Total Maintenance Solutions Pty Ltd – Terms & Conditions of Trade
1. Definitions
1.1 “Client” means the person/s, entities or any person acting
on behalf of and with the authority of the Client requesting
the Supplier to provide the Works as specified in any
proposal, quotation, order, invoice or other documentation,
and:
(a) if there is more than one Client, is a reference to each
Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner
jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their
capacity as a trustee; and
(d) includes the Client’s executors, administrators,
successors and permitted assigns.
1.2 “Confidential Information” means information of a
confidential nature whether oral, written or in electronic form
including, but not limited to, this Contract, either party’s
intellectual property, operational information, know-how,
trade secrets, financial and commercial affairs, Contracts,
client information (including but not limited to, “Personal
Information” such as: name, address, D.O.B, occupation,
driver’s license details, electronic contact (email, Facebook
or Twitter details), medical insurance details or next of kin
and other contact information (where applicable), previous
credit applications, credit history) and pricing details.
1.3 “Contract” means the terms and conditions contained
herein, together with any quotation, order, invoice or other
document or amendments expressed to be supplemental to
this Contract.
1.4 “Cookies” means small files which are stored on a user’s
computer. They are designed to hold a modest amount of
data (including Personal Information) specific to a particular
client and website and can be accessed either by the web
server or the client’s computer. If the Client does not wish
to allow Cookies to operate in the background when
using the Supplier’s website, then the Client shall have
the right to enable / disable the Cookies first by selecting
the option to enable / disable provided on the website,
prior to making enquiries via the website.
1.5 “GST” means Goods and Services Tax as defined within the
“A New Tax System (Goods and Services Tax) Act 1999”
(Cth).
1.6 “Intended Use” means a building product and the use
thereof, for which the building product is intended to be, or is
reasonably likely to be, associated with a building.
1.7 “Non-Conforming Building Product” means building
products that are regarded as Non-Conforming for an
Intended Use if, when associated with a building:
(a) the product is not, or will not be, safe; or
(b) does not, or will not, comply with the relevant regulatory
provisions; or
(c) the product does not perform, or is not capable of
performing, for the use to the standard it is represented
to conform by or for a person in the chain of
responsibility for the product.
1.8 “Price” means the Price payable (plus any GST where
applicable) for the Works as agreed between the Supplier
and the Client in accordance with clause 7 below.
1.9 “Supplier” means Total Maintenance Solutions Pty Ltd, its
successors and assigns or any person acting on behalf of
and with the authority of Total Maintenance Solutions Pty
Ltd.
1.10 “Works” means all Works (including consultation,
manufacturing and/or installation services) or Materials
supplied by the Supplier to the Client at the Client’s request
from time to time (where the context so permits the terms
‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.11 “Worksite” means the address nominated by the Client to
which the Materials are to be supplied by the Supplier.
2. Acceptance
2.1 The parties acknowledge and agree that:
(a) they have read and understood the terms and conditions
contained in this Contract; and
(b) the parties are taken to have exclusively accepted and are
immediately bound, jointly and severally, by these terms
and conditions if the Client places an order for or accepts
delivery of the Works.
2.2 In the event of any inconsistency between the terms and
conditions of this Contract and any other prior document or
schedule that the parties have entered into, the terms of this
Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this
Contract may only be amended in writing by the consent of
both parties.
2.4 The Client acknowledges and accepts that:
(a) the supply of Works on credit shall not take effect until the
Client has completed a credit application with the Supplier
and it has been approved with a credit limit established for
the account. In the event that the supply of Works
requested exceeds the Client’s credit limit and/or the
account exceeds the payment terms, the Supplier
reserves the right to refuse delivery; and
(b) Materials for accepted orders may be subject to
availability and if, for any reason, Materials are not or
cease to be available, the Supplier reserves the right to
substitute comparable Materials (or components of the
Materials) and vary the Price as per clause 7.2. In all such
cases the Supplier will notify the Client in advance of any
such substitution, and also reserves the right to place the
Client’s order and/or Works on hold, as per clause 8.2 until
such time as the Supplier and the Client agree to such
changes.
