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All Weather Windows (VIC) Pty Ltd T/A EZ Windows – Terms & Conditions of Trade

1. Definitions 1.1 “EZ Windows” means All Weather Windows (VIC) Pty Ltd ATF All Weather Windows (VIC) Unit Trust T/A All Weather Windows, its successors and assigns or any person acting on behalf of and with the authority of All Weather Windows (VIC) Pty Ltd ATF All Weather Windows (VIC) Unit Trust T/A All Weather Windows. 1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally. 1.3 “Goods” means all Goods or Services supplied by EZ Windows to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other). 1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between EZ Windows and the Customer in accordance with clause 5 below. 1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999”. 2. Acceptance 2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for Goods. 2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and EZ Windows. 2.3 In the event that the Goods and/or Services provided by EZ Windows are the subject of an insurance claim that the Customer has made, then the Customer shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by EZ Windows and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful. 2.4 The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with EZ Windows and it has been approved with a credit limit established for the account. 2.5 In the event that the supply of Goods request exceeds the Customers credit limit and/or the account exceeds the payment terms, EZ Windows reserves the right to refuse delivery. 2.6 In the event that the Customer is arranging or organising the supply of Goods and/or Services on behalf of a third party, then the Customer acknowledges and accepts that they shall be responsible for payment of the Goods and/or Services in the event that the third party defaults in all or any part of payment of the Price. 2.7 Where EZ Windows gives advice, recommendations, information, assistance or service to the Customer or the Customers EZ Windows, regarding the Goods or Services then it is given in good faith and EZ Windows shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Customer relying on the same. 3. Change in Control 3.1 The Customer shall give EZ Windows not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by EZ Windows as a result of the Customer’s failure to comply with this clause. 4. Quotation 4.1 Unless expressly stated by EZ Windows, the quoted Price shall not include: (a) the supply or erection of scaffolding, cranes, lifting or hoist equipment, scissor lifts as required to carry out window frame and glass installation to be supplied by others; (b) shop drawings; (c) outsourced hardware; (d) site allowance / union sites; (e) all structural support beam / stud work / cladding / brickwork / fixing angles & brackets to be supplied, installed and engineered by others; (f) concrete cutting, recessing; (g) all relevant building permits or council approvals or otherwise; (h) removal of protective tape or final clean; (i) plaster / tiling / painting and associated work by others; (j) Services to be provided outside normal working hours; (k) caulking to external or internal perimeters’; (l) trimming, cover plates, flashings, angels or capping; and (m) traffic management / barricades, safety barriers, bunting, fall protection. 5. The Price is based on plans provided and is the “site” unseen and may be subject to variation. In the event the Customer’s requires any of the above, the Price will be adjusted accordingly to include the work. 5.1 Notwithstanding that, any Price given that includes working from scale drawings are subject to the final measurements taken from the worksite. In which case, the Price charged will be based on actual measurements supplied and/or glazed/fitted by EZ Windows 6. Price and Payment 6.1 At EZ Windows’s sole discretion, the Price shall be either: (a) as indicated on any invoice provided by EZ Windows to the Customer; or (b) All EZ Windows’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. Unless specified otherwise, the Price does not include the supply of all internal finishes, such as plastering, painting, etc. 6.2 EZ Windows reserves the right to change the Price: (a) if a variation to the Services which are to be provided (including any applicable design, plans or specifications) is requested; or (b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the nominated address, safety considerations, obscured building defects, safety considerations, change in design and/or specifications, prerequisite work by any third party not being completed or inaccurate measurements provided by the Customer, etc.) which are only discovered on commencement of the Services; or (c) in the event of increases to EZ Windows in the costs of supply and/or production of Goods (including fluctuations in currency exchange rates and steel prices etc, or where a quote has been accepted but the Goods not ordered with a third party supplier (due to Customer delays) within a ninety (90) day period then the quoted price will be subject to change due to increases in costs that may be imposed by third party suppliers for materials), and/or delivery, due to circumstances beyond the reasonable control of EZ Windows. 6.3 Variations will be charged for on the basis of EZ Windows’s quotation, and will be detailed in writing, and shown as variations on EZ Windows’s invoice. The Customer shall be required to respond to any variation submitted by EZ Windows within ten (10) working days. Failure to do so will entitle EZ Windows to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion. 6.4 At EZ Windows’s sole discretion, a non-refundable deposit of thirty percent (30%) of the Price will be required. 6.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by EZ Windows, which may be: (a) normally on installation of the Goods, or on Delivery of the Goods, if the agreed order was a supply only order; (b) by way of instalments/progress payments in accordance with EZ Windows’s standard payment schedule, (c) the date specified on any invoice or other form as being the date for payment; or (d) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Customer by EZ Windows. 6.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge may apply per transaction-no Amex is accepted), or by any other method as agreed to between the Customer and EZ Windows. 6.7 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by EZ Windows nor to withhold payment of any invoice because part of that invoice is in dispute. 6.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to EZ Windows an amount equal to any GST EZ Windows must pay for any supply by EZ Windows under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price. 