Terms of service

ACL means Competition and Consumer Act 2010 Schedule 2: The Australian Consumer Law and its associated regulations as amended from time to time;

Agreement means the agreement between the DGS and the Client for the sale and purchase of the Goods set out in the Order Form, Terms and Conditions, and Warranty Documents;

Business Day means a day that is not Saturday or Sunday, public holiday, special holiday or a bank holiday between the working hours of 9 am and 5 pm;

Completion means the works are completed as per the specifications in the Agreement;

Consumer means the person acquiring the goods, the Client, and is defined pursuant to section 3 of the ACL;

Corporations Act means the Corporations Act 2001 (Cth) and its associated regulations as amended from time to time;

Client means the person, jointly and severally if more than one, (or their agent acting with the authority of the Client) as described on any Quotation, work authorisation or other form as provided by DGS to the Client who purchases Services and/or Goods from DGS;

Delivery means the Services and/or Goods are received by the Client by either collecting from the DGS premises or received and/or installed at the Client’s premises;

Deposit means the initial sum of monies paid by the Client to DGS to proceed as collateral for the supply of Services and Goods and an initial payment towards the Purchase Price;

DGS means Luke Igoe and Wendy Igoe trading as Doormate Garage Systems, ABN 90 284 805 771 and its successors or any person acting on behalf of and assigned with the authority of Luke Igoe and Wendy Igoe trading as Doormate Garage Systems, ABN 90 284 805 771;

Estimated Delivery Date means the date on which the DGS estimates the Goods will be completed for the Client to collect or for Delivery to the Client;

Goods means all products, accessories or components supplied by DGS to the Client (and where the context so permits includes any supply of Services) as described on the invoices, Quotation, work authorisation or any other forms as provided by DGS to the Client;

GST means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or replaced from time to time, any associated legislation, any legislation that imposes GST, and any regulations to the extent they relate to GST;

Intellectual Property means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, service marks, designs, patents, circuit layouts, business and domain names, database rights, confidential information, know how, inventions and other results of intellectual activity in industrial and commercial activities, existing anywhere in the world, whether or not registered or capable of registration, and any goodwill associated with such activity and any applications, renewals and extensions of such rights;

Liability means any liability, claim, debt or obligation of any kind (whether actual, prospective or contingent) however and whenever arising and includes liabilities which are prospective or contingent and those the amount of which, for the time being, is not ascertained or ascertainable and liabilities for any Loss;

Loss means all losses, costs, charges, damages, expenses or liabilities arising out of or in connection with a fact, matter or circumstance, including all legal and other professional expenses incurred in connection with investigating, disputing, defending or settling any Claim, or proceeding relating to that fact, matter or circumstance;

Any reference in this Agreement to DGS shall be deemed to include reference to both the Manufacturer and DGS.

Any reference to Goods means the provision of Goods or Services provided by DGS to the Client.

Any reference to dollars in this Agreement shall mean Australian dollars.

The singular of a word includes the plural and vice versa.

Client shall be deemed to have the same meaning as Consumer pursuant to section 3 of the ACL.

Terms and Conditions means the Terms and Conditions set out herein.

1. signs the Order Form;
2. sends an email to DGS accepting the Order for Goods and Services; or
3. makes a part payment or full payment of the Purchase Price.

In consideration of payment received, DGS will provide the Client with the Goods and Services that are expressly set out in the Order Form.

If the Client requires variations to the offered Goods and Services:

1. it must be entered into the Order Form as an amendment; and

2. it is at the discretion of DGS to accept the variation.

Any variation to the Order:

1. must be in writing and signed by both parties;

2. will be priced accordingly, and

3. if it causes additional costs or delay, DGS will not be obliged to comply unless in accordance with clause 4.2.

Should DGS not be able to supply any part of your order for Goods, at DGS’s discretion they will:

1. offer an alternative of equal quality; or

2. deliver the Goods and Services with a planned return date for installation of the missing Goods to satisfy completion; or

3. delay the completion time frame to allow for the installation of missing Goods; or

4. make a final cost adjustment in your favour for the Goods not provided.

