TERMS & CONDITIONS
Fence Pty Ltd Trading as Fence On
General Terms & Conditions of Trade
1. Definitions
1.1 “Seller” shall mean Fence Pty Ltd trading as Fence On gates & Fences and its successors and assigns.
1.2 “Buyer” shall mean the Buyer or any person acting on behalf of and with the authority of the Buyer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.
1.7 “Contract” shall mean an agreement concluded between the Seller and the Buyer in written form or an offer of the Seller accepted by order confirmation.
1.8 “Online Platform” shall mean seller’s website “Fenceon.com.au” and “Fenceondirect.com.au”
2. Acceptance
2.1 Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Buyer has entered into this agreement, the Buyer’s shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
2.4 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.5 The Buyer undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, E-mail address, or business practice).
3. Goods
3.1 The Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Buyer.
3.2 The Buyer does not rely on the skill or judgement of the Seller in relation to the suitability of any Goods for a particular purpose. The Buyer agrees that any advice, recommendation, information or assistance provided by the Seller is provided in good faith, relying upon the accuracy and completeness of information provided by the Buyer to the Seller, and is provided without any liability by the Seller whatsoever.
3.3 The Buyer warrants to the Seller that all drawings, specifications and other design information provided to the Seller for the manufacture of custom orders are accurate and correct in all respects and do not infringe upon the intellectual property rights of any third party including any copyright, patents, designs or trademarks of a third party.
4. Price & Payment
4.1 Unless previously withdrawn, a quotation is valid for thirty days or such other period as stated therein. A quotation is not to be construed as an obligation on the part of the Seller to supply Goods and/or services but merely an invitation to treat and no contractual relationship shall arise there from until the Buyer’s acceptance in writing has been received and accepted by the Seller. Upon acceptance of the Seller’s quotation the Buyer is to include and refer to the Seller’s quotation number in the Buyer’s Acceptance documentation and in all and any communications in relation to that quotation.
4.2 At the Seller’s sole discretion;
(a) The Price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
(b) The Price shall be the Seller’s current Price, at the date of delivery of the Goods, according to the Seller’s current Price list; or
(c) The Price of the Goods shall (subject to clause 4.2) be the Seller’s quoted Price which shall be binding upon the Seller provided that the Buyer shall
4.3 Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Seller’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion. accept in writing the Seller’s quotation within thirty (30) days.
4.4 At the Seller’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.6 For pre-approved Account Holders, the Buyers payment will be due as per their individual credit terms typically seven (7), fourteen (14) or thirty (30) days following the date of invoice. If no credit terms are provided with the Account, payment will be required in full in advance of delivery by either direct credit or electronic funds transfer (EFT).
4.7 For all other transactions, payment will be required in full in advance of delivery by either direct credit or electronic funds transfer (EFT).
4.8 All Credit cards payments are subject to a 2% merchant fee.
4.9 All orders where payments are made by credit card and customer is picking up from store will require the customer to show our despatch team a valid driver's license.
4.10 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
4.11 Any variations in the invoice or contract price because of currency fluctuations, taxes, customs duty or other imposts will be to the Buyer’s account. Any such price change will only be applicable to Buyer orders not yet accepted by the Seller, provided the Buyer is given 30 days prior notice of the price change.
4.12 Where payments are made that are not made in accordance with clause 4.7, the Buyer will also pay the Seller an administration fee of 1.5% of the amount so paid, if paid by Visa or Master Card, or administration fee of 2.75% of the amount so paid, if paid by American Express. That fee is agreed to be the liquidated cost of processing that abnormal payment. That fee is payable at the same time as the account to which it relates is due.
4.13 Payments received without remittance advice will be applied first to the oldest balance owing by the Buyer.
4.14 The Buyer may have access to the Seller’s Online Platform at the Seller’s sole discretion and the Seller reserves the right to terminate or suspend the Buyer’s access to Online Platform for any reason by giving the Buyer notice to that effect, either in writing or by way of Online Platform. No warranty is made as to the availability of Online Platform. If accepted the Buyer agrees that orders will be deemed to have been accepted by the Seller only when Online Platform makes a Sales Order Number available for viewing. The Buyer acknowledges that it is responsible for the administration of passwords and security allocations to its Authorised Users and agrees that it will be liable to pay for all orders made using the Buyer’s authorised user codes unless the order is cancelled with the written consent of the Seller. The Buyer further acknowledges that:
(a)delivery times and pricing projected as shown by Online Platform are no more than estimates and shall not be binding upon the Seller unless confirmed by the Seller by other means.
(b) the Seller accepts no responsibility for any loss arising directly or indirectly from damage to the Buyer’s systems arising from unauthorised access to Online Platform or unauthorised modification of Online Platform by third parties.
5. Delivery of Goods / Services
5.1 Delivery of the Goods shall be made to the Buyer’s address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Buyer at the Seller’s address.