7. Delivery 7.1 Delivery of the Goods (“Delivery”) is taken to occur at the time that: (a) the Customer or the Customer’s nominated carrier takes possession of the Goods at EZ Windows’s address; or (b) EZ Windows (or All EZ Window’s nominated carrier) delivers the Goods to the Customer’s nominated address, even if the Customer is not present at the address. 7.2 At All EZ Window’s sole discretion, the cost of Delivery is included in the Price. 7.3 Any time specified by EZ Windows for delivery of the Goods is an estimate only and EZ Windows will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that EZ Windows is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then EZ Windows shall be entitled to charge a reasonable fee for redelivery and/or storage. 7.4 When an order is Express if for any reason of their own doing EZ Windows cannot manufacture an order in the due lead time the price will default back to the standard lead time price for the goods on the invoice and the customer will pay the total standard lead time price prior to the release of the goods (delivery or pick up.) 7.5 When an order is Express and the windows are complete within the express lead time and for whatever reason the customer cannot receive the windows the customer will still pay the express total prior to the release of the goods (delivery or pick up.) 8. Installation of Goods 8.1 The Customer shall ensure that EZ Windows has clear and free access to the nominated site at all times to enable them to install the Goods. EZ Windows shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of EZ Windows. 8.2 The Customer and EZ Windows shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities (including, but not limited to, any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation) that may be applicable to the installation of the Goods. 8.3 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the installation of the Goods. 9. Risk 9.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery. 9.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, EZ Windows is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by EZ Windows is sufficient evidence of EZ Windows’s rights to receive the insurance proceeds without the need for any person dealing with EZ Windows to make further enquiries. 9.3 If the Customer requests EZ Windows to leave Goods outside EZ Windows’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk. 9.4 The Customer acknowledges that in the event asbestos or any other toxic substances are discovered at the worksite that it is their responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify EZ Windows against any costs incurred by EZ Windows as a consequence of such discovery. Under no circumstances will EZ Windows handle removal of asbestos product. 9.5 Where EZ Windows is required to install the Goods the Customer warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and EZ Windows shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation. 9.6 The Customer acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, markings and veining, and may fade or change colour over time. Whilst EZ Windows will make every effort to match batches of product and/or samples supplied in order to minimise such variations, EZ Windows shall not be liable in any way. 9.7 Any advice, recommendation, information, assistance or service provided by EZ Windows in relation to Goods supplied is given in good faith, is based on EZ Windows’s own knowledge and experience and shall be accepted without liability on the part of EZ Windows and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods.
All Weather Windows (VIC) Pty Ltd T/A EZ Windows – Terms & Conditions of Trade

9.8 It is the Customer’s responsibility to remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Customer. All care will be taken where EZ Windows is instructed by the Customer to carry the Goods through the Customer’s premises to the site of installation but no responsibility is accepted by EZ Windows in this regard. The Customer agrees that the site will comply with all works, health and safety laws (WHS) relating to building/construction sites and any other relevant safety standards or legislation at all times. 10. Dimensions, Design, Plans and Specifications 10.1 All customary building industry tolerances shall apply to the dimensions and measurements of the Goods, unless EZ Windows and the Customer agree otherwise in writing. 10.2 EZ Windows shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. 10.3 If the giving of a quotation for the supply of Goods involves EZ Windows estimating measurements and quantities, it shall be the responsibility of EZ Windows to verify the accuracy of EZ Windows’s estimated measurements and quantities in the preparation of quotes and sales proposals. 10.4 The Customer is then shall be solely responsible for the design, configuration and quantity of add on items (i.e. windows, doors, colour, screens, hardware, locks etc.) to be supplied and installed by EZ Windows once an order is placed online. 10.5 When ordering online the customer is solely responsible for the sizes, configuration (i.e window style, colour, etc.) and options they have chosen. 11. Compliance Laws 11.1 The Customer and EZ Windows shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable. 11.2 EZ Windows warrants that the goods will comply with Australian Standards AS 1278 and AS 2047. The Customer agrees to notify EZ Windows, if it requires any variation to the Australian Standards. 12. Title 12.1 EZ Windows and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid EZ Windows all amounts owing to EZ Windows; and (b) the Customer has met all of its other obligations to EZ Windows. 12.2 Receipt by EZ Windows of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then EZ Windows’s rights and ownership in relation to the Goods, and this agreement, shall continue. 12.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 11.1: (a) the Customer is only a bailee of the Goods and must return the Goods to EZ Windows on request. (b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for EZ Windows and must pay to EZ Windows the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. (c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for EZ Windows and must pay or deliver the proceeds to EZ Windows on demand. (d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of EZ Windows and must sell, dispose of or return the resulting product to EZ Windows as it so directs. (e) the Customer irrevocably authorises EZ Windows to enter any premises where EZ Windows believes the Goods are kept and recover possession of the Goods. (f) EZ Windows may recover possession of any Goods in transit whether or not Delivery has occurred. (g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of EZ Windows. (h) EZ Windows may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer. 13. Personal Property Securities Act 2009 (“PPSA”) 13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA. 13.