Notwithstanding clause 3, DGS may refuse to deliver and/or may cancel this Agreement if before delivery it ascertains that the particulars provided by the Client are inaccurate, the Client is insolvent, bankrupt or does not have legal capacity to enter into a binding agreement.

The Purchase Price of the Goods and Services will be:

1. The price specified in the Quotation, subject to any amendment pursuant to these terms and conditions;

2. If the Client has accepted a written Quotation, the price specified in the Quotation, subject to any amendment pursuant to these terms and conditions;

3. The total price specified in each progress payment as outlined in the payment schedule with any price variation that may apply; or

4. The price specified in any invoice issued to the Client.

In consideration for DGS providing the Goods and Services, the Client agrees to pay the invoices as issued:

1. a non-refundable Deposit as invoiced, if required.

2. if applicable, Progress Payment claims.

3. the balance of the Purchase Price upon Completion.

4. any other amount payable to DGS made under this Agreement.

5. upon delivery unless otherwise agreed in writing.

6. if the Client has an approved credit account:

   1. within 30 days; or
   2. earlier if the Client has exceeded the approved credit limit.

Invoices will state:

1. GST and other applicable taxes and duties.

2. The account type:

   1. Cash on Delivery Account; or
   2. Account with credit limit.

3. The ABN of DGS and the Client (if applicable).

Unless otherwise specified in this Agreement, the quoted Purchase Price is exclusive of GST, and any other applicable taxes or duties imposed on or in relation to the Goods and Services DGS has agreed to supply.

Where there is any change in the costs incurred by DGS in relation to the Goods or Services, DGS may vary the Purchase Price to take account of any such change. These will be considered as an order variation and the Client will be notified in writing of any changes or variation to the Purchase Price.

Unless otherwise specified in this Agreement, the cost in relation to Goods and Services and any other applicable taxes or duties imposed on Goods and Services DGS has agreed to supply as specified in the Special Conditions will be added to the quoted Purchase Price.

DGS may request additional Progress Payments throughout various stages of the supply of the Goods and Services from time to time and at its discretion if it deems the Client is at risk of exceeding its credit limit, insolvency, incapacity, or because of any other act or omission at which time:

1. DGS will serve the Client with a written Notice of the payment amounts required; and

2. such progress payments are due within the time frame specified, or within 72 hours if no time is specified.

In addition to clauses 5.4, 5.5 and 5.6, the Client agrees to pay any interest, costs, expenses, disbursements and legal costs on a (solicitor/client basis) incurred by DGS in the enforcement of, or attempted enforcement of any rights, pursuant to this Agreement.

Payments by personal or bank cheque will not be considered as paid until the proceeds of the cheque have cleared. Credit card payments will attract a surcharge of 2%.

If DGS is unable to provide the Goods and Services, the Deposit will be refunded to the Client and DGS will have no further liability in respect of the failure to provide the Goods and Services.

The Client acknowledges if an account remains unpaid for 14 days or more, DGS has the right to charge an administration fee of:

1. $20.00; or

2. 10% of the overdue amount up to $50; being whichever is greater.

The Client agrees it is not entitled to set off against or deduct any amount owing from the Purchase Price, any sums owed or claimed to be owed to the Client by DGS, nor to withhold payment of any invoice, even when the invoice is in dispute.

By signing this Agreement, the Client agrees:

1. upon default of payment of any amount payable that is due becomes immediately due and payable by the Client; and

2. additional to the outstanding amount, any amount payable in respect of future payable amounts will become immediately payable; and

3. Notice will not be required for payment.

In the event of a default the Client indemnifies DGS in relation to, and agrees that:

1. DGS can charge the Client interest on the amount owing to DGS at the Penalty Interest rate plus 2% per annum for the period of default;

2. the interest will apply from the due date until the date of payment of monies owed in full, accrued daily;

3. the Client must pay all outstanding debts, including all amounts considered as a future contingent liability, charges and interest payable to DGS;

4. DGS can claim all costs and expenses (including legal costs) incurred by DGS in relation to default or in taking action to enforce compliance with the Agreement or to recover any outstanding sum due;

5. DGS can cease or suspend the supply of Goods and the provision of its Services until payment is received in full and final settlement of all monies owing; and/or

6. DGS can by Notice to the Client, terminate this Agreement.

DGS may also rely upon clause 6.2 at their option, where:

1. the Client is a natural person and becomes:

   1. bankrupt; or
   2. enters into any scheme of arrangement with any of their creditors; or

2. if the Client is a corporation and becomes:

   1. insolvent;
   2. entered into a fraudulent transaction;
   3. enters into any composition or arrangement with its creditors;
   4. a liquidator, administrator, receiver is appointed in respect of its assets; or
   5. is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction).

