TERMS OF TRADE

1.1 You agree that these Terms and the Table comprise our Contract with you under which AES will supply MEGAjoist trusses (Products/Trusses) to you.  Our payment terms are 50% upfront deposit and balance to be paid before delivery.

1.2 Please read these Terms carefully.

1.3 Contact us if you have any questions.  

1.4 Ordering Products from us (by signing this Quotation and paying the Deposit) indicates (a) that you have had reasonable opportunity to read these Terms and contact us if you have any questions or want to request changes, and that (b) you have read, accept and will comply with these Terms.  

1.5 If you do not agree to these Terms, please do not order our Products.

1.6 This document contains the entire agreement between us. It supersedes any prior agreements or representations between the Parties.

1.7 Please order your Trusses well in advance to assist with delivery as close as possible to Estimated Delivery Date. Late orders can cause late delivery (see clause 7.1).

2. (Products)

2.1 We shall provide the Products with due care and skill.  

2.2 We reserve the right to refuse any request which we consider inappropriate, unreasonable or illegal. 

2.3 Our Products are precisely engineered for the span/distance and load bearing on the building they are designed to be installed on.  

2.4 Our Products are designed in accordance with relevant Australian Standards and to comply with relevant engineering requirements. Floor live loads are designed for 150 kg/m2 for domestic loads and 300 kg/m2 for commercial loads. Roof trusses up to 75 kg/m2 or as required by AS1170.

3. (Installation Guide)

3.1 The Product (Truss) Installation Guide is extremely important. You should have received a copy with the confirmation of your Order. Please read it before installing Trusses. If you do not have an Installation Guide you must not commence installation of Trusses. The Installation Guide is free and is available on request and from our website https\\www.megajoist.com.au. 

3.2 By accepting this Quotation you agree to read the Truss Installation Guide before and follow it when you install the Trusses. It addresses management of important risks and dangers associated with overloading and docking trusses, as described below.

4. (Overloaded or modification of Trusses)

4.1 Docking (shortening) or overloading of Trusses can compromise the engineering integrity of Trusses with dangerous consequences including but not limited to structural failure resulting in injury or death or creation of latent risks, described in this Quotation and in the Installation Guide.

4.2 In order to reduce those risks AES shall not commence fabrication of Products until Customer:  (a) engages AES (for the additional fee stated in the Table) or a third party approved by AES in writing to perform a site measure for the Location building which is satisfactory to AES; or  (b) prepares drawings for the required Trusses from building plans provided by the builder in which case the builder shall by delivering the drawings to AES be deemed to certify that the prepared drawings are accurate. From our experience a site measure is more accurate than building plan drawing measurements.

4.3 The site measure or building plan drawings must satisfy quality and detail standards required by AES in its absolute discretion. AES may refuse to fabricate Trusses until it is satisfied with the detail of site measurements or drawings. We cannot guarantee accuracy of your measurements and will not be responsible unless AES undertakes a site measure.

4.4 You/ the builder will be responsible for any errors in any dimensions in site measurements or drawings provided by you or your contractor and for any loss damages or claims flowing from such errors. To avoid that potential liability we recommend that you engage AES to perform a site measure.

4.5 You indemnify us for any errors and any claims losses or damages flowing from errors in site measures or building plan drawings not provided by AES.  

4.6  Building materials such as wood, plaster, cement bags etc. placed on Trusses can overload and damage Trusses, causing a potential failure and should not be placed on Trusses.  

4.7 Trusses should not need to be modified if a proper site measure is undertaken and accurate drawings are prepared.  

4.8  Unauthorised modification of Trusses can cause Truss failure and consequential risk and/or damage to property or life. Those risks are hidden when Trusses are clad with plaster and other lining material. 

4.9 If for any reason you wish to modify Trusses, the opinion of a structural engineer should first be obtained and delivered to us. Our managing director is a structural engineer and is available to advise on such matters.

4.10 If you know of or suspect that Trusses may have been docked without proper authority or overloaded you must advise us in writing as a matter of urgency. We will provide free advice on how to deal with the issue.  

4.11 You in your own right and as agent on behalf of your client or customer release us from all liability and indemnify us with respect to any claims for loss and damages of any kind resulting from overloaded or modified Trusses.

5. (Performance based solution)

The MEGAjoist system relies on a combination of structural adhesive and screw shanked nails rather than relying solely on a mechanical fixing system such as nail plates. Under Part A2 of the National Construction Code 2019 (“NCC”) as of July 1^st 2021 the MEGAjoist glued connections are deemed to be a performance based solution. This means that the fixings are engineer designed, tested and certified to meet the performance requirements of the NCC, rather than being designed as mechanical fixings under AS 1720.5:2015 as per conventional nail plate trusses. By accepting this quote, I acknowledge I have made the relevant stakeholders aware (builder, owner and building surveyor etc.) of the above and accept the use of MEGAjoist Trusses for this project on behalf of all stakeholders.