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by EZ Windows to the Customer. 13.3 The Customer undertakes to: (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which EZ Windows may reasonably require to; (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; (ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii); (b) indemnify, and upon demand reimburse, EZ Windows for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby; (c) not register a financing change statement in respect of a security interest without the prior written consent of EZ Windows; (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of EZ Windows; (e) immediately advise EZ Windows of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales. 13.4 EZ Windows and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions. 13.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA. 13.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA. 13.7 Unless otherwise agreed to in writing by EZ Windows, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA. 13.8 The Customer must unconditionally ratify any actions taken by EZ Windows under clauses 12.3 to 12.5. 13.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA. 14. Security and Charge 14.1 In consideration of EZ Windows agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 14.2 The Customer indemnifies EZ Windows from and against all EZ Windows’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising EZ Windows‘s rights under this clause. 14.3 The Customer irrevocably appoints EZ Windows and each director of EZ Windows as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf. 15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA) 15.1 The Customer must inspect the Goods on Delivery and must within seven (7) days notify EZ Windows in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow EZ Windows to inspect the Goods. 15.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-Excluded Guarantees”). 15.3 EZ Windows acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees. 15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, EZ Windows makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. EZ Windows’s liability in respect of these warranties is limited to the fullest extent permitted by law. 15.5 If the Customer is a consumer within the meaning of the CCA, EZ Windows’s liability is limited to the extent permitted by section 64A of Schedule 2. 15.6 If EZ Windows is required to replace the Goods under this clause or the CCA, but is unable to do so, EZ Windows may refund any money the Customer has paid for the Goods. 15.7 If the Customer is not a consumer within the meaning of the CCA, EZ Windows’s liability for any defect or damage in the Goods is: (a) limited to the value of any express warranty or warranty card provided to the Customer by EZ Windows at EZ Windows’s sole discretion; (b) limited to any warranty to which EZ Windows is entitled, if EZ Windows did not manufacture the Goods; (c) otherwise negated absolutely. 15.8 Subject to this clause 14, returns will only be accepted provided that: (a) the Customer has complied with the provisions of clause 14.1; and (b) EZ Windows has agreed that the Goods are defective; and (c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and (d) the Goods are returned in as close a condition to that in which they were delivered as is possible. 15.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, EZ Windows shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: (a) the Customer failing to properly maintain or store the Goods; (b) the Customer using the Goods for any purpose other than that for which they were designed; (c) the Customer continuing the use of the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) the Customer failing to follow any instructions or guidelines provided by EZ Windows; (e) fair wear and tear, any accident, or act of God. 15.10 In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by EZ Windows as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that EZ Windows has agreed to provide the Customer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 14.10. 15.11 Notwithstanding anything contained in this clause if EZ Windows is required by a law to accept a return then EZ Windows will only accept a return on the conditions imposed by that law. 16. Intellectual Property 16.1 Where EZ Windows has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of EZ Windows. 16.2 The Customer warrants that all designs, specifications or instructions given to EZ Windows will not cause EZ Windows to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify EZ Windows against any action taken by a third party against EZ Windows in respect of any such infringement. 16.3 The Customer agrees that EZ Windows may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods Which EZ Windows has created for the Customer. 17. Default and Consequences of Default 17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at EZ Windows’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
All Weather Windows (VIC) Pty Ltd T/A EZ Windows – Terms & Conditions of Trade

17.2 If the Customer owes EZ Windows any money the Customer shall indemnify EZ Windows from and against all costs and disbursements incurred by EZ Windows in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, EZ Windows’s contract default fee, and bank dishonour fees). 17.3 Further to any other rights or remedies EZ Windows may have under this contract, if a Customer has made payment to EZ Windows, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by EZ Windows under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement. 17.4 Without prejudice to EZ Windows’s other remedies at law EZ Windows shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to EZ Windows shall, whether or not due for payment, become immediately payable if: (a) any money payable to EZ Windows becomes overdue, or in All EZ Windows’s opinion the Customer will be unable to make a payment when it falls due; (b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer. 18. Cancellation 18.1 Without prejudice to any other remedies EZ Windows may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions EZ Windows may suspend or terminate the supply of Goods to the Customer. EZ Windows will not be liable to the Customer for any loss or damage the Customer suffers because EZ Windows has exercised its rights under this clause. 