Title in the Goods remains with DGS until all obligations and amounts due and payable under this Agreement are paid by the Client in full.

Until DGS receives full payment in cleared funds as well as all other amounts owing by the Client for the Goods and Services:

1. the Client is the bailee of the Goods;

2. title and the property in all Goods will remain vested in DGS and does not pass to the Client;

3. the Client agrees where practicable the Goods will be kept separate and identifiable;

4. DGS can stop goods in transit and refuse to deliver Goods to the Client; and

5. the Client agrees the Agreement, and the Client’s obligations under this Agreement create a registerable PMSI in favour of DGS.

If the Client fails to make any payments for the Goods and Services, or at any time notifies DGS that they refuse to take delivery, DGS will have the right to:

1. Upon providing the Client 7 days' Notice sell the Goods and Services to another party;

2. Request that the Goods, or any part thereof be returned, at the cost of the Client;

3. Retain reasonable costs incurred by DGS, from monies paid for the Purchase of the Goods and Services including but not limited to:

   1. manufacturing, labour and administrative costs;
   2. interest, expenses, disbursements; and
   3. legal costs (on a solicitor/client basis) incurred by DGS in the enforcement of, or attempted enforcement of, any rights contained in this Agreement.

Any excess monies upon deduction of the costs in clauses 7.3(c)(i)-(iii) will be refunded to the Client upon sale of the Goods.

The Client agrees this Agreement, and the Client’s obligations under this Agreement create a registerable PMSI as defined in the PPS Act in favour of DGS.

The Client consents to the PMSI being registered on the Personal Security Register pursuant to the PPS Act.

The Client waives the need for the Client as the secured party to forward it a copy of any verification statement in respect of any financing statement or financing change statement registered under the PPSA by the Client as the secured party in connection with this Agreement.

The provisions of this Agreement for the Goods and Services, cannot be varied, except by agreement. Any variation agreed to by the parties must be in writing and signed by the parties.

If either party wishes to vary the Agreement, the proposing party must submit a copy of the proposed variations to the other party in writing. The receiving party must advise the proposing party within five (5) Business Days of receipt of the proposed variations:

1. that the receiving party accepts the variations; or

2. that the receiving party rejects the variations.

If the receiving party accepts the variations, the Agreement will be deemed to be so amended from the date of Notice of acceptance or from such other date as may be proposed in the Notice of variation.

If the receiving party rejects the proposed variations, each party must continue to perform the Agreement in accordance with the unvaried terms and originally agreed to.

A variation will not be effective unless the parties agree in writing as to:

1. the effect of the variation, if any, upon the fees and charges payable under the Agreement; and

2. the impact of the variation on the obligations of either party under this Agreement.

DGS reserves the right to refuse the Client’s requested variation:

1. upon acceptance of the Quotation by the Client;

2. upon payment of the Deposit or any other monies to DGS;

3. once Goods have entered manufacture; or

4. if the requested variations would, in DGS’s opinion, result in a safety issue or non-compliance with applicable Australian Safety Standards, and/or Australian Design Rules.

Upon giving written notice to the Client and without liability, DGS reserves the right to change the specifications of the Goods provided that:

1. those specifications and features are replaced with specifications and features of equivalent value, composition and quality; and

2. the end performance and capabilities of the Goods are not materially prejudiced.

Completion and/or Delivery dates and the Estimated Delivery Date of Goods and Services specified by DGS are estimates only.

DGS will use its reasonable endeavours to meet the Estimated Delivery Date but will not be liable for any loss or damage suffered by the Client or any third party for failure to meet the Estimated Delivery Date.

