Terms and Conditions

Once measured, changes CANNOT be made to the opening unless discussed and approved with a Tower representative.

These terms and conditions are between [Tower Corporation Pty Ltd (ABN 68 620 303 282)/ Tower Garage Doors Pty Ltd (ABN 50 153 584 911), (we, us or our) and you, the party stated in the Quote (you or your), together the Parties and each a Party. Together, these terms and conditions and the Quote form the entire agreement under which we will provide the Goods and Services to you (together, the Terms).

1. Acceptance

You have requested the Goods and Services set out in the Quote, and accept these Terms by:

• signing and returning the Quote;
• accepting the Quote online or sending an email accepting the Quote (expressly or impliedly); or
• instructing us to proceed with the Goods and Services or making any payment of the Price (including any deposit).

Please read these Terms carefully and contact us if you have any questions.

2. Inspection

Upon or prior to issuing the Quote to you, we may have inspected the Site for the purposes of scoping the Goods and Services to be provided (Inspection).

You acknowledge, warrant and agree that:

• we may take measurements of the Site during the Inspection, or otherwise you must provide us with accurate measurements, of the Site (Measurements);
• the Goods will be manufactured on the basis of these Measurements;
• you are fully responsible for ensuring the Site is in a condition and/or constructed in such a manner, so that at the time when the Goods are to be delivered and the Services provided, the actual measurements at the Site reflect the Measurements, so as to allow the Services to be provided; and
• you must notify us as soon as reasonably possible if you would like to make any changes to the Measurements, in accordance with clause 2, and we reserve the right to reject any such change referred to in clause 2.2(d) (including where we have already begun manufacturing the Goods), and you will remain liable to pay the Price in full; and
• for the avoidance of doubt, we are under no obligation to make any changes to the Goods following any full or partial payment of the deposit or the Price, and you remain liable to pay the Price in full.

3. Call Out

You warrant and agree that on the date we notify to you that we will be attending the Site to provide the Goods and/or Services:

• the Site will have suitable power connection that we are permitted to access and use, consistent with any specifications that we advise you;
• there will be suitable access to the Site over sealed ground; and
• the Site access will be clear and free of obstructions.

If we attend the Site and we are unable to supply the Goods/and or Services:

• due to your breach of clause 1; or
• for any other reason caused or contributed to by you which is not outside your reasonable control,

then you agree to pay us a call-out fee of $450 (excluding GST), as a debt due and immediately payable. You acknowledge and agree that this fee is a genuine pre-estimate of our likely loss as a result of attending the Site and being unable to supply the Goods/and or Services.

4. Goods and Services

We agree to provide the Goods and Services to you in accordance with these Terms (including any Specifications) and all applicable laws.

You acknowledge and agree that any dates for completion or for delivery notified by us are estimates only, and we will have no liability to you for any Liability for failing to meet any delivery or milestone date.

We may provide the Goods and Services to you using our employees, contractors and third party providers (Our Personnel), and they are included in these Terms.

5. Variations

All variations to these Terms must be agreed in writing between the Parties and will be priced in accordance with the Quote, any schedule of rates provided by us, or otherwise as reasonably determined by us.

If you want to request a variation or change to the Goods and Services, including the timing for the provision of the Goods and Services, you must do so by providing written notice to us, with details of the variation or change (Variation Request).

We will not be obliged to comply with a Variation Request unless we accept it in writing, and any effect on the Price (Price Variation) has been adjusted to reflect the Price Variation, and the estimated timing for the Goods and Services has also been adjusted.

If we consider that any instruction or direction from you constitutes a variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued in accordance with clause 2.

Where the Goods and Services are varied or changed, or the costs of providing the Goods and Services increases (including as a result of any change in law), (Variation Event) and the cause of that Variation Event relates to, or is connected with, an event or circumstance beyond our reasonable control, you agree to pay us our reasonable additional costs and expenses that we may suffer or incur as result of the Variation Event, as a debt due and immediately payable.

6. Your Personnel and Works

You are responsible for the acts or omissions, or the goods or services provided by, your employees, contractors, invitees or others engaged by you (Your Personnel), and you agree to ensure they cooperate with us and do not interfere with our supply of the Goods and Services.

You agree that any works, goods or services provided by you or Your Personnel (Your Works) will be:

• provided solely at your own risk, and you agree that we will assume no responsibility or liability for any Liability for Your Works;
• fit for purpose, of merchantable quality and compliant with all applicable laws; and
• sufficient to enable us to comply with our obligations under these Terms and all applicable laws.

Where you provide to us any equipment, machinery or materials (Your Equipment) for us to use in providing the Services, you warrant and agree that, at all times:

• Your Equipment will be suitable and fit for purpose;
• Your Equipment will be in good working order and condition, free from defects and free from the risk of harm or injury to us, our Personnel or any other person; you will provide to us any manuals, operating guidelines, or similar, in relation to the Equipment upon request by us;
• you have title to, or the necessary licences or consents in relation to, Your Equipment, so as to allow us or our Personnel to use legally Your Equipment; and
• Your Equipment will be suitably insured by you, including to cover all loss, damage or theft to Your Equipment and to cover our use of Your Equipment.