18.2 EZ Windows may cancel any contract to which these terms and conditions apply or cancel Delivery at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice EZ Windows shall repay to the Customer any money paid by the Customer for the Goods. EZ Windows shall not be liable for any loss or damage whatsoever arising from such cancellation. 18.3 In the event that the Customer cancels Delivery the Customer shall be liable for any and all loss incurred (whether direct or indirect) by EZ Windows as a direct result of the cancellation (including, but not limited to, any loss of profits). Because all orders are fully imported and made to measure orders, any cancellation will make the Customer liable for the payment of the remaining balance of the agreed Price, less any installation charges calculated by EZ Windows. 18.4 Cancellation of order for Goods made to the Customer’s specification, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed. 19. Privacy Act 1988 19.1 The Customer agrees for EZ Windows to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by EZ Windows. 19.2 The Customer agrees that EZ Windows may exchange information about the Customer with those credit providers and with related body corporates for the following purposes: (a) to assess an application by the Customer; and/or (b) to notify other credit providers of a default by the Customer; and/or (c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or (d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years. 19.3 The Customer consents to EZ Windows being given a consumer credit report to collect overdue payment on commercial credit. 19.4 The Customer agrees that personal credit information provided may be used and retained by EZ Windows for the following purposes (and for other agreed purposes or required by): (a) the provision of Goods; and/or (b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or (d) enabling the collection of amounts outstanding in relation to the Goods. 19.5 EZ Windows may give information about the Customer to a CRB for the following purposes: (a) to obtain a consumer credit report; (b) allow the CRB to create or maintain a credit information file about the Customer including credit history. 19.6 The information given to the CRB may include: (a) personal information as outlined in 18.1 above; (b) name of the credit provider and that EZ Windows is a current credit provider to the Customer; (c) whether the credit provider is a licensee; (d) type of consumer credit; (e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested); (f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and EZ Windows has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments); (g) information that, in the opinion of EZ Windows, the Customer has committed a serious credit infringement; (h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150). 19.7 The Customer shall have the right to request (by e-mail) from EZ Windows: (a) a copy of the information about the Customer retained by EZ Windows and the right to request that EZ Windows correct any incorrect information; and (b) that EZ Windows does not disclose any personal information about the Customer for the purpose of direct marketing. 19.8 EZ Windows will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law. 19.9 The Customer can make a privacy complaint by contacting EZ Windows via e-mail. EZ Windows will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au. 20. Building and Construction Industry Security of Payments Act 20.1 At All EZ Windows’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 (Victoria), may apply. 20.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 (Victoria) listed in clause 19.1 except to the extent permitted by the Act where applicable. 21. Unpaid Seller’s Rights 21.1 Where the Customer has left any item with EZ Windows for repair, modification, exchange or for EZ Windows to perform any other service in relation to the item and EZ Windows has not received or been tendered the whole of any monies owing to it by the Customer, EZ Windows shall have, until all monies owing to EZ Windows are paid: (a) a lien on the item; and (b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods. 21.2 The lien of EZ Windows shall continue despite the commencement of proceedings, or judgment for any monies owing to EZ Windows having been obtained against the Customer. 22. Service of Notices 22.1 Any written notice given under this contract shall be deemed to have been given and received: (a) by handing the notice to the other party, in person; (b) by leaving it at the address of the other party as stated in this contract; (c) by sending it by registered post to the address of the other party as stated in this contract; (d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission; (e) if sent by email to the other party’s last known email address. 22.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered. 23. General 23.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. 23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which EZ Windows has its principal place of business, and are subject to the jurisdiction of the courts in that state. 23.3 Subject to clause 14, EZ Windows shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by EZ Windows of these terms and conditions (alternatively EZ Windows’s liability shall be limited to damages which under no circumstances shall exceed the Price). 23.4 Neither party shall assign or sub-contract all or any part of their rights and obligations under this agreement without the written consent of the other party. 23.5 The Customer agrees that EZ Windows may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for EZ Windows to provide Goods to the Customer. 23.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party. 23.7 23.8 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this 23.9 23.10 Agreement creates binding and valid legal obligations on them. 24. Definitions 24.1 “EZ Windows” means All Weather Windows (VIC) Pty Ltd ATF All Weather Windows (VIC) Unit Trust T/A All Weather Windows, its successors and assigns or any person acting on behalf of and with the authority of All Weather Windows (VIC) Pty Ltd ATF All Weather Windows (VIC) Unit Trust T/A All Weather Windows. 24.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally. 24.3 “Goods” means all Goods or Services supplied by EZ Windows to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other). 24.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between EZ Windows and the Customer in accordance with clause 5 below. 24.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999”. 25. Acceptance 25.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for Goods. 25.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and EZ Windows.