6. (Price & Payment)

6.1 Fabrication of Trusses will not commence until the Quotation is signed and returned to us and the stated deposit 50% is paid. Credit approval is available for return customers at our discretion.

6.2 The balance of the price owing is payable prior to delivery of Products. If payment is not received before Delivery AES will charge Interest on unpaid amounts at the then current rate set by the Penalty Interest Rates Act 1983.

6.3 If an Invoice is unpaid on Delivery Date we reserve the right to delay Delivery, engage debt collection services and the right to commence legal proceedings for any outstanding amounts owing to us. We will claim from you any legal costs we incur.

6.4 You agree that if we commence legal proceedings for outstanding amounts, you will not lodge a defence unless you have a legitimate reason for doing so.

6.5 If an Invoice is unpaid for 7 days or more you authorise us to contact any stakeholders including the owner of the land on which the building is being constructed for which the Trusses were ordered, to advise them of your default and to request that they pay us directly. 

7. (Delivery & Title)

7.1 Delivery time for the Products is estimated for Delivery Date set out in the Table above.

7.2 AES shall use its best endeavours to deliver Products on Delivery Date. You acknowledge that starting and completion dates are subject to change due to weather conditions, adhesive drying times and other circumstances beyond our reasonable control. Please therefore order Trusses with sufficient lead time to minimise the chance of late delivery. Time shall not be of the essence of this Contract with respect to delivery.

7.3 We take all reasonable care when providing the Products, but when the Products are delivered by a third party courier, our responsibility ends when the Products are loaded onto the third party’s truck at our factory.

7.4 Storage handling and installation of the Products after Delivery is your responsibility.

7.5 Ownership of the Products will not pass to the Customer until AES has received cleared funds paid in full.

7.6 The Parties acknowledge that engineering structural certificates for our Trusses may be required before your building surveyor can certify the building frame, so that construction can proceed.  

7.7 AES reserves the right in its absolute discretion to withhold or rescind any engineering structural certificates for Products until AES has received cleared funds paid in full. AES shall not be liable for any delays in building progress and/or any claims losses or damages flowing from any delay in us providing engineering structural certificates because you have not paid us.

8. (Variations)

8.1 If you request a variation to the Products ordered we reserve the right to agree to or refuse the request. If we agree, we will inform you of any additional cost.  You must approve the additional cost in writing before we commence the additional work. We will invoice you accordingly for the variation. If we are unable to provide the variation, we may ask you to pay us for Products provided to date and terminate these Terms.

8.2 Customer can make a special request for Trusses to be fabricated to allow for a safe margin of authorised docking. Those Trusses will be clearly shown on the supplied truss fabrication drawings. There may be a small additional charge for this service. Please inquire where appropriate.

8.3 The cost to us of materials we use to fabricate Trusses is market driven and volatile. Our pricing structure, payment terms and these Terms may be amended from time to time at our discretion. Any pricing changes will apply to you for Products ordered by you after the date of the change.

9. (Term & Termination)

9.1 This Contract will begin on your acceptance of this Quotation and continue until the Products are paid for and delivered or until ended earlier as set out in this clause.

9.2 The Parties may end this Contract by mutual agreement by notice in writing.

9.3 We may terminate or suspend this Contract immediately, at our sole discretion if: (a) we consider a request for the Products is inappropriate, improper or unlawful; (b) we discover that a person who signs this Quotation on behalf of a company and has declared he is a director of that company, is not a director of that company. (c) you fail to provide us with clear or timely instructions and measurements to enable us to accurately fabricate the Trusses; or refuse to allow AES to undertake a site measure. (d) you fail to pay our invoice on the due date; (e ) we change these Terms , notify you of the change and you do not agree in writing to the change; (f)  we consider that our working relationship with you has broken down including a loss of confidence and trust and we advise you in writing of our decision; (g) for any other reason outside our control which has the effect of compromising our ability to perform the work required within the timeframe required; or

9.4 You may terminate this Contract if we fail to deliver Products more than 30 days after Delivery Date and you or a force majeure are not responsible for the delay.

9.5 If you terminate this Contract early you must pay for all Products provided prior to termination, including any services (such as site measures) which have been performed and have not yet been Invoiced to you.

9.6 On early termination of this Contract you agree that any Deposit or payments made are not refundable to you, and you are to pay all Invoices sent to you.

