Contract and Acceptance

A binding contract will be established upon the customer’s acceptance of the supplier’s quotation and/or upon the customer instructing the supplier to order materials or commence work on the customer’s order.

Any variations made by the customer to the goods/services or variations to site or other conditions or events that occur before or during performance of the works will incur extra costs.

‘The customer’ in these terms is the person, company or body that instructs the supplier to undertake the work irrespective of whether they are acting as an agent or in any other capacity on behalf of the Customer.

The supplier reserves the right to make any enquiries and/or request assurances from any parties to ascertain the customer’s ability to pay for the supplier’s goods/services.

These terms of trade can only be amended with the written consent of the supplier.

All orders for goods/services are accepted and supplied strictly on the supplier’s terms to the total exclusion of anything to the contrary contained in the customer’s order form or other documents.

Any instructions from the customer to the supplier for the supply of goods/services and/or the acceptance of them shall constitute acceptance of the supplier’s terms as contained herein.

Price & Payment

Price estimates are not quotations and are subject to change at the supplier’s sole discretion. Unless stated otherwise GST and other applicable taxes shall be added to the price.

At the supplier’s sole discretion, the supplier may require a non-refundable deposit before procuring materials or commencing work on the customer’s order and/or before delivery of the goods/services.

The customer shall not withhold any monies owing to the supplier as retention or default, alleged default or for any other reason.

Payment is strictly on the basis agreed in writing. If no specific payment terms have been agreed, payment must be made immediately upon request by the supplier, time being of the essence as to this obligation.

Payment shall only occur when cleared funds have been received by the supplier.

The supplier can, at its sole discretion and without prejudice to its other rights and remedies, withhold supply and demand immediate payment of all amounts owed if the customer’s account is overdue or the supplier is concerned over their ability to pay.

The supplier can demand immediate payment of any or all amounts owed even if they are not currently due for payment if the customer becomes insolvent, proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors or a receiver, manager, liquidator or similar person is appointed in respect of the customer or any asset of the customer.

Customer Site Conditions

The customer shall arrange to supply water and electricity at all times during services provided at the customers site and in the event these are not supplied the customer shall be liable for all costs incurred by the supplier as a result

The customer is responsible for clearing the site of all obstructions, rubbish and other hindrances unless this is included in the supplier’s quotation

No allowances have been made by the supplier in any quotations or estimates for concealed obstructions. In the event these result in additional costs, delays or claims by third parties the customer fully indemnify the supplier for all costs, consequences and claims.

The customer at their expense is responsible for obtaining all permits required by the council or other authorities where applicable and shall fully indemnify the supplier from all actions and penalties as a result of failure to do so.

Delivery

Delay in delivery or completion shall not constitute a breach of contract.

Delivery shall take place when the supplier’s or the customer’s carrier takes possession of the goods in which event the carrier shall be deemed to be the customer’s agent. Unless otherwise agreed the customer shall be responsible for the cost of delivery of the goods. If the customer is unable to take delivery of the goods the supplier shall be entitled to charge for redelivery. Delivery of goods to a third party nominated by the customer is deemed to be delivery to the customer.

Neither party shall be liable for any default or delay due to any act of God, war, terrorism, industrial action, fire, flood, storm, tempest or other force majeure events beyond their control.

If the supplier, its employees or agents are required to enter any property during delivery or performance of the services, the supplier accepts no responsibility for any damage to that property or goods within it.

The customer shall not be relieved from any obligation to accept goods by reason of delay in delivery and in no event shall the supplier be responsible for any losses incurred by the customer from any delay in delivery or completion of service.

Risk & Insurance

All risks pass to the customer upon delivery as defined in the Delivery clause and it is the customer’s responsibility to arrange insurance for goods in transit as well as ex-delivery.

If the customer requests the supplier to deliver goods to unattended premises or to an unattended location they shall be left at the customer’s sole risk.

If any goods are damaged, destroyed or stolen during or after delivery and prior to payment being received by the supplier and ownership passing to the customer, the supplier is entitled to payment in full and for any other monies owed to the supplier.

In the event that the goods are damaged, destroyed or stolen during or after delivery and prior to payment being received by the supplier, the supplier is entitled to the insurance proceeds for the goods. Presenting these terms to the customer’s insurers is sufficient evidence of the supplier’s rights to the insurance proceeds.

Warranty

The warranty terms are provided on a case by case basis due to the nature of the goods and services provided.

The warranty terms will be agreed prior to the commencement of the rebuild and/or service.

Defects

For any defect claims the supplier has agreed to accept, the supplier’s liability is limited to either (at the supplier’s discretion) replacing the goods/services or repairing them except where the customer has acquired the goods/services as a consumer within the meaning of the Commonwealth Competition & Consumer Act 2010, Trade Practices Act 1974 or the Fair Trading Acts.