7. Price and Payment

You agree to pay us the Price in accordance with these Terms. All amounts are stated in Australian dollars and are exclusive of GST (unless otherwise stated).

Unless otherwise agreed between the Parties, any deposit in the Quote must be paid before we commence the provision of the Goods and Services. The Quote is valid for acceptance by you for a period of three months from the date of the Quote. We may, at our absolute discretion, refuse to provide the Goods and Services contained in a Quote if the deposit is paid more than 3 months from the date of the Quote and we reserve the right to amend the Quote or re-issue a new Quote.

We may issue invoices to you periodically in respect of the remainder of the Price and any other amounts payable by you in accordance with these Terms. You agree to pay our invoices at the times, and using the payment method, stipulated in our invoice or as otherwise agreed between the Parties in writing, failing which, we may suspend the provision of the Goods and Services until we receive payment.

If you dispute any invoice, you agree to notify us of your dispute in writing within 7 days of the date of our invoice, setting out full details of your dispute.

We may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid 7 days after the date for payment.

8. Your Obligations and Warranties

You represent, warrant, acknowledge and agree that:

• you have effected and will maintain appropriate insurance policies for the Site for the duration of our provision of the Goods and Services under these Terms;
• there are no legal restrictions preventing you from engaging us, or agreeing to these Terms;
• you have not relied on any representations or warranties made by us in relation to the Goods and Services (including as to whether the Goods and Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
• the information you provide to us is true, correct and complete;
• you will not infringe any third party rights in working with us and receiving the Goods and Services;
• you will cooperate with us and Our Personnel, and provide us with all documentation, information and instructions, and sufficient access to the Site and other facilities at the Site, to enable us to carry out the Inspection and to provide the Goods and Services (including at the dates and times that we may reasonably request);
• you will ensure that the Site is safe and free of harmful materials or substances; and
• you are responsible for obtaining, and providing to us if necessary, any access, consents, licences, Approvals and permissions from other parties or authorities necessary for the Goods and Services to be provided, at your cost.

9. Your Statutory Rights

Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Goods and Services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL.

You agree that our Liability for the Goods and Services is governed solely by the ACL and these Terms.

Subject to your Statutory Rights, we exclude all express and implied warranties, representations and guarantees of any kind (whether under statute, law, equity or on any other basis) and all materials, work, goods and services (including the Goods and Services) are provided to you without warranties, representations and guarantees of any kind.

10. Delivery, Title and Risk

If the Parties agree that:

• we are responsible for delivering the Goods to you, we will use reasonable endeavours to deliver the Goods to the Site by the estimated delivery time, as notified by us to you; or
• you are responsible for collecting the Goods from us, we will use reasonable endeavours to make available the Goods, and you agree to collect the Goods, at the collection location by the collection time, as notified by us to you. You agree to comply with any policies and procedures which apply at the relevant collection location.

If these Terms state that we are responsible for delivering the Goods to the Site, you agree to pay for all Delivery Costs, which will be set out in the Quote.

Title in the Goods will remain with us until all amounts due and payable to us under these Terms are paid in full.

Risk in the Goods will pass to you on delivery of the Goods to your nominated delivery address or collection of the Goods at the collection location (as applicable).

You agree that we hold a general lien over any Goods owned by us that are in your possession, for the satisfactory performance of your obligations under these Terms. You agree that these Terms and your obligations under these Terms create a registrable security interest in favour of us, and you consent to the security interest (and any other registrable interest created in connection with these Terms) being registered on any relevant securities register (and you must do all things to enable us to do so).

11. Term and Termination

These Terms will commence upon your acceptance in accordance with clause 1, and will continue until the earlier of the date:

• we consider the Goods and Services to be complete or supplied to you in accordance with these Terms; or
• these Terms are terminated in accordance with this clause 11 (Term).

Either Party may terminate these Terms if the other Party has breached a material provision of these Terms and such breach is not rectified within 14 days from the date notice is received by that Party.

On termination of these Terms, you agree that:

• to the maximum extent permitted by law, any amounts paid for Goods and Services are non-refundable;
• you agree to pay us all amounts due and payable to us under these Terms (including for all Goods and Services provided by us) up to the date of termination, as a debt immediately due and payable;
• you agree to pay us our additional costs arising from, or in connection with, termination if you terminate these Terms under clause 2; and
• you agree to return or give us access to recover all property belonging to us on request (including any Intellectual Property or Confidential Information), and to give us or Our Personnel such rights of access necessary to exercise our rights under this clause 3(d).

The accrued rights, obligations and remedies of the Parties are not affected by termination of these Terms.