If DGS is unable to complete any of the nominated Goods by an Estimated Delivery Date, it will complete the Goods within a reasonable time.

Upon DGS giving the Client notice the Goods are ready for Delivery and Completion, the Client must:

1. pay the balance owing; and

2. agree to a time with DGS to:

   1. Collect the Goods from DGS’s premises; or
   2. Arrange for Delivery of the Goods as agreed upon, in writing; or
   3. Arrange a time for Delivery of the Goods and Services to install the Goods.

The Delivery time and date is an estimate only, if there is a delay in Delivery and Services the Client agrees:

1. the Client must accept Delivery of the Goods;

2. to pay for the Goods and Services, including any costs associated with freight; and

3. DGS is not liable for:

   1. any delay in Delivery or Service;
   2. loss or damages incurred by delay due to failure in Delivery or Service.

In the event the Client is unable to take Delivery of the Goods and Services at the time as agreed to by the parties, the Client agrees DGS will be entitled to charge a reasonable fee for Delivery of the Goods and Services at an alternative time.

Unless otherwise agreed in writing:

1. The Client is responsible for arranging pickup of Goods from the premises of DGS.

2. Delivery of the Goods will be deemed to occur once the Client or their agent has taken possession of the Goods.

3. The Client is responsible for all costs associated with the Delivery of the Goods from DGS to the Client, including but not limited to, freight, insurance and other associated charges.

At the time of Delivery, the Client must inspect the Goods and Services for compliance with the specifications in the Agreement and for any defects.

Subject to clause 11.6, DGS will not be liable for any defects or variation from the specifications in this Agreement unless the Client notifies DGS at the time of inspection, otherwise the Client will be deemed to have accepted the Goods and Services as is at time of Delivery.

The Client acknowledges DGS’s obligation to the Client for rectification of any defects in the Goods and Services are limited to the remedies pursuant to the ACL.

The Client acknowledges they have relied upon their own judgement and inspection in relation to the fitness and condition of the purchased Goods and Services upon Delivery.

The Client acknowledges Manufacturers of Goods may give Manufacturer's Warranties which:

1. state the Goods will be free from manufacturing defects for the period set out in the respective Manufacturer's Warranties;

2. as Manufacturer's Warranties vary, it is impractical to set them out herein;

3. the terms of such Manufacturer's Warranties are normally advised to a Client on taking Delivery from DGS;

4. if there is a defect in the Goods within the Warranty Period, the manufacturer may provide certain remedies in accordance with these advertised warranties; and

5. these warranties are in addition to the statutory guarantees provided by the ACL.

If the Client is a Consumer, nothing in this clause 10 limits any remedy available for a failure of the statutory guarantees under the ACL.

Legislation including the ACL and similar consumer protection laws and regulations, may confer the Client with rights, warranties, guarantees and remedies relating to the Goods, supply of Goods, and Services which cannot be excluded, restricted or modified by DGS or Manufacturers.

If the Client is a Consumer, nothing in this Agreement restricts, limits or modifies the Client's rights or remedies against DGS for failure of a statutory guarantee under the ACL.

DGS reserves its rights to not accept returns for Change of Mind or any other reason other than in accordance with the statutory guarantees of the ACL.

The Client agrees DGS’s liability for the Goods and Services is governed solely by the ACL and this Agreement.

Except as expressly set out herein this Agreement, and subject to the Client’s rights under the ACL, DGS excludes all implied warranties, representations and guarantees of any kind (whether statutory or otherwise).

The Client is responsible for arranging their own insurance for the Goods, and indemnifies DGS against any such actions, claims, suits, or demands or losses arising from an act or omission with regards to insurance.

The Goods are at DGS's risk until Delivered to the Client nominated in the Order Form. Once the Goods are delivered to the Client, the risk is transferred to the Client, whether or not transfer of title occurs on delivery of the Goods.

From the time of Delivery, the Client assumes all risk and liability for loss, damage or injury to persons or to property of the Client, or third parties, arising out of the use or possession of the Goods, unless recoverable from DGS on the failure of any statutory guarantee under the ACL.