Supplier’s Liability

The supplier’s maximum liability for any claim will not exceed the price received by the supplier in respect of the goods/services purchased by the customer. The supplier shall not be liable for any further payments either to the customer or to any other parties for any damages, indirect and/or consequential loss and/or expense.

Default, Interest, Costs and Penalties

The supplier shall be entitled to charge interest at two and a half percent (2.5%) a month from the day the account becomes overdue and compounded monthly until all outstanding monies have been paid in full.

If an account is more than thirty days overdue, administration costs of twenty five dollars ($25) or ten percent (10%) (whichever is greater) up to a maximum of two hundred and fifty dollars ($250.00) shall be charged to the customer and payable immediately.

The customer shall indemnify and reimburse the supplier for all costs and disbursement in collecting outstanding debts from the customer which shall include dishonour fees, full legal costs, collection agency costs, investigators costs, court, judgement enforcement and bailiff fees, search agents costs, time, travel and all other collection costs.

If the customer breaches any of its obligations the supplier may exercise all its rights plus suspend or terminate the supply of goods/services. The supplier will not be liable for any loss or damage suffered by any parties as a result of exercising its rights.

The supplier may sell any property of the customer which it holds to offset monies owed by the customer and will not be liable for any alleged loss as a consequence of such a sale. The supplier is only liable to account for any balance from the sale proceeds after all outstanding debts and costs of sale have first been met.

Security for Payment

If the supplier allows the customer extra time to pay monies or perform obligations for which no guarantees or other securities have been provided, the supplier may require security for payment including a guarantee by any director or other persons connected with the customer for past as well as future indebtedness.

In the event the customer breaches these terms the customer agrees that the supplier may at its sole discretion register a caveat on the customer in which the supplier is undertaking the contractual work with full rights to recover all costs and amounts owing.

Any requirement for security or guarantees is without prejudice to other rights or remedies the supplier may have and does not affect the reservation of title in goods/services supplied to the customer.

Personal Property Securities Act 2009 (“PPSA”)

If any clauses in these terms contravene any provisions in the PPSA 2009 or any amendments thereto such clause or clauses shall be deleted without affecting the validity of the remaining clauses of these terms. The following definitions of the PPSA and amendments thereto apply to the supplier’s terms of trade:

i.     Financing statement. This has the same meaning as defined by the PPSA;

ii.     Financing change statement. This has the same meaning as defined by the PPSA;

iii.     Security agreement. This has the same meaning in these terms of trade as the security agreement created between the customer and the supplier in the PPSA;

iv.     Security interest. This has the same meaning as defined by the PPSA.

The customer hereby assents that by placing orders for goods/services with the supplier the customer acknowledges and agrees that the supplier’s terms of trade:

i.     Constitute a security agreement for the purposes of the PPSA in such goods/services;

ii.     Create a security interest in such goods/services and in goods/services previously supplied which have not been fully paid for and for goods/services that will be supplied in the future.

The customer agrees to:

i.     Sign and provide without delay any documents and/or accurate information the supplier may require to register a financing statement or financing change statement concerning a security interest on the Personal Property Securities Register and to register any other document required to be registered by the PPSA and to correct any defects in such documents or information.

ii.     Indemnify and reimburse the supplier for all costs for a financing statement or financing change statement on the Personal Property Securities Register or releasing goods/services charged thereby;

iii.     Not to register a financing change statement in respect of a security interest on goods/services supplied by the supplier that have not been fully paid for without the prior written consent of the supplier;

iv.     Not to register, or permit a third party to register, a financing statement or a financing change statement concerning goods/services supplied by the supplier that have not been fully paid for without the prior written consent of the supplier;

v.     Promptly tell the supplier of any material change in its methods and policies of selling and/or reselling goods/services supplied by the supplier which would change the nature of proceeds of such sales.

With regard to sections 96, 115 and 125 of the PPSA, the supplier and the customer agree that these do not apply to any security agreements created by these terms and furthermore the customer waives its rights to receive notices under sections 95, 118, 121(4),

130, 132(3)(d) and 132(4) of the PPSA.

With regard to sections 142 & 143 of the PPSA the customer waives its rights as a grantor and/or a debtor under the PPSA.

With regard to section 157 of the PPSA, unless otherwise agreed in writing by the supplier the customer waives its right to receive a verification statement.

The customer shall unconditionally approve any actions taken by the supplier under clauses 11.2 to 11.6.

