warranty liability and responsibility · 2019. 2. 15. · presenter does not assume responsibility...

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WARRANTY LIABILITY and RESPONSIBILITY A “Thought Provoker”

May 2013

+IMPORTANT DISCLAMER

n  Except to the extent otherwise indicated, this Presentation presents information as of the date hereof.

n  Presentations are intended for general information purposes only and do not replace independent professional judgment. Statements of fact and opinions expressed are those of the participants individually and, unless expressly stated to the contrary, are not the opinion or position of the Australian Solar Council, it’s cosponsors, or its committees. The presenter does not assume responsibility for, the content, accuracy or completeness of the information presented. Attendees should note that this session is to provide the stimulus for participants to seek out there own professional and legal advice should it be required.

n  In furnishing this Presentation, the Preparers reserve the right to amend or replace this Presentation at any time and undertake no obligation to update any of the information contained in the Presentation or to correct any inaccuracies that may become apparent.

Warranty Liability and Responsibility May 2013

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A Focus on Consumer Law


What should I be thinking about?

+The 4 Discussions we face.

Products Importers

Resellers Installers


Products What would you expect is reasonable?

Products (Hidden Traps)


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What am I buying?

+PRODUCT CERTIFICATION?

n WHO’S RESPONSBILTY?

n Yours or their's? No defense for “I didn't’t know…”

May 2013 Warranty Liability and Responsibility

Importers I am not the manufacturer?



+WHOS WHO? Australia Consumer Law View..

Title of your presentation

n Manufacturer includes a person who:

n  > grows, extracts, produces, processes or assembles goods

n  > holds him/herself out to the public as the manufacturer of goods

n  > causes or permits his/her name, business name or brand mark to be applied to goods he/she supplies

n  > permits him/herself to be held out as the manufacturer by another person, or imports goods into Australia where the manufacturer of the goods does not have a place of business in Australia.

http://www.consumerlaw.gov.au/content/the_acl/downloads/consumer_guarantees_guide.pdf

May 2013

+What about LEGAL EXPOSURE…

n Manufacturer

n  “The term “manufacturer” is defined broadly under the ACL to include both the actual manufacturer, as well as certain entities who are “deemed manufacturers” for the purposes of the Act. As a result, it is possible to have multiple “manufacturers” of the same good. For example, the actual manufacturer (based outside Australia) can be made a party to proceedings brought by a consumer against the Australian importer (who is deemed to be a manufacturer for the purposes of the ACL).”

n  http://www.claytonutz.com/docs/ACL_Dec_2010.pdf


Installer I am not the reseller?



+WHOS WHO? Australia Consumer Law View..

n Services duties, work, facilities, rights or benefits provided in the course of business. For example:

n  > installing or repairing consumer goods

n Supplier someone who, in trade or commerce, sells goods or services and is commonly referred to as a ‘trader’, ‘retailer’ or ‘service provider supply includes:

n  > in relation to goods – supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase, and

n  > in relation to services – provide, grant or confer. http://www.consumerlaw.gov.au/content/the_acl/downloads/consumer_guarantees_guide.pdf


+SUPPLY OF GOODS Australia Consumer Law view.. n In all contracts for goods, consumers are protected

by the inclusion of a number of statutory conditions and statutory warranties.

n  The statutory conditions require that: n  Goods must be of merchantable quality – they must meet a level of

quality and performance that would be reasonable to expect, given their price and description. They should also be free from defects that were not obvious at the time of purchase

n  Goods must be fit for their intended purpose – they should be suitable for any particular purpose the buyer made known to the seller.

n  The goods must match the description given to the consumer, or the sample shown.

n  A consumer must receive clear title to the goods – that is, the seller must be entitled to sell the goods.

http://transition.accc.gov.au/content/item.phtml?itemId=322947&nodeId=0d27732a8eba631f0d2ea13ccf345092&fn=Warranties+and+refunds.pdf


+SUPPLY OF SERVICES Australia Consumer Law view.. n All contracts for services contain a number

of statutory warranties. They require that: n  Any service must be carried out with due care and skill.

n  Any materials supplied in connection with the service must be reasonably fit for the purpose for which they are supplied.

n  The service, and any materials supplied in connection with the service, should be reasonably fit for any particular purpose the consumer made known to the seller.

http://transition.accc.gov.au/content/item.phtml?itemId=322947&nodeId=0d27732a8eba631f0d2ea13ccf345092&fn=Warranties+and+refunds.pdf


Warranties Who pays?