2.5 Any advice, recommendation, information, assistance, or
service provided by the Supplier in relation to the Materials or
Works supplied is given in good faith to the Client, or the
Client’s agent and is based on the Supplier’s own knowledge
and experience and shall be accepted without liability on the
part of the Supplier. Where such advice or recommendations
are not acted upon then the Supplier shall require the Client or
their agent to authorise commencement of the Works in
writing. The Supplier shall not be liable in any way whatsoever
for any damages or losses that occur after any subsequent
commencement of the Works. Accordingly, the Supplier offers
no warranty in regard to the aforementioned.
2.6 In the event that the Client requests the Supplier to provide the
Works urgently, that may require the Supplier’s staff to work
outside normal business hours (including, but not limited to,
working through lunch breaks, weekends and/or Public
Holidays) then the Supplier reserves the right to charge the
Client additional labour costs (penalty rates will apply at time
and a half normal rates), unless otherwise agreed between the
Supplier and the Client.
2.7 If the Supplier has been requested by the Client to diagnose a
fault that requires investigation, disassembly and/or testing, all
costs involved will be charged to the Client irrespective of
whether or not the repair goes ahead.
2.8 Electronic signatures shall be deemed to be accepted by
either party providing that the parties have complied with
Section 9 of the Electronic Transactions (Victoria) Act 2000 or
any other applicable provisions of that Act or any Regulations
referred to in that Act.
3. Authorised Representatives
3.1 The Client acknowledges that the Supplier shall (for the
duration of the Works) liaise directly with one (1) authorised
representative, and that once introduced as such to the
Supplier, that person shall have the full authority of the Client
to order any Materials, Works and/or to request any variation
thereto on the Client’s behalf. The Client accepts that they will
be solely liable to the Supplier for all additional costs incurred
by the Supplier (including the Supplier’s profit margin) in
providing any Materials, Works or variation/s requested
thereto by the Client’s duly authorised representative.
4. Errors and Omissions
4.1 The Client acknowledges and accepts that the Supplier shall,
without prejudice, accept no liability in respect of any alleged
or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the
Supplier in the formation and/or administration of this
Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or
electronic) supplied by the Supplier in respect of the
Works.
4.2 In circumstances where the Client is required to place an order
for Materials, in writing, or otherwise as permitted by these
terms and conditions, the Client is responsible for supplying
correct order information such as, without limitation,
measurements and quantity, when placing an order for
Materials (whether they are made to order Materials or not)
(“Client Error”). The Client must pay for all Materials it orders
from the Supplier notwithstanding that such Materials suffer
from a Client Error and notwithstanding that the Client has not
taken or refuses to take delivery of such Materials. The
Supplier is entitled to, at its absolute discretion to waive its
right under this sub-clause in relation to Client Errors.
5. Change in Control
5.1 The Client shall give the Supplier not less than fourteen (14)
days prior written notice of any proposed change of ownership
of the Client and/or any other change in the Client’s details
(including but not limited to, changes in the Client’s name,
address, contact phone or fax number/s, change of trustees,
or business practice). The Client shall be liable for any loss
incurred by the Supplier as a result of the Client’s failure to
comply with this clause.
6. Credit Card Information
6.1 The Supplier will:
(a) keep the Client’s personal details, including credit card
details for only as long as is deemed necessary by the
Supplier;
(b) not disclose the Client’s credit card details to any third
party; and
(c) not unnecessarily disclose any of the Client’s personal
information, except is accordance with the Privacy Act
(clause 20) or where required by law.
6.2 The Client expressly agrees that, if pursuant to this Contract,
there are any unpaid charges, other amounts due and
outstanding by the Client, the Supplier is entitled to
immediately charge the Client’s nominated credit card for
these amounts, and is irrevocably authorised to complete any
documentation and take any action to recover from the credit
card issuer any and all amounts which may be due by the
Client pursuant to the terms of this Contract.
7. Price and Payment
7.1 At the Supplier’s sole discretion, the Price shall be either:
(a) as indicated on invoices provided by the Supplier to the
Client in respect of Works performed or upon placement
if an order for the Materials; or
(b) the Supplier’s quoted Price (subject to clause 7.2) which
shall be binding upon the Supplier provided that the Client
shall accept the Supplier’s quotation in writing within thirty
(30) days.