All Weather Windows (VIC) Pty Ltd T/A EZ Windows – Terms & Conditions of Trade

25.3 In the event that the Goods and/or Services provided by EZ Windows are the subject of an insurance claim that the Customer has made, then the Customer shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by EZ Windows and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful. 25.4 The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with EZ Windows and it has been approved with a credit limit established for the account. 25.5 In the event that the supply of Goods request exceeds the Customers credit limit and/or the account exceeds the payment terms, EZ Windows reserves the right to refuse delivery. 25.6 In the event that the Customer is arranging or organising the supply of Goods and/or Services on behalf of a third party, then the Customer acknowledges and accepts that they shall be responsible for payment of the Goods and/or Services in the event that the third party defaults in all or any part of payment of the Price. 25.7 Where EZ Windows gives advice, recommendations, information, assistance or service to the Customer or the Customers EZ Windows, regarding the Goods or Services then it is given in good faith and EZ Windows shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Customer relying on the same. 26. Change in Control 26.1 The Customer shall give EZ Windows not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by EZ Windows as a result of the Customer’s failure to comply with this clause. 27. Quotation 27.1 Unless expressly stated by EZ Windows, the quoted Price shall not include: (a) the supply or erection of scaffolding, cranes, lifting or hoist equipment, scissor lifts as required to carry out window frame and glass installation to be supplied by others; (b) shop drawings; (c) outsourced hardware; (d) site allowance / union sites; (e) all structural support beam / stud work / cladding / brickwork / fixing angles & brackets to be supplied, installed and engineered by others; (f) concrete cutting, recessing; (g) all relevant building permits or council approvals or otherwise; (h) removal of protective tape or final clean; (i) plaster / tiling / painting and associated work by others; (j) Services to be provided outside normal working hours; (k) caulking to external or internal perimeters’; (l) trimming, cover plates, flashings, angels or capping; and (m) traffic management / barricades, safety barriers, bunting, fall protection. 28. The Price is based on plans provided and is the “site” unseen and may be subject to variation. In the event the Customer’s requires any of the above, the Price will be adjusted accordingly to include the work. 28.1 Notwithstanding that, any Price given that includes working from scale drawings are subject to the final measurements taken from the worksite. In which case, the Price charged will be based on actual measurements supplied and/or glazed/fitted by EZ Windows 29. Price and Payment 29.1 At EZ Windows’s sole discretion, the Price shall be either: (a) as indicated on any invoice provided by EZ Windows to the Customer; or (b) All EZ Windows’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. Unless specified otherwise, the Price does not include the supply of all internal finishes, such as plastering, painting, etc. 29.2 EZ Windows reserves the right to change the Price: (a) if a variation to the Services which are to be provided (including any applicable design, plans or specifications) is requested; or (b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the nominated address, safety considerations, obscured building defects, safety considerations, change in design and/or specifications, prerequisite work by any third party not being completed or inaccurate measurements provided by the Customer, etc.) which are only discovered on commencement of the Services; or (c) in the event of increases to EZ Windows in the costs of supply and/or production of Goods (including fluctuations in currency exchange rates and steel prices etc, or where a quote has been accepted but the Goods not ordered with a third party supplier (due to Customer delays) within a ninety (90) day period then the quoted price will be subject to change due to increases in costs that may be imposed by third party suppliers for materials), and/or delivery, due to circumstances beyond the reasonable control of EZ Windows. 29.3 Variations will be charged for on the basis of EZ Windows’s quotation, and will be detailed in writing, and shown as variations on EZ Windows’s invoice. The Customer shall be required to respond to any variation submitted by EZ Windows within ten (10) working days. Failure to do so will entitle EZ Windows to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion. 29.4 At EZ Windows’s sole discretion, a non-refundable deposit of thirty percent (30%) of the Price will be required. 29.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by EZ Windows, which may be: (a) normally on installation of the Goods, or on Delivery of the Goods, if the agreed order was a supply only order; (b) by way of instalments/progress payments in accordance with EZ Windows’s standard payment schedule, (c) the date specified on any invoice or other form as being the date for payment; or (d) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Customer by EZ Windows. 29.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge may apply per transaction-no Amex is accepted), or by any other method as agreed to between the Customer and EZ Windows. 29.7 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by EZ Windows nor to withhold payment of any invoice because part of that invoice is in dispute. 29.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to EZ Windows an amount equal to any GST EZ Windows must pay for any supply by EZ Windows under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price. 30. Delivery 30.1 Delivery of the Goods (“Delivery”) is taken to occur at the time that: (a) the Customer or the Customer’s nominated carrier takes possession of the Goods at EZ Windows’s address; or (b) EZ Windows (or All EZ Window’s nominated carrier) delivers the Goods to the Customer’s nominated address, even if the Customer is not present at the address. 