Despite any other provisions in this Agreement or elsewhere, DGS's responsibility and liability is hereby excluded to the maximum extent permitted by law with respect to:

1. loss of or damage to, the Goods;

2. or any injury or loss to any person from the use of the Goods;

3. failure or delay in providing the Goods and Services; or

4. breach of this Agreement or any law, where caused or contributed to by any:

   1. event or circumstance beyond DGS’s reasonable control; or
   2. act or omission by the Client or the Client’s related parties.

Despite any other provisions in this Agreement or elsewhere, the Client is responsible and liable to the maximum extent permitted by law with respect to, and agrees to indemnify and release DGS in respect of any liability DGS may suffer, incur or will otherwise be considered liable for, because of, or in connection with:

1. the use of the Goods by the Client including, and without limitation, any property damage or personal injury or loss, resulting from the Client’s negligence, mistake or omission; and

2. any breach of this Agreement, or any laws by the Client.

Nothing in this Agreement is to be interpreted as excluding, restricting or modifying the application of any applicable State or Federal legislation which cannot be so excluded, restricted or modified.

This clause 13 will survive the termination or expiry of this Agreement.

All Intellectual Property developed, adapted, modified or created by DGS or DGS’s employees, or agents (including in connection with this Agreement and the Goods and Services) will at all times vest, or remain vested, in DGS. DGS authorises the Client to use the Intellectual Property solely for their personal use, and in the manner in which it was intended to be used. The Client must not, without the prior written consent of DGS:

1. copy, in whole or in part, any of the DGS’s Intellectual Property;

2. reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of the Intellectual Property to any third party; or

3. breach any Intellectual Property rights connected with the Agreement or the Goods or Services, including (without limitation) altering or modifying any of the Intellectual Property or creating derivative works from any of the Intellectual Property.

This clause 14 will survive the termination or expiry of this Agreement.

This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

1. the other Party (Defaulting Party) breaches a material term of this Agreement; or

2. the Defaulting Party is unable to pay its debts as they fall due.

In the event DGS is unable to deliver the Goods and Services, DGS reserves the right to cancel the Client’s order at their discretion, even if the Client was notified the order was accepted. DGS will terminate the Agreement by Notice.

Upon termination of this Agreement by DGS pursuant to clause 15.2, DGS will:

1. immediately cease providing the Goods and Services; and

2. refund the Deposit and any other monies paid.

Upon termination of this Agreement by DGS pursuant to clause 15.1:

1. DGS will immediately cease providing Goods and Services; and

2. without limiting the Client’s Consumer Law Rights, the Client agrees that any Deposits or Payments made to DGS are not refundable.

The accrued rights, obligations and remedies of the parties are not affected by termination of this Agreement.

This clause 15 will survive the termination or expiry of this Agreement.

Definition
For the purposes of this clause, Force Majeure Event means any of the following:

1. extreme weather or acts of God including floods, storms, cyclones, earthquakes, fires (including bushfires) or other physical natural disaster and extreme weather events;

2. acts of war (whether declared or not), hostilities, acts of terrorism, riots, civil or military disturbances or unrest, national or state-wide industrial disputes (excluding actions by, between or originated among employees of a party);

3. public health emergencies including pandemics, epidemics, outbreaks of infectious diseases or government-imposed quarantine or travel restrictions;

4. requisition or compulsory acquisition by any government or public authority excluding a general shortage of labour

which:

1. is beyond the control of and has occurred without the fault or negligence of the party affected;

2. was not foreseeable by the party affected at the date of this Agreement; and

3. the affected party is unable to prevent or overcome by the exercise of reasonable diligence.

The parties agree that if a party is affected, or likely to be affected, by a Force Majeure Event:

1. that party must immediately give the other party prompt notice of that fact including:

   1. full particulars of the Force Majeure Event;
   2. an estimate of its likely duration; and
   3. the obligations affected by it; and

2. the obligations under this Agreement of the party giving the Notice are suspended to the extent to which they are affected by the relevant Force Majeure Event, and, subject to any other provision contained within this clause, such suspension will be effective for as long as the Force Majeure Event continues.