7.2 The Supplier reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is
requested; or
(b) if a variation to the Works originally scheduled (including
any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery
of hidden or unidentifiable difficulties (including, but not
limited to, poor weather, limitations to accessing the
Worksite, obscured building/Worksite defects, incorrect
measurements, plans and/or specifications provided by
the Client, as a result of delays from third party suppliers,
safety considerations (discovery of asbestos, etc.),
prerequisite work by any third party not being completed,
lack of required utilities, remedial work required due to
existing workmanship being of a poor quality or noncompliant to the building code, hard rock barriers below
the surface, iron reinforcing rods in concrete or hidden
pipes, moisture, and wiring in walls, etc.) which are only
discovered on commencement of the Works; or
(d) as a result of an increase in the Supplier’s costs due to
changes in statutory, government, or local body charges,
taxes, levies, etc. with respect to the Works, increases to
the Supplier in the cost of labour or Materials or due to
relevant industry awards (e.g. Worksite allowance and
severance pay), which are outside the control of the
Supplier.
7.3 Variations will be charged for on the basis of the Supplier’s
quotation, and will be detailed in writing, and shown as
variations on the Supplier’s invoice. The Client shall be
required to respond to any variation submitted by the Supplier
within ten (10) working days. Failure to do so will entitle the
Supplier to add the cost of the variation to the Price. Payment
for all variations must be made in full at the time of their
completion.
7.4 At the Supplier’s sole discretion, a reasonable non-refundable
deposit may be required upon placement of an order for
Materials, in accordance with any quotation provided by the
Supplier or as notified to the Client prior to the placement of
an order for Materials.
7.5 Time for payment for the Works being of the essence, the
Price will be payable by the Client on the date/s determined by
the Supplier, which may be:
(a) on completion of the Works; or
(b) by way of progress payments in accordance with the
Supplier’s specified progress payment schedule. Such
progress payment claims may include the reasonable
value of authorised variations and the value of any
Materials delivered to the Worksite but not yet installed; or
(c) for approved account holders, thirty (30) days following
the date of any invoice; or
(d) the date specified on any invoice or other form as being
the date for payment; or
(e) failing any notice to the contrary, the date which is seven
(7) days following the date of any invoice given to the
Client by the Supplier.
7.6 Payment may be made by cash, cheque, bank cheque,
electronic/on-line banking, credit card (a surcharge may apply
per transaction), or by any other method as agreed to between
the Client and the Supplier.
7.7 The Supplier may in its discretion allocate any payment
received from the Client towards any invoice that the Supplier
determines and may do so at the time of receipt or at any time
afterwards. On any default by the Client the Supplier may reallocate any payments previously received and allocated. In
the absence of any payment allocation by the Supplier,
payment will be deemed to be allocated in such manner as
preserves the maximum value of the Supplier’s Purchase
Money Security Interest (as defined in the PPSA) in the
Materials.
7.8 The Client shall not be entitled to set off against, or deduct
from the Price, any sums owed or claimed to be owed to the
Client by the Supplier nor to withhold payment of any invoice
because part of that invoice is in dispute. Once in receipt of an
invoice for payment, if any part of the invoice is in dispute, then
the Client must notify the Supplier in writing within three (3)
business days, the invoice shall remain due and payable for
the full amount, until such time as the Supplier investigates the
disputed claim, no credit shall be passed for refund until the
review is completed. Failure to make payment may result in
the Supplier placing the Client’s account into default and
subject to default interest in accordance with clause 18.1.
7.9 Unless otherwise stated the Price does not include GST. In
addition to the Price, the Client must pay to the Supplier an
amount equal to any GST the Supplier must pay for any supply
by the Supplier under this or any other Contract for the sale of
the Materials. The Client must pay GST, without deduction or
set off of any other amounts, at the same time and on the
same basis as the Client pays the Price. In addition, the Client
must pay any other taxes and duties that may be applicable in
addition to the Price except where they are expressly included
in the Price.
8. Provision of the Works
8.1 Subject to clause 8.2 it is the Supplier’s responsibility to
ensure that the Works start as soon as it is reasonably
possible.