9.7 On delivery of the Products we will only retain documents of yours as required by law or regulatory requirements or as are reasonably appropriate to manage any potential risk which might in future arise in relation to the Products.

9.8 The accrued rights obligations and remedies of the Parties are not affected by termination of this Contract.

10. (Consumer law, limitation of liability and disclaimers)

10.1 If the Australian Consumer Law (“ACL”) applies to this contract (which we do not admit) the following mandatory wording prescribed on 9 June 2019 applies:  Our Goods come with guarantees which cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure. 

10.2 Subject to these Terms, to the fullest extent permitted by law, AES excludes all statutory or implied conditions and warranties and any other liability it may have to the Purchaser including but not limited to: (a) implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms; (b) the Products being unavailable; and ( c) any loss, damage (including liquidated damages), costs including legal costs, or expenses whether direct, indirect, incidental, special, consequential and/ or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any direct, remote, abnormal or unforeseeable loss, any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with  your inability to access or use the Products, and the late supply of Products, even if we were expressly advised of the likelihood of such loss or damage.

10.3. Subject to these Terms, to the extent permitted by law, AES limits its liability under any condition or warranty which cannot be legally excluded in relation to the supply of the Goods to whichever of the following AES chooses: (a) replacing the Goods or supplying equivalent Goods again; (b) repairing the Goods; (c) paying the cost of replacing the Goods or of acquiring equivalent Goods again or (d) paying the cost of repairing the Goods. This clause will survive termination of this contract.

10.4 To the fullest extent permitted by law we exclude the ACL guarantees where a major failure or failure of the Goods is due to overloading or docking of Trusses as described in clause 4.  Your remedies do not cover damages and consequential loss in any way relating to you your employees contractors agents or other third parties overloading or docking Trusses.

10.5 Delay. Where the provision of Products depends on your information or response, we have no liability for a failure to provide the Products in the period set out in the Quotation where it is affected by your delay in response to our questions or your supply of incomplete or incorrect information or measurements.

11 (Indemnity) 

11.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions, and expenses, including costs of litigation and reasonable legal costs, from any person (including a purchaser of the building at which the Products are installed) resulting directly or indirectly from:   (a) any information by you on which we act that is not accurate, up to date or complete or is misleading or a misrepresentation;   (b) any errors in site measurements or building plan measurements provided by you or your agents or contractors instead of by us;  (c) any damage to Trusses or damage arising from overloading or docking of Trusses;  (d) any breach of these Terms, and  (e) any misuse of the Products by you, your employees, contractors or agents clients or customers.

11.2 The obligations under this clause will survive termination of these Terms.

12. (Feedback & Dispute Resolution)

12.1 Your feedback is important to us. We strive to resolve customer concerns quickly and effectively. Please contact us if you have any feedback or questions.

12.2 If a dispute arises between us in relation to these Terms or the Products: (a) The aggrieved Party must tell the other Party in writing the nature of the dispute, what outcome is required and what action might settle the dispute. The parties will meet in good faith and use their reasonable best endeavours to resolve the dispute. (b) If the Parties cannot agree to resolve the dispute within 5 Business days, either party may refer the matter to a mediator. If the Parties cannot agree on a mediator within 5 Business Days, a Party shall ask the Law Institute of Victoria to appoint a mediator. The Parties must attend the mediation in good faith and use their best efforts to resolve the dispute. (c)  Any attempt by Parties to resolve a dispute using this clause are without prejudice to other rights of the Parties under these terms, by law or in equity.

13. (Company Director Must Sign)
14. If you are a company, a director of that company must sign this Quotation and that director hereby personally guarantees payment for the Products. You agree if the company does not pay us on the due date we have the right to sue the director for all moneys owing.
15. ( General)

14.1 These Terms are personal to the Parties and cannot be assigned without the prior written consent of the other Party.

14.2 If any provision (or part of it) of these Terms is held to be unenforceable or invalid in any jurisdiction it will be interpreted as narrowly as necessary to allow it to be enforceable or valid; and if that is not possible it will be severed from these Terms so that the remaining provisions will be valid and enforceable.

14.3 We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstances beyond our control. If we are delayed from performing our obligations due to such a circumstance for at least 7 days, we may terminate our agreement with you by giving you 5 Business Days notice in writing.

14.4 Notices. Any notice to be given by either party to the other under these terms will be in writing addressed to the recipient at its address in the Quotation. Any notice may be sent by Australia Post or email and notice will be deemed to have been served 48 hours later in the case of postage, and at the time of transmission in the case of email.

14.5 Jurisdiction. These Terms are governed by the laws of Victoria and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.