A party claiming that its ability to perform its contractual obligations is prevented or impeded by a Force Majeure Event must use its best endeavours to remove, overcome or minimise the effects of that Force Majeure Event.

It is the sole responsibility of the Client to confirm the accuracy of any design, drawing, plan, information or instruction given with intent to be used by DGS in the provision of Goods and Services;

The Client indemnifies and will continue to indemnify, DGS against all claims, damages, losses, penalties, costs, and expenses in which DGS may become liable by reason of using or following the designs, drawings information, instructions, including any infringement of any patent, registered design trademark, copyright or any other third party, including moral rights;

Before DGS commences providing Services, the Client is responsible for ensuring that:

1. It produces all required valid and current permits and written consents;

2. The site is clear of debris, and readily and safely accessible by work vehicles within 5 metres of the installation position;

3. Any timber-faced Goods will be properly prepared and sealed on both sides and all edges

4. Electricity supply is readily available; if not DGS will charge for supply of this in accordance with clause 5.5;

5. Where any underground work is to be completed, reasonable steps will be taken to identify any potential underground services including but not limited to, contacting ‘Dial before you Dig’.

Once the Goods are installed:

1. Timber Goods must be sealed within 24 hours of installation to prevent exposure to humidity;

2. Steel must be coated within 24 hours of installation to prevent exposure to humidity; and

3. Require regular maintenance and servicing.

This clause 17 will survive termination or expiry of this Agreement.

DGS acknowledges where Clients are conferred rights to statutory guarantees, DGS has an obligation to offer an appropriate remedy pursuant to the ACL.

DGS will carry out all works in a proper and workmanlike manner and in accordance with plans and specifications as provided by the Client.

DGS will carry out all Services in accordance with all laws and legal requirements including, without limiting the generality of this warranty, the Building Act 1993 and its associated regulations.

DGS will carry out the works with reasonable care and skill.

The Client acknowledges:

1. if it is in default and does not pay monies owed to DGS; and

2. is not considered domestic building contract for domestic building works under the Domestic Building Contracts Act 1995 (Vic);

DGS may be able to make a payment claim under the Building and Construction Industry Security of Payment Act 2002;

If the Client does not make payment under the Building and Construction Industry Security of Payment Act 2002, the Client acknowledges DGS can:

1. register a lien over the fixed Goods; and

2. Suspend supply of the Goods and Services.

Jurisdiction: This Agreement is to be governed by and construed in accordance with all applicable laws in force in the State of Victoria from time to time and the parties submit to the non-exclusive jurisdiction of the courts of the aforesaid State.

Waiver of Rights: DGS's failure to enforce any of the Agreement shall not be construed as a waiver of any of the Seller's rights.

Entire agreement: Subject to the Client’s Consumer Law Rights, this Agreement contains the entire understanding between the parties, and the parties agree that no representation or statement has been made to, or relied upon by, either of the parties, except as expressly stipulated in this Agreement, and this Agreement supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

Joint and Several Liability: Where the Client constitutes two or more individuals or entities, each be jointly and severally liable under this Agreement.

Precedence: To the extent there is any ambiguity, discrepancy or inconsistency between the Special Conditions in the Order Form and the Terms and Conditions, the Special Conditions will prevail.

Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as necessary to allow it to be valid or enforceable, failing which, that provision (or the offending part of the provision) will be severed from this Agreement without affecting the validity or enforceability of the other provisions in this Agreement.

Rights at Law: It is not the intention of this Agreement to limit the Client’s right or remedies at Law.

Notices: In this Agreement, Notices must:

1. be in writing;

2. signed and if a company must be signed by the company’s directors or solicitors;

3. be delivered:

   1. in person;
   2. by certified mail (postage prepaid);
   3. email; or
   4. commercial courier.

4. must be delivered to the address provided by the parties in the Order Form; or

5. to such other address as either party may from time to time specify in writing to the other party; and

6. shall be effective only upon delivery, which for any Notice sent by email shall mean Notice that has been received by the party to whom it is sent as evidenced by the transmission report in the email program.

7. If a Notice delivered after 5:00 pm on any day, the Notice will be deemed to have been received at the commencement of business on the next Business Day.