8.2 The Works’ commencement date will be put back and/or the
completion date extended by whatever time is reasonable in
the event that the Supplier claims an extension of time (by
giving the Client written notice) where completion is delayed
by an event beyond the Supplier’s control, including but not
limited to any failure by the Client to:
(a) make a selection; or
(b) have the Worksite ready for the Works; or
(c) notify the Supplier that the Worksite is ready.
8.3 Any time specified by the Supplier for delivery of the Works is
an estimate only and the Supplier will not be liable for any loss
or damage incurred by the Client as a result of delivery being
late. However, both parties agree that they shall make every
endeavour to enable the Works to be supplied at the time and
place as was arranged between both parties. In the event that
the Supplier is unable to supply the Works as agreed solely
due to any action or inaction of the Client, then the Supplier
shall be entitled to charge a reasonable fee for re-supplying
the Works at a later time and date, and/or for storage of the
Materials.
9. Risk
9.1 If the Supplier retains ownership of the Materials under clause
13 then:
(a) where the Supplier is supplying Materials only, all risk for
the Materials shall immediately pass to the Client on
delivery and the Client must insure the Materials on or
before delivery. The cost of delivery will be payable by the
Client in accordance with the quotation provided by the
Supplier to the Client, or as otherwise notified to the Client
prior to the placement of an order for the Materials.
Delivery of the Materials shall be deemed to have taken
place immediately at the time that the Materials are
delivered by the Supplier or the Supplier’s nominated
carrier to the Client’s nominated delivery address (even if
the Client is not present at the address); or
(b) where the Supplier is to both supply and install Materials
then the Supplier shall maintain a Contract works
insurance policy until the Works are completed. Upon
completion of the Works all risk for the Works shall
immediately pass to the Client.
9.2 Notwithstanding the provisions of clause 9.1 if the Client
specifically requests the Supplier to leave Materials outside
the Supplier’s premises for collection or to deliver the Materials
to an unattended location then such Materials shall always be
left at sole risk of the Client and it shall be the Client’s
responsibility to ensure the Materials are insured adequately
or at all. In the event that such Materials are lost, damaged or
destroyed then replacement of the Materials shall be at the
Client’s expense.
9.3 Where the Supplier is required to install the Materials the
Client warrants that the structure of the premises or equipment
in or upon which these Materials are to be installed or erected
is sound and will sustain the installation and work incidental
thereto and the Supplier shall not be liable for any claims,
demands, losses, damages, costs and expenses howsoever
caused or arising in connection with the installation and work
incidental thereto.
9.4 The Client warrants that any structures to which the Materials
are to be affixed are able to withstand the installation of the
Materials and that any plumbing or electrical connections
(including, but not limited to, meter boxes, pipes, couplings
and valves) are of suitable capacity to handle the Materials
once installed. If for any reason (including the discovery of
asbestos, defective or unsafe plumbing, electrical, or
dangerous access to crawl spaces) that the Supplier, or
employees of the Supplier, reasonably form the opinion that
the Client’s premises is not safe for the installation of Materials
to proceed then the Supplier shall be entitled to delay
installation of the Materials (in accordance with the provisions
of clause 8.2 above) until the Supplier is satisfied that it is safe
for the installation to proceed. The Supplier may at its sole
discretion agree to bring the premises up to a standard
suitable for installation to proceed but all such Works
undertaken and any additional Materials supplied shall be
treated as a variation and be charged for in addition to the
Price.
9.5 The Supplier shall be entitled to rely on the accuracy of any
plans, specifications and other information provided by the
Client. The Client acknowledges and agrees that in the event
that any of this information provided by the Client is inaccurate,
the Supplier accepts no responsibility for any loss, damages,
or costs however resulting from these inaccurate plans,
specifications or other information.
9.6 The Client acknowledges that Materials supplied may:
(a) exhibit variations in shade, colour, texture, surface, finish,
markings and may contain natural fissures, occlusions,
lines, indentations and may fade or change colour over
time;
(b) expand, contract or distort as a result of exposure to heat,
cold, weather;
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
9.7 The Client acknowledges that the presence of plant or tree
root growth and/or other blockages may indicate damaged
pipe work and therefore where the Supplier is requested to
merely clear such blockages, the Supplier can offer no
guarantee against reoccurrence or further damage. In the
event of collapse during the pipe clearing process, the
Supplier will immediately advise the Client of the same and
shall provide the Client with an estimate for the full repair of
the damaged pipe work.