12. Liability, Indemnity and Exclusions

Exclusions: Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by (whether directly or indirectly):

• any Latent Conditions;
• acts or omissions of you or Your Personnel;
• your breach of these Terms, or any law or third party rights;
• any information, documentation, specifications or directions given by you or Your Personnel;
• Your Works;
• any loss or damage to any property, or any injury or death to any person, that is caused or contributed to by Your Equipment, except to the extent contributed to by our negligence in using Your Equipment;
• any loss, damage or theft to Your Equipment, except to the extent contributed to by our negligent act or negligent omission;
• loss or damage which is the inevitable part of performing the Goods and Services;
• any changes on, to or around, the Site resulting in the Measurements being inaccurate, except to the extent caused by us or our Personnel; or
• any event or circumstance beyond our reasonable control.

Limitation of liability: Despite anything to the contrary, to the maximum extent permitted by law:

• neither Party will be liable for any Consequential Loss;
• a Party’s liability for any Liability will be reduced proportionately to reflect the extent to which the other Party of its Personnel caused or contributed to the Liability; and
• our maximum aggregate liability for any and all Liability in relation to the provision of the Goods and/or Services or these Terms will be limited to us resupplying the Goods and/or Services to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the provision of the relevant Goods and/or Services to which the Liability relates.

13. Intellectual Property

As between the Parties, all Intellectual Property Rights developed, adapted, modified or created by or on behalf of us or our Personnel (including in connection with these Terms or the Goods and Services), whether before or after the date of acceptance of these Terms, will at all times vest, or remain vested, in us.

You grant us a non-exclusive, irrevocable, worldwide, sublicensable and non-transferable right and licence, for the duration of the Term, to use your and your Personnel’s Intellectual Property for the performance of our obligations under these Terms.

14. Confidentiality

Subject to clause 2, you must (and must ensure that Your Personnel do) keep confidential, and not use or permit any unauthorised use of, all Confidential Information.

Clause 1 does not apply to Confidential Information that:

• is required to be disclosed in order for you to comply with your obligations under these Terms;
• is authorised to be disclosed by us;
• is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms by you or your Personnel; or
• must be disclosed by Law or by a regulatory authority, including under subpoena.

15. General

Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the [Law Society of Western Australia/Law Institute of Victoria] to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

Governing law: These Terms are governed by the laws of [Western Australia/Victoria]. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in [Western Australia/Victoria] and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

GST: If and when applicable, GST payable on the Price will be set out in our invoice. You agree to pay the GST amount at the same time as you pay the Price.

Joint and Several Liability: Where you constitute two or more individuals or entities, you will each be jointly and severally liable under these Terms.

Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

Online execution: These Terms may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.

Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.

Survival: Clauses 9, 11, 12, 13, 14 and 15 will survive the termination or expiry of these Terms.

16. Interpretation & Definitions

Any reference to “Goods and Services” may mean “Goods and/or Services”, where the context permits.

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Quote, and:

Approval means any approval, consent, permit, application, registration or equivalent required to be obtained in connection with the Goods and Services by any Authority or any law.

Authority means any national, State, Territory or local government departments, bodies, instrumentalities or other public authorities the approval of which is applicable to or necessary for the provision of the Goods and Services.

Confidential Information includes information which:

• is disclosed to you in connection with these Terms at any time;
• is prepared or produced under or in connection with these Terms at any time;
• relates to our business, assets or affairs; or
• relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever you receive that information.

Consequential Loss includes any consequential loss, special loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise, but excludes the Price and any other amounts payable by you to us under these Terms.

Delivery Costs means the costs associated with the delivery or provision of the Goods and Services, including any insurance, customs, tariffs, duties or other such charges that may apply to the Goods and Services, as particularised in the Quote.

Goods and Services means the goods and services to be provided by us under these Terms, as expressly set out in the Quote.

Intellectual Property means any copyright, registered or unregistered designs or trade marks, domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Latent Conditions means any condition, event, circumstance, matter or thing in, on or around the Site or otherwise that could not have reasonably been foreseen or anticipated at the date of the Quote, and that would or would likely result in us, you or any third party suffering or incurring additional cost or delay, or would require a change to the Quote, Goods, Services, Price, and/or these Terms.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party or otherwise.

Price means the price set out in our Quote for the provision of the Goods and Services, and all other reasonable expenses or disbursements properly incurred by us in the provision of the Goods and Services.

Quote means the quote (including any online quote) to which these Terms are attached by reference.

Site means the site as set out in the Quote or none is specified, means the site for the provision of the Services, and includes any other property or sites adjoined to, surrounding or neighbouring the Site that may be necessary to access or use for the provision of the Goods and Services.

Specifications means any specifications for the Goods and Services, and, if applicable, as further particularised in an attachment to these Terms of the Quote.

Term has the meaning given in clause 11.1.