5.2 The Buyer authorises the Seller to deliver Goods to the place nominated by the Buyer and to leave the Goods at such place whether or not any person is present to accept delivery. The Seller will not be liable on any basis whatsoever for loss suffered by the Buyer after delivery to the nominated delivery place.
5.3 The Seller will not be obliged to obtain a signed receipt or other acknowledgment from any person at the nominated place for delivery but if a signed receipt or other acknowledgment is obtained from someone believed by the Seller to be authorised by the Buyer to sign or otherwise take delivery, then such signed receipt or other acknowledgement will be conclusive evidence of the Buyer's acceptance of the Goods delivered.
5.4 Delivery of the Goods to a carrier, either named by the Buyer or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Buyer, is deemed to be a delivery of the Goods to the Buyer.
5.5 The Seller may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.6 The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.7 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.8 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
5.9 The Buyer will pay to the Seller packaging and delivery charges in accordance with the Seller’s current rates as at the date of dispatch. If there is no current rate, then a reasonable delivery charge will be paid by the Buyer.
5.10 The Seller reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Buyer within 7 days of a request by the Seller for such information.
5.11 Any times quoted for delivery are estimates only and the Seller will not be liable to the Buyer for any failure to deliver or for delay in delivery of Goods or performance of services occasioned by any cause whatsoever whether or not beyond the control of the Seller.
5.12 The Buyer will not be relieved of any obligation to accept or pay for Goods or services by reason of any delay in delivery or performance.
6. Risk
6.1 If the Seller retains property in the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7. Buyer’s Disclaimer
7.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Buyer and shall not be transferable to any subsequent Buyer.
8. Defect/Returns
8.1 Unless agreed in writing by the Seller, the Seller will not accept the return of Goods. Goods accepted for return by the Seller may attract charges to recover restocking and repackaging costs. The amount of these charges will be determined by the Seller and recoverable from the Buyer. Please see our Refund Policy for further details.
8.2 The Buyer shall inspect the Goods on delivery and shall, within twenty one (21) days of delivery, notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.3 For defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods provided that:
(a) the Buyer has complied with the provisions of clause 8.1;
(b) the Goods are returned at the Buyer’s cost within twenty one (21) days of the delivery date;
(c) the Seller will not be liable for Goods which have not been stored or used in a proper manner;
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
9. Warranty
9.1 Subject to the conditions of warranty set out in Clause 9.2 the Seller warrants that the product is free from manufacturing defects for a period of 12 Months. If a product with a manufacturing defect becomes apparent and is reported to the Seller within 12 Months of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) repair the defect or replace the product. The conditions applicable to the warranty given by Clause 9.1 are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
1. i) Failure on the part of the Buyer to properly maintain any Goods; or
2. ii) Failure on the part of the Buyer to follow any instructions or guidelines provided by the Seller; or
iii) Any use of any Goods otherwise than for any application specified on a quote or order form; or
1. iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
2. v) Fair wear and tear, any accident or act of God; or
3. vi) Scratching, abrasion, chipping or any other damage or deterioration caused by impact, accident, or misuse; or
vii) Deterioration of the metal substrate through oxidization or rusting
viii) Excessive condensation and/or foreign matter i.e. dust, environmental matter, animal excrement; or
1. ix) Normal weathering, including loss of gloss and colour of painted surfaces; or
2. x) Attack from chemical agents, fumes, liquids or solids; or
3. xi) Installation of the Product less than 1km from marine or industrial influences.
(b) The liability under the Warranty does not include or extend to:
1. i) Labour costs associated with the removal or repair of the defective Product, or installation of the replacement Product; or
2. ii) Injury to persons, damage to property, loss of income, profit or business, or any other indirect loss arising from or caused in any way by the defective Product.
(c) The warranty shall cease, and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the product is repaired, altered or overhauled without the Seller’s consent.
(d) In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Buyer’s claim.
(e) This Warranty does not cover against aesthetic surface corrosion including oxidization and red rust on aluminium, steel or stainless steel products.
9.2 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
9.3 This warranty is issued to the buyer, and is not transferrable to any other party, including the subsequent purchaser of the Site address unless the buyer is a developer, builder or a trades person who has ordered the goods to be sold and/or installed to a third-party customer. In such case, the Buyer should inform the Seller at the time of the order.
9.4 If the Goods are dismantled and re-erected, whether at the Site Address or alternate location, this Warranty will cease to be of any force or effect.
9.5 No warranty will be applied to any fence projects, or portions of work, which are repairs or add-ons to existing fences, and do not involve complete new fence installations.
9.6 The Seller does not warranty damage to the Goods caused by excessive irrigation, failure to keep the Goods free of excessive vegetation, soil contraction due to insufficient hydration or other causes, or faulty operation of hinges or other gate hardware due to lack of maintenance by the Buyer.