9.8 The Client accepts and acknowledges that the Supplier
accepts no liability for any subsequent loss or damage
(including, but not limited to, internal water damage) to the
Client’s property which may occur during the cleaning process
where such loss or damage is due to pre-existing faults or
leaks.
9.9 The Client acknowledges and agrees that where the Supplier
has performed temporary repairs that:
(a) the Supplier offers no guarantee against the reoccurrence
of the initial fault, or any further damage caused; and
(b) the Supplier will immediately advise the Client of the fault
and shall provide the Client with an estimate for the full
repair required.
9.10 The Client acknowledges that the Supplier is only responsible
for parts that are replaced by the Supplier and does not at any
stage accept any liability in respect of previous services and/or
goods supplied by any other third party that subsequently fail
and found to be the source of the failure, the Client agrees to
indemnify the Supplier against any loss or damage to the
Materials, or caused by the Materials, or any part thereof
howsoever arising.
10. Worksite Access and Condition
10.1 The Supplier is not responsible for the removal of rubbish from
or clean-up of the building/construction Worksite/s. All rubbish
generated by the Supplier will be placed in a designated area
appointed by the Client but the responsibility of removal of
same is the Client or the Client’s agent, unless otherwise
agreed.
10.2 The Client shall ensure that the Supplier has clear and free
access to the Worksite at all times to enable them to undertake
the Works (including carrying out Worksite inspections, gain
signatures for required documents, and for the delivery and
installation of the Materials). The Supplier shall not be liable
for any loss or damage to the Worksite (including, without
limitation, damage to pathways, driveways and concreted or
paved or grassed areas) unless due to the negligence of the
Supplier.
10.3 The Client agrees to be present at the Worksite when and as
reasonably requested by the Supplier and its employees,
contractors and/or agents.
10.4 Worksite Inductions
(a) in the event the Client requires an employee or subcontractor of the Supplier to undertake a Worksite
induction during working hours, the Client will be liable to
pay the hourly charges for that period. If any induction
needs to be undertaken prior to the commencement date
then the Client shall be liable to pay the Supplier’s
standard (and/or overtime, if applicable) hourly labour
rate; or
(b) where the Supplier is in control of the Worksite, the Client
and/or the Client’s third-party contractors must initially
carry out the Supplier’s Health & Safety induction course
before access to the Worksite will be granted. Inspection
of the Worksite during the course of the Works will be by
appointment only and unless otherwise agreed, in such
an event the Client and/or third party acting on behalf of
the Client must at all times be accompanied by the
Supplier.
11. Underground Locations
11.1 Prior to the Supplier commencing any work the Client must
advise the Supplier of the precise location of all underground
services on the Worksite and clearly mark the same. The
underground mains and services the Client must identify
include, but are not limited to, electrical services, gas services,
sewer services, pumping services, sewer connections, sewer
sludge mains, water mains, irrigation pipes, telephone cables,
fibre optic cables, oil pumping mains, and any other services
that may be on the Worksite.
11.2 Whilst the Supplier will take all care to avoid damage to any
underground services the Client agrees to indemnify the
Supplier in respect of all and any liability claims, loss, damage,
costs and fines as a result of damage to services not precisely
located and notified as per clause 11.1.
12. Compliance with Laws
12.1 The Client and the Supplier shall comply with the provisions of
all statutes, regulations and bylaws of government, local and
other public authorities that may be applicable to the Works,
including any occupational health and safety laws (OHS)
relating or any other relevant safety standards or legislation
pertaining to the Works.
12.2 Both parties acknowledge and agree:
(a) to comply with the National Construction Code of Australia
(NCC) and the Building Act 1993, in respect of all
workmanship and building products to be supplied during
the course of the Works; and
(b) that Works will be provided in accordance with any current
relevant Australian/New Zealand Standards applicable.
12.3 Where the Client has supplied products for the Supplier to
complete the Works, the Client acknowledges that it accepts
responsibility for the suitability of purpose and use for their
products and the Intended Use and any faults inherent in those
products. However, if in the Supplier’s opinion, it is believed
that the materials supplied are Non-Conforming products and
will not conform with state and/or territory regulations, then the
Supplier shall be entitled, without prejudice, to halt the Works
until the appropriate conforming products are sourced and all
costs associated with such a change to the plans and design
will be invoiced in accordance with clause 7.2.