30.2 At All EZ Window’s sole discretion, the cost of Delivery is included in the Price. 30.3 Any time specified by EZ Windows for delivery of the Goods is an estimate only and EZ Windows will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that EZ Windows is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then EZ Windows shall be entitled to charge a reasonable fee for redelivery and/or storage. 31. Installation of Goods 31.1 The Customer shall ensure that EZ Windows has clear and free access to the nominated site at all times to enable them to install the Goods. EZ Windows shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of EZ Windows. 31.2 The Customer and EZ Windows shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities (including, but not limited to, any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation) that may be applicable to the installation of the Goods. 31.3 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the installation of the Goods. 32. Risk 32.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery. 32.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, EZ Windows is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by EZ Windows is sufficient evidence of EZ Windows’s rights to receive the insurance proceeds without the need for any person dealing with EZ Windows to make further enquiries. 32.3 If the Customer requests EZ Windows to leave Goods outside EZ Windows’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk. 32.4 The Customer acknowledges that in the event asbestos or any other toxic substances are discovered at the worksite that it is their responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify EZ Windows against any costs incurred by EZ Windows as a consequence of such discovery. Under no circumstances will EZ Windows handle removal of asbestos product. 32.5 Where EZ Windows is required to install the Goods the Customer warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and EZ Windows shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation. 32.6 The Customer acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, markings and veining, and may fade or change colour over time. Whilst EZ Windows will make every effort to match batches of product and/or samples supplied in order to minimise such variations, EZ Windows shall not be liable in any way. 32.7 Any advice, recommendation, information, assistance or service provided by EZ Windows in relation to Goods supplied is given in good faith, is based on EZ Windows’s own knowledge and experience and shall be accepted without liability on the part of EZ Windows and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods. 32.8 It is the Customer’s responsibility to remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Customer. All care will be taken where EZ Windows is instructed by the Customer to carry the Goods through the Customer’s premises to the site of installation but no responsibility is accepted by EZ Windows in this regard. The Customer agrees that the site will comply with all works, health and safety laws (WHS) relating to building/construction sites and any other relevant safety standards or legislation at all times. 33. Dimensions, Design, Plans and Specifications 33.1 All customary building industry tolerances shall apply to the dimensions and measurements of the Goods, unless EZ Windows and the Customer agree otherwise in writing. 33.2 EZ Windows shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. 33.3 If the giving of a quotation for the supply of Goods involves EZ Windows estimating measurements and quantities, it shall be the responsibility of EZ Windows to verify the accuracy of EZ Windows’s estimated measurements and quantities in the preparation of quotes and sales proposals. 33.4 The Customer is then shall be solely responsible for the design and quantity of items (i.e. windows, doors, screens, hardware, etc.) to be supplied and installed by EZ Windows once a signed order is accepted by EZ Windows. 34. Compliance Laws 34.1 The Customer and EZ Windows shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable. 34.2 EZ Windows warrants that the goods will comply with Australian Standards AS 1278 and AS 2047. The Customer agrees to notify EZ Windows, if it requires any variation to the Australian Standards. 35. Title
All Weather Windows (VIC) Pty Ltd T/A EZ Windows – Terms & Conditions of Trade

35.1 EZ Windows and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid EZ Windows all amounts owing to EZ Windows; and (b) the Customer has met all of its other obligations to EZ Windows. 35.2 Receipt by EZ Windows of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then EZ Windows’s rights and ownership in relation to the Goods, and this agreement, shall continue. 35.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 11.1: (a) the Customer is only a bailee of the Goods and must return the Goods to EZ Windows on request. (b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for EZ Windows and must pay to EZ Windows the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. (c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for EZ Windows and must pay or deliver the proceeds to EZ Windows on demand. (d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of EZ Windows and must sell, dispose of or return the resulting product to EZ Windows as it so directs. (e) the Customer irrevocably authorises EZ Windows to enter any premises where EZ Windows believes the Goods are kept and recover possession of the Goods. (f) EZ Windows may recover possession of any Goods in transit whether or not Delivery has occurred. (g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of EZ Windows. (h) EZ Windows may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer. 36. Personal Property Securities Act 2009 (“PPSA”) 36.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA. 36.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by EZ Windows to the Customer. 