The Commonwealth Competition & Consumer Act 2010 (“CCA”),Trade Practices Act 1974 (“TPA”) & Fair Trading Acts (“FTA”) These terms of trade are not intended to have the effect of contracting out of any provisions of the CCA, TPA, or FTA except where permitted by law. If the customer buys goods/services as a consumer these terms of trade shall be subject to protection of consumers’ rights legislation and shall not affect the consumer’s statutory rights. If any clauses in these terms of trade contravene any provisions in these acts such clause or clauses shall be deleted without affecting the validity of the remaining clauses of these terms of trade.

Passing of Title/Reservation of Title in Goods/Services

Notwithstanding the delivery of goods/services, title to all goods/services sold to the customer remains with the supplier until all monies have been paid in full and the customer has fulfilled all its obligations to the supplier.

Until all events in 13.1 have occurred, title in the goods/services remains with the supplier as unpaid vendor and the customer may only hold the goods as bailee for the supplier’s benefit. Whilst holding the goods as bailee, the customer shall ensure they remain identifiable as the supplier’s goods and safely store and insure them for loss or damage for the supplier’s benefit.

The supplier and/or any representative of the supplier may as the invitee of the customer enter upon or into the land and/or premises where the supplier may believe the supplier’s goods are stored to inspect and/or remove and/or sell them and the supplier shall not be liable for any loss or damage alleged as a consequence of such inspection and/or removal.

For goods on which title has not passed to the customer, the supplier can give notice to the customer to return them, or any part of them, to the supplier if the customer’s obligations under these terms of trade have not been fulfilled.

The customer will not charge the goods/services in any way or grant or otherwise give any interest in the goods/services until clean title passes to the customer.

The supplier can issue proceedings to recover the price of the goods/services sold even if ownership of the goods/services has not passed to the customer.

Set Off

The supplier shall be entitled to set off against any monies owed to the customer an amount equal to the total of all monies at such time then owed by the customer or on the customer’s behalf to the supplier.

The supplier shall be entitled to apply any monies received from or on behalf of the customer to any and all amounts owed by the customer as it sees fit and the customer waives any rights of notification of any such allocation.

Intellectual Property and Confidential Information

Unless otherwise agreed in writing all intellectual property rights in the supplier’s goods/services remain with the supplier.

No Waiver

No waiver by the supplier of any rights or provisions of these terms shall at any time be deemed or implied to limit or exclude any of the supplier’s rights against the customer under these terms.

Privacy Act

The customer and/or the guarantor/s agree and consent to the supplier obtaining and exchanging credit information from the customer’s suppliers or other parties nominated by the customer and for the supplier to obtain reports and other information from credit reporting agencies and other sources on personal credit information about the customer and/or guarantors in relation to credit provided by the supplier and the ability of the customer to pay its bills and perform its other obligations as and when they fall due.

Termination

The supplier can terminate any agreements with the customer and/or orders from the customer without notice if the customer breaches any conditions of these terms or becomes or is in jeopardy of becoming insolvent (or dies if the customer is a natural person) and all outstanding monies owing to the supplier shall be payable immediately, including monies for work done and/or for contracts entered into with other parties for the benefit of or on behalf of the customer.

Governing Law and Changes to Terms of Trade

The laws of Australia apply to these terms and to any contracts or other agreements between the supplier and the customer and are subject to the jurisdiction of the courts of Victoria.

The supplier reserves the right to alter these terms and such changes will be effective from the date these changes are notified to the customer. The customer will be deemed to have accepted such changes upon placing further orders with the supplier.

The supplier may license or sub-contract all or any part of its rights and obligations without the customer’s consent.

Notices

Notices from the supplier to the customer are served when delivered by hand, sent by mail, document exchange, facsimile or email and shall be treated as given when: if delivered by hand when delivered; if sent by mail or document exchange, 48 hours after posting; if sent by fax, and/or email when the fax machine confirms transmission; or when the email system confirms transmission. A notice given after 5pm and/or on a day which is not a Business Day is treated as given on the next following Business Day.

Disputes

If a dispute arises between the supplier and the customer and a solution thereto is contained in these terms of trade then such solution shall be a binding full and final settlement of the dispute. If no solution to the dispute exists in these terms of trade and the dispute cannot otherwise be resolved within 30 days from the date of the dispute arising then either party can refer the matter to a mediator. If neither party can agree on who should be the mediator then the dispute shall be referred to a mediator in accordance with the ‘Governing Law and Changes to Terms of Trade’ clause in these terms. The customer shall be liable for the full costs of the mediation and if this contravenes the Governing Law the parties will equally contribute to the costs of the mediation.

Validity

Should any clause or clauses of these terms be invalid for any reason then such clause or clauses or parts thereof shall be deleted without affecting the validity of the remaining portions of these terms.