12.4 The Client shall obtain (at the expense of the Client) all
licenses and approvals that may be required for the Works.
13. Title
13.1 The Supplier and the Client agree that ownership of the
Materials shall not pass until:
(a) the Client has paid the Supplier all amounts owing to the
Supplier; and
(b) the Client has met all of its other obligations to the
Supplier.
13.2 Receipt by the Supplier of any form of payment other than
cash shall not be deemed to be payment until that form of
payment has been honoured, cleared or recognised.
13.3 It is further agreed that until ownership of the Materials passes
to the Client in accordance with clause 13.1:
(a) the Client is only a bailee of the Materials and unless the
Materials have become fixtures must return the Materials
to the Supplier on request;
(b) the Client holds the benefit of the Client’s insurance of the
Materials on trust for the Supplier and must pay to the
Supplier the proceeds of any insurance in the event of the
Materials being lost, damaged or destroyed;
(c) the production of these terms and conditions by the
Supplier shall be sufficient evidence of the Supplier’s
rights to receive the insurance proceeds direct from the
insurer without the need for any person dealing with the
Supplier to make further enquiries;
(d) the Client must not sell, dispose, or otherwise part with
possession of the Materials other than in the ordinary
course of business and for market value. If the Client sells,
disposes or parts with possession of the Materials then
the Client must hold the proceeds of any such act on trust
for the Supplier and must pay or deliver the proceeds to
the Supplier on demand;
(e) the Client should not convert or process the Materials or
intermix them with other goods but if the Client does so
then the Client holds the resulting product on trust for the
benefit of the Supplier and must sell, dispose of or return
the resulting product to the Supplier as it so directs;
Total Maintenance Solutions Pty Ltd – Terms & Conditions of Trade
(f) unless the Materials have become fixtures the Client
irrevocably authorises the Supplier to enter any premises
where the Supplier believes the Materials are kept and
recover possession of the Materials;
(g) the Supplier may recover possession of any Materials in
transit whether or not delivery has occurred;
(h) the Client shall not charge or grant an encumbrance over
the Materials nor grant nor otherwise give away any
interest in the Materials while they remain the property of
the Supplier; and
(i) the Supplier may commence proceedings to recover the
Price of the Materials sold notwithstanding that ownership
of the Materials has not passed to the Client.
14. Personal Property Securities Act 2009 (“PPSA”)
14.1 In this clause financing statement, financing change
statement, security agreement, and security interest has the
meaning given to it by the PPSA.
14.2 Upon assenting to these terms and conditions in writing the
Client acknowledges and agrees that these terms and
conditions constitute a security agreement for the purposes of
the PPSA and creates a security interest in all Materials and/or
collateral (account) – being a monetary obligation of the Client
to the Supplier for Works – that have previously been supplied
and that will be supplied in the future by the Supplier to the
Client.
14.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any
further information (such information to be complete,
accurate and up-to-date in all respects) which the Supplier
may reasonably require to:
(i) register a financing statement or financing change
statement in relation to a security interest on the
Personal Property Securities Register;
(ii) register any other document required to be registered
by the PPSA; or
(iii) correct a defect in a statement referred to in clause
14.3(a)(i) or 14.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Supplier for
all expenses incurred in registering a financing statement
or financing change statement on the Personal Property
Securities Register established by the PPSA or releasing
any Materials charged thereby;
(c) not register a financing change statement in respect of a
security interest without the prior written consent of the
Supplier;
(d) not register, or permit to be registered, a financing
statement or a financing change statement in relation to
the Materials and/or collateral (account) in favour of a third
party without the prior written consent of the Supplier;
(e) immediately advise the Supplier of any material change in
its business practices of selling the Materials which would
result in a change in the nature of proceeds derived from
such sales.
14.4 The Supplier and the Client agree that sections 96, 115 and
125 of the PPSA do not apply to the security agreement
created by these terms and conditions.
14.5 The Client hereby waives its rights to receive notices under
sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the
PPSA.