36.3 The Customer undertakes to: (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which EZ Windows may reasonably require to; (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; (ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii); (b) indemnify, and upon demand reimburse, EZ Windows for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby; (c) not register a financing change statement in respect of a security interest without the prior written consent of EZ Windows; (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of EZ Windows; (e) immediately advise EZ Windows of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales. 36.4 EZ Windows and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions. 36.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA. 36.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA. 36.7 Unless otherwise agreed to in writing by EZ Windows, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA. 36.8 The Customer must unconditionally ratify any actions taken by EZ Windows under clauses 12.3 to 12.5. 36.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA. 37. Security and Charge 37.1 In consideration of EZ Windows agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 37.2 The Customer indemnifies EZ Windows from and against all EZ Windows’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising EZ Windows‘s rights under this clause. 37.3 The Customer irrevocably appoints EZ Windows and each director of EZ Windows as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf. 38. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA) 38.1 The Customer must inspect the Goods on Delivery and must within seven (7) days notify EZ Windows in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow EZ Windows to inspect the Goods. 38.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-Excluded Guarantees”). 38.3 EZ Windows acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees. 38.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, EZ Windows makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. EZ Windows’s liability in respect of these warranties is limited to the fullest extent permitted by law. 38.5 If the Customer is a consumer within the meaning of the CCA, EZ Windows’s liability is limited to the extent permitted by section 64A of Schedule 2. 38.6 If EZ Windows is required to replace the Goods under this clause or the CCA, but is unable to do so, EZ Windows may refund any money the Customer has paid for the Goods. 38.7 If the Customer is not a consumer within the meaning of the CCA, EZ Windows’s liability for any defect or damage in the Goods is: (a) limited to the value of any express warranty or warranty card provided to the Customer by EZ Windows at EZ Windows’s sole discretion; (b) limited to any warranty to which EZ Windows is entitled, if EZ Windows did not manufacture the Goods; (c) otherwise negated absolutely. 38.8 Subject to this clause 14, returns will only be accepted provided that: (a) the Customer has complied with the provisions of clause 14.1; and (b) EZ Windows has agreed that the Goods are defective; and (c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and (d) the Goods are returned in as close a condition to that in which they were delivered as is possible. 38.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, EZ Windows shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: (a) the Customer failing to properly maintain or store the Goods; (b) the Customer using the Goods for any purpose other than that for which they were designed; (c) the Customer continuing the use of the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) the Customer failing to follow any instructions or guidelines provided by EZ Windows; (e) fair wear and tear, any accident, or act of God. 38.10 In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by EZ Windows as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that EZ Windows has agreed to provide the Customer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 14.10. 38.11 Notwithstanding anything contained in this clause if EZ Windows is required by a law to accept a return then EZ Windows will only accept a return on the conditions imposed by that law. 39. Intellectual Property 39.1 Where EZ Windows has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of EZ Windows. 39.2 The Customer warrants that all designs, specifications or instructions given to EZ Windows will not cause EZ Windows to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify EZ Windows against any action taken by a third party against EZ Windows in respect of any such infringement. 39.3 The Customer agrees that EZ Windows may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods Which EZ Windows has created for the Customer. 40. Default and Consequences of Default 40.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at EZ Windows’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 40.2 If the Customer owes EZ Windows any money the Customer shall indemnify EZ Windows from and against all costs and disbursements incurred by EZ Windows in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, EZ Windows’s contract default fee, and bank dishonour fees). 40.3 Further to any other rights or remedies EZ Windows may have under this contract, if a Customer has made payment to EZ Windows, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by EZ Windows under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement. 40.4 Without prejudice to EZ Windows’s other remedies at law EZ Windows shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to EZ Windows shall, whether or not due for payment, become immediately payable if: (a) any money payable to EZ Windows becomes overdue, or in All EZ Windows’s opinion the Customer will be unable to make a payment when it falls due; (b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer. 41. Cancellation 41.1 Without prejudice to any other remedies EZ Windows may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions EZ Windows may suspend or terminate the supply of Goods to the Customer. EZ Windows will not be liable to the Customer for any loss or damage the Customer suffers because EZ Windows has exercised its rights under this clause. 41.2 EZ Windows may cancel any contract to which these terms and conditions apply or cancel Delivery at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice EZ Windows shall repay to the Customer any money paid by the Customer for the Goods. EZ Windows shall not be liable for any loss or damage whatsoever arising from such cancellation.