+‘Warranties against defects’ versus ‘express warranties’

A warranty against defects, also known as a ‘manufacturer’s warranty’, is different from an express warranty. n  A warranty against defects deals with what the manufacturer

promises to do when something goes wrong with goods. n  An ‘express warranty’ focuses on a promise or promises, for

example, about what the goods will look like, will do (or are capable of doing) and for how long.

n  Sometimes a warranty against defects may contain an express warranty.

n  http://www.consumerlaw.gov.au/content/the_acl/downloads/consumer_guarantees_guide.pdf


+EXPRESS WARRANTIES “ such as a 25 year performance Guarantee”

n  To re state:

n  Suppliers and manufacturers often make extra promises (sometimes called ‘express warranties’) about such things as the quality, state, condition, performance or characteristics of goods. If so, they guarantee that the goods will satisfy those promises.

n  For example: n  > A supplier tells the consumer that a bed will last for 10 years.

If the bed only lasts for six years, the consumer will be entitled to a remedy.

n  http://www.consumerlaw.gov.au/content/the_acl/downloads/consumer_guarantees_guide.pdf


Fix it? I am not the reseller?



+Who can the consumer claim a remedy from?

n  The supplier, if goods do not meet the consumer guarantees as to:

n  > fitness for any disclosed purpose n  > matching sample or demonstration model n  > title n  > undisturbed possession, or n  > undisclosed securities.



+Who can the consumer claim a remedy from?

n  The manufacturer, if goods do not meet the consumer guarantees as to repairs and spare parts.

n  Both the manufacturer and the supplier, if goods do not meet the consumer guarantees as to acceptable quality, express warranties and matching description.

n  The supplier, if services do not meet the consumer guarantees as to:

n  > due care and skill n  > fitness for particular purpose, or n  > completion within a reasonable time (where no time was set).



+Consequential loss

n  A consumer may also seek compensation from the supplier

or manufacturer for any consequential or associated loss or damage resulting from failure to meet the consumer guarantees. The loss or damage must have been reasonably foreseeable and not caused by something outside human control, such as a cyclone.

n  For example: n  A faulty toaster sets fire to a consumer’s house or burns the

consumer’s hand. The consumer is entitled to compensation to make up for that loss and damage, not just to a refund for the faulty toaster.



Warranty Liability and Responsibility

YOUR WORST CASE SENARIO?

May 2013

+ If the supplier of a product has gone out of business, can the consumer pursue a manufacturer for a remedy? n  If a supplier goes out of business, the consumer can not pursue the manufacturer to remedy the other guarantees in place of the supplier.

n  The consumer can only pursue the manufacturer to remedy those guarantees that they are responsible for. These are:

n  acceptable quality n  matching description n  repairs and spare parts.

n  The manufacturer must also honour any express warranties (promises in addition to the consumer guarantees) that they make, such as a manufacturer’s warranty.

n  For the purposes of the ACL, an importer becomes the manufacturer if they import goods, and the international manufacturer does not have a place of business in Australia.


+ ASIC - What should I do if the company has gone out of business? n  If the supplier has become insolvent and you are unable to contact the manufacturer, you can lodge a complaint with the supplier’s administrators. You can find out if a company has become insolvent via the Australian Securities and Investments Commission website or by phoning 1300 300 630. Your local Office of Fair Trading may also have information about the appointment of external administrators for insolvent companies.

n  Likewise, if the manufacturer has gone into administration, you can lodge a complaint with the company’s administrators. As a consumer, you may become an unsecured creditor.

n  If the external administrator fails to deal with your queries or complaints, you can lodge a complaint with ASIC.


+PRODUCT FAILURE – it happens.


+Key Summary

n  Manufacturer is the person that made or brought the goods into Australia;

n  Supplier is the person who sold, traded or re sold the goods and is sometimes the deemed to be the manufacturer;

n  Services are done by the people who install;

n  Warranties must be honored (Implied or Express) to the standard of the law;

n  Consumers can pursue multiple entities in regards to warranties (Implied or Express);

n  Consumers can pursue consequential losses.


Strategy What does this mean for me?

Strategy (Revenue/Growth)


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WHAT TO DO? The trust mark, training and promotional activities of the program aim to help differentiate your business from the rest. Your benefits for attaining Solar Gold Certification.


+SOLAR GOLD CERTIFICATION

n  Meet and exceed compliance standards every time.

n  Stay updated with changes to regulation, procedures and components.

n  Share knowledge and ideas with the best practice community.

n  Display the trust mark to provide customers with an extra level of quality assurance.

n  Gain exposure through Solar Gold consumer promotion.


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Reference's

Thankyou

http://www.asic.gov.au/ http://www.claytonutz.com/docs/ACL_Dec_2010.pdf http://transition.accc.gov.au/content/item.phtml?itemId=322947&nodeId=0d27732a8eba631f0d2ea13ccf345092&fn=Warranties+and+refunds.pdf http://www.fairtrading.qld.gov.au/AboutUs/Consumer_guarantees_fact_sheet.pdf http://www.consumerlaw.gov.au/content/the_acl/downloads/consumer_guarantees_guide.pdf http://solargold.com.au/solar-best-practice-pv-program/ http://transition.accc.gov.au/content/index.phtml/itemId/322947

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Thank you


warranty liability and responsibility · 2019. 2. 15. · presenter does not assume responsibility...

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