14.6 The Client waives its rights as a grantor and/or a debtor under
sections 142 and 143 of the PPSA.
14.7 Unless otherwise agreed to in writing by the Supplier, the
Client waives its right to receive a verification statement in
accordance with section 157 of the PPSA.
14.8 The Client shall unconditionally ratify any actions taken by the
Supplier under clauses 14.3 to 14.5.
14.9 Subject to any express provisions to the contrary (including
those contained in this clause 14), nothing in these terms and
conditions is intended to have the effect of contracting out of
any of the provisions of the PPSA.
15. Security and Charge
15.1 In consideration of the Supplier agreeing to supply the
Materials and/or provide its Works, the Client grants the
Supplier a security interest by way of a floating charge
(registerable by the Supplier pursuant to the PPSA) over all of
its present and after acquired rights, title and interest (whether
joint or several) in all other assets that is now owned by the
Client or owned by the Client in the future, to the extent
necessary to secure the repayment of monies owed under this
Contract for provision of the Materials and/or Works under this
Contract and/or permit the Supplier to appoint a receiver to the
Client in accordance with the Corporations Act 2001 (Cth).
15.2 The Client indemnifies the Supplier from and against all the
Supplier’s costs and disbursements including legal costs on a
solicitor and own client basis incurred in exercising the
Supplier’s rights under this clause.
15.3 In the event that the Client defaults or breaches any term of
this Contract and as a result, the security provided in clauses
13.1,14.2 and 15.1 as applicable, is deemed insufficient by the
Supplier to secure the repayment of monies owed by the Client
to the Supplier, the Client hereby grants the Supplier a security
interest as at the date of the default, by way of a charge, that
enables the right and entitlement to lodge a caveat over any
real property and or land owned by the Client now, or owned
by the Client in the future, to secure the performance of the
Client of its obligations under these terms and conditions
(including, but not limited to, the payment of any money.
16. Defects, Warranties and Returns, Competition and
Consumer Act 2010 (“CCA”)
16.1 The Client must inspect all Materials on delivery (or the Works
on completion) and must within fourteen (14) days of delivery
notify the Supplier in writing of any evident defect/damage,
shortage in quantity, or failure to comply with the description
or quote. The Client must notify any other alleged defect in the
Materials/Works as soon as reasonably possible after any
such defect becomes evident. Upon such notification the
Client must allow the Supplier to inspect the Materials or to
review the Works provided.
16.2 Under applicable State, Territory and Commonwealth Law
(including, without limitation the CCA), certain statutory
implied guarantees and warranties (including, without
limitation the statutory guarantees under the CCA) may be
implied into these terms and conditions (Non-Excluded
Guarantees).
16.3 The Supplier acknowledges that nothing in these terms and
conditions purports to modify or exclude the Non-Excluded
Guarantees.
16.4 Except as expressly set out in these terms and conditions or
in respect of the Non-Excluded Guarantees, the Supplier
makes no warranties or other representations under these
terms and conditions including but not limited to the quality or
suitability of the Materials/Works. The Supplier’s liability in
respect of these warranties is limited to the fullest extent
permitted by law.
16.5 If the Client is a consumer within the meaning of the CCA, the
Supplier’s liability is limited to the extent permitted by section
64A of Schedule 2.
16.6 If the Supplier is required to replace any Materials under this
clause or the CCA, but is unable to do so, the Supplier may
refund any money the Client has paid for the Materials.
16.7 If the Supplier is required to rectify, re-supply, or pay the cost
of re-supplying the Works under this clause or the CCA, but is
unable to do so, then the Supplier may refund any money the
Client has paid for the Works but only to the extent that such
refund shall take into account the value of Works and Materials
which have been provided to the Client which were not
defective.
16.8 If the Client is not a consumer within the meaning of the CCA,
the Supplier’s liability for any defect or damage in the Materials
is:
(a) limited to the value of any express warranty or warranty
card provided to the Client by the Supplier at the
Supplier’s sole discretion;
(b) limited to any warranty to which the Supplier is entitled, if
the Supplier did not manufacture the Materials;
(c) otherwise negated absolutely.