All Weather Windows (VIC) Pty Ltd T/A EZ Windows – Terms & Conditions of Trade

41.3 In the event that the Customer cancels Delivery the Customer shall be liable for any and all loss incurred (whether direct or indirect) by EZ Windows as a direct result of the cancellation (including, but not limited to, any loss of profits). Because all orders are fully imported and made to measure orders, any cancellation will make the Customer liable for the payment of the remaining balance of the agreed Price, less any installation charges calculated by EZ Windows. 41.4 Cancellation of order for Goods made to the Customer’s specification, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed. 42. Privacy Act 1988 42.1 The Customer agrees for EZ Windows to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by EZ Windows. 42.2 The Customer agrees that EZ Windows may exchange information about the Customer with those credit providers and with related body corporates for the following purposes: (a) to assess an application by the Customer; and/or (b) to notify other credit providers of a default by the Customer; and/or (c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or (d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years. 42.3 The Customer consents to EZ Windows being given a consumer credit report to collect overdue payment on commercial credit. 42.4 The Customer agrees that personal credit information provided may be used and retained by EZ Windows for the following purposes (and for other agreed purposes or required by): (a) the provision of Goods; and/or (b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or (d) enabling the collection of amounts outstanding in relation to the Goods. 42.5 EZ Windows may give information about the Customer to a CRB for the following purposes: (a) to obtain a consumer credit report; (b) allow the CRB to create or maintain a credit information file about the Customer including credit history. 42.6 The information given to the CRB may include: (a) personal information as outlined in 18.1 above; (b) name of the credit provider and that EZ Windows is a current credit provider to the Customer; (c) whether the credit provider is a licensee; (d) type of consumer credit; (e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested); (f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and EZ Windows has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments); (g) information that, in the opinion of EZ Windows, the Customer has committed a serious credit infringement; (h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150). 42.7 The Customer shall have the right to request (by e-mail) from EZ Windows: (a) a copy of the information about the Customer retained by EZ Windows and the right to request that EZ Windows correct any incorrect information; and (b) that EZ Windows does not disclose any personal information about the Customer for the purpose of direct marketing. 42.8 EZ Windows will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law. 42.9 The Customer can make a privacy complaint by contacting EZ Windows via e-mail. EZ Windows will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au. 43. Building and Construction Industry Security of Payments Act 43.1 At All EZ Windows’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 (Victoria), may apply. 43.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 (Victoria) listed in clause 19.1 except to the extent permitted by the Act where applicable. 44. Unpaid Seller’s Rights 44.1 Where the Customer has left any item with EZ Windows for repair, modification, exchange or for EZ Windows to perform any other service in relation to the item and EZ Windows has not received or been tendered the whole of any monies owing to it by the Customer, EZ Windows shall have, until all monies owing to EZ Windows are paid: (a) a lien on the item; and (b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods. 44.2 The lien of EZ Windows shall continue despite the commencement of proceedings, or judgment for any monies owing to EZ Windows having been obtained against the Customer. 45. Service of Notices 45.1 Any written notice given under this contract shall be deemed to have been given and received: (a) by handing the notice to the other party, in person; (b) by leaving it at the address of the other party as stated in this contract; (c) by sending it by registered post to the address of the other party as stated in this contract; (d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission; (e) if sent by email to the other party’s last known email address. 45.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered. 46. General 46.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. 46.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which EZ Windows has its principal place of business, and are subject to the jurisdiction of the courts in that state. 46.3 Subject to clause 14, EZ Windows shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by EZ Windows of these terms and conditions (alternatively EZ Windows’s liability shall be limited to damages which under no circumstances shall exceed the Price). 46.4 Neither party shall assign or sub-contract all or any part of their rights and obligations under this agreement without the written consent of the other party. 46.5 The Customer agrees that EZ Windows may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for EZ Windows to provide Goods to the Customer. 46.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party. 46.7 46.8 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this 46.9 46.10 Agreement creates binding and valid legal obligations on them.

I/We __ __ __ __ __ __ __ __ __ __ __ __ have read and understood the terms and conditions of sales attached to my quotation and acknowledge
that I have been provided with a copy of the terms.

Print Name:___________________________________

Customer Signature:_________________________________

All Weather Windows (VIC) Pty Ltd T/A EZ Windows – Terms & Conditions of Trade

Date: ____________________________________