9.7 If any person, firm, or corporation other than the Seller, performs or attempts to perform any repairs, modifications or other changes to the completed work, then this warranty will become null and void.
9.8 Some third-party fence materials and services, i.e., Gate automation hardware, locks, letterboxes, powder coating etc. have a manufacturer’s warranty which may apply for periods longer than that of the Seller’s warranty. Gate operators and all access control devices have a manufacturer’s warranty typically ranging from 1-5 years and warranty information for these products will be supplied on an “as-requested” basis.
9.10 In the event that a part is covered under warranty from the manufacturer, the Buyer will be responsible for labour charges to the Seller to replace said part. If the part is not warrantied by the manufacturer, then the Buyer will be responsible to the Seller for the cost of the part and labour charges to replace said part.
9.11 Failure to request warranty information at the time of contract does not absolve the Buyer from the responsibility for any charges associated with replacement parts and/or labour.
10. Installation
10.1 The Seller shall take no responsibility to any damage caused to underground cables, pipes or other underground services and installations unless previously marked by the Buyer or his builder in accordance to guidelines provided by: Dial Before You Dig. (Information line:1100, website: www.1100.com.au)
10.2 Remains of the existing old fence will not be removed on completion of the new fence work unless pre-arranged.
10.3 The Buyer should supply all power and water to enable construction of the fence to take place, otherwise an additional cost will be added for the abovementioned expenses.
10.4 Obtaining council permits is the responsibility of the Buyer. The Seller takes no responsibility for the Buyer’s failure to obtain permits prior to installation of the fence.
10.5 Additional cost involved will be charged to the Buyer for any rock blasting, concrete breaking and any additional work to be performed, not otherwise provided for in the original quotation.
10.6 Removal of rubbish, trees, shrubs, brickwork, panels with Ivy on them or ant other obstruction not otherwise provided for in the original quotation will be charged for by mutual agreement.
10.7 The Seller shall take no responsibility for any damage to garden beds or other objects near the fence line from where the fencing works are to be conducted.
10.8 If fence line falls in the way of existing tree, brickwork, shed etc. it is up to the Seller to decide what purpose of building and fittings is best suited to overcome this specific problem, unless previously agreed.
10.9 If the post holes are in the way of cement work, the Seller is not responsible for the removal of any broken cement pieces from property and will not need to refill the new holes with cement unless asked by the Buyer. Extra costs will apply.
10.10 The Seller takes no responsibility for cars and damage caused to cars parked in the work zone during the installation of the fence. The Buyer should make sure the cars are moved out of the work zone.
10.11 The Seller advises that the Buyer should keep all persons away from the work zone during installation. This includes all children and pets as the Seller takes no responsibility for any injury caused by standing too close to fence and/or equipment during the working hours.
10.12 The Buyer agrees not to test the stability of the post work after the post installation. Cement used to install posts take approximately seven (7) days to fully dry, depending on weather conditions. Touching the posts before the cement is fully dry can cause them to fuse crooked. Extra costs will apply to fix the leaning post.
11. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
11.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
12. Lien & Stoppage in Transit
12.1 Where the Seller has not received or been tendered the whole of the price, or the payment has been dishonoured, the Seller shall have:
(a) a lien on the Goods;
(b) the right to retain them for the price while the Seller is in possession of them;
(c) a right of stopping the Goods in transit whether or not delivery has been made or ownership has passed; and
(d) a right of resale,
(e) the foregoing right of disposal, provided that the lien of the Seller shall continue despite the commencement of proceedings or judgement for the price having been obtained.
13. Cancellation
The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
14. General
14.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforce-ability of the remaining provisions shall not be affected, prejudiced or impaired.
14.2 The failure of the Seller to exercise a right or remedy, or any delay by the Seller in exercising a right or remedy, or the exercise by the Seller of only part of a right or remedy, or the granting of any indulgence by the Seller in favour of the Buyer does not:
(i) affect the Seller’s rights against the Buyer;
(ii) constitute a waiver of any term or condition; or
(iii) prohibit the Seller from exercising that right or remedy in relation to that breach or any other breach.
14.3 All Goods supplied by the Seller are subject to the laws of Victoria and the Seller takes no responsibility for changes in the law which affect the Goods supplied.
14.4 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
14.5 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Services.
14.6 The Buyer shall not set off against the Price amounts due from the Seller.
14.7 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
14.8 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the seller notifies the Buyer of such change.
14.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm, COVID related delay, international shipping delay or other event beyond the reasonable control of either party.
14.10 It is the Buyer’s responsibility to ensure that the contact information provided to the Seller is current and accurate including the Buyer's nominated email address, which the Seller will use to submit notices, invoices and statements. The Buyer agrees to promptly notify the Seller of any changes to the Buyer’s contact information.