s of any installation works performed by Russell’s.
- 6.3 All installation prices quoted are subject to inspection, which may occur prior to installation, or on day of installation prior to commencement of works.
- 6.4 Installation does not include the removal of any product containing asbestos, unless otherwise quoted. Removal of asbestos product will be additional cost to the purchaser
where applicable and to be quoted by the technician on a case by case basis. Refer clause .
- 6.5 Where existence of asbestos product prohibits the installation of goods, Russell’s may discontinue installation works without liability whatsoever to the Purchaser and the agreement may be terminated.
7. Variations to Original Agreement
In the event that Russell’s finds that the cost to Russell’s of the installation works will be higher than the cost upon which installation charges initially agreed to were based, this Agreement shall terminate forthwith and Russell’s shall refund to the Purchaser, without interest, any money received from the Purchaser on account of installation costs. Russell’s may propose, in writing, revised installation charges and the parties may vary this Agreement in writing so that it does not terminate and the revised installation charges shall become the installation charges for all purposes of this Agreement.
8. Conditions and Warranties
- 8.1 Certain laws imply terms, conditions and warranties (“prescribed terms”) into contracts for the supply of goods and prohibit the exclusion restriction or modification of such prescribed terms. Some prescribed terms permit a supplier to limit its liability for a breach thereof. The liability of Russell’s in respect of a breach of prescribed terms is limited to the full extent permitted by law.
- 8.2 Except as provided by prescribed terms, the Purchaser shall not have any cause of action or claim against Russell’s for any loss or damage howsoever caused by any defect in material or workmanship or any other defect in, or unsuitability for any purpose, of the goods, or by any act, default or negligence on the part of Russell’s or of any servant or contractor or agent of Russell’s.
- 8.3 These terms and conditions supersede and exclude all prior and other discussions, representations [contractual or otherwise] and arrangements relating to the supply of the goods, or any part thereof, including, but without limiting the generality of the foregoing, those relating to the performance of the goods, or any part thereof, or the results that ought to be expected from using the goods.
9. Force Majeure
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Russell’s, it is unable to perform any obligation under this Agreement, Russell’s shall be relieved of that obligation under this Agreement to the extent and for the period that it is so unable to perform and shall not be liable to the Purchaser in respect of such inability.
In the event that:
- (i) goods of the type referred to overleaf have been discontinued by Russell’s such that they are no longer available to be supplied to the Purchaser [“the discontinued goods”). and
- (ii) Russell’s has introduced another type of goods similar to or in replacement of any of the discontinued goods (“the replacement goods”] Russell’s shall have the option to deliver the replacement goods to the Purchaser or the premises in lieu of the discontinued goods on the terms and conditions contained in this Agreement.
The parties may vary this Agreement only in writing (which expression includes electronic communication between the parties).
No failure on the part of Russell’s to exercise, and no delay in exercising, and no course of dealing with respect to any right, power or privilege under this Agreement, shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power or privilege.