16.9 Subject to this clause 16, returns will only be accepted
provided that:
(a) the Client has complied with the provisions of clause 16.1;
and
(b) the Supplier has agreed that the Materials are defective;
and
(c) the Materials are returned within a reasonable time at the
Client’s cost (if that cost is not significant); and
(d) the Materials are returned in as close a condition to that
in which they were delivered as is possible.
16.10 Notwithstanding clauses 16.1 to 16.9 but subject to the CCA,
the Supplier shall not be liable for any defect or damage which
may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any
Materials;
(b) the Client using the Materials for any purpose other than
that for which they were designed;
(c) the Client continuing to use any Materials after any defect
became apparent or should have become apparent to a
reasonably prudent operator or user;
(d) interference with the Works by the Client or any third party
without the Supplier’s prior approval;
(e) the Client failing to follow any instructions or guidelines
provided by the Supplier;
(f) fair wear and tear, any accident, or act of God.
16.11 Notwithstanding anything contained in this clause if the
Supplier is required by a law to accept a return then the
Supplier will only accept a return on the conditions imposed by
that law.
16.12 Subject to clause 16.1, customised, or non-stocklist items or
Materials made or ordered to the Client’s specifications are not
acceptable for credit or return.
17. Intellectual Property
17.1 Where the Supplier has designed, drawn, written plans or a
schedule of Works, or created any products for the Client, then
the copyright in all such designs, drawings, documents, plans,
schedules and products shall remain vested in the Supplier,
and shall only be used by the Client at the Supplier’s
discretion. Under no circumstances may such designs,
drawings and documents be used without the express written
approval of the Supplier.
17.2 The Client warrants that all designs, specifications or
instructions given to the Supplier will not cause the Supplier to
infringe any patent, registered design or trademark in the
execution of the Client’s order and the Client agrees to
indemnify the Supplier against any action taken by a third party
against the Supplier in respect of any such infringement.
17.3 The Client agrees that the Supplier may (at no cost) use for
the purposes of marketing or entry into any competition, any
documents, designs, drawings, plans or products which the
Supplier has created for the Client.
18. Default and Consequences of Default
18.1 Interest on overdue invoices shall accrue daily from the date
when payment becomes due, until the date of payment, at a
rate of two and a half percent (2.5%) per calendar month (and
at the Supplier’s sole discretion such interest shall compound
monthly at such a rate) after as well as before any judgment.
18.2 If the Client owes the Supplier any money, the Client shall
indemnify the Supplier from and against all costs and
disbursements:
(a) incurred; and/or
(b) which would be incurred and/or
(c) for which by the Client would be liable;
in regard to legal costs on a solicitor and own client basis
incurred in exercising the Supplier’s rights under these terms
and conditions, internal administration fees, the Supplier’s
Contract fees owing for breach of these terms and conditions’,
including, but not limited to, contract default fees and/or
recovery costs (if applicable), as well as bank dishonour fees.
18.3 Further to any other rights or remedies the Supplier may have
under this Contract, if a Client has made payment to the
Supplier, and the transaction is subsequently reversed, the
Client shall be liable for the amount of the reversed
transaction, in addition to any further costs incurred by the
Supplier under this clause 18 where it can be proven that such
reversal is found to be illegal, fraudulent or in contravention to
the Client’s obligations under this Contract.
18.4 Without prejudice to the Supplier’s other remedies at law the
Supplier shall be entitled to cancel all or any part of any order
of the Client which remains unfulfilled and all amounts owing
to the Supplier shall, whether or not due for payment, become
immediately payable if:
(a) any money payable to the Supplier becomes overdue, or
in the Supplier’s opinion the Client will be unable to make
a payment when it falls due;
(b) the Client has exceeded any applicable credit limit
provided by the Supplier;
(c) the Client becomes insolvent or bankrupt, convenes a
meeting with its creditors or proposes or enters into an
arrangement with creditors, or makes an assignment for
the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise)
or similar person is appointed in respect of the Client or
any asset of the Client.
19. Cancellation
19.1 Without prejudice to any other remedies the parties may have,
if at any time either party is in breach of any obligation
(including those relating to payment) under these terms and
conditions (“the Breaching Party”) the other party may
suspend or terminate the supply or purchase of Materials
and/or Works to the other party, with immediate effect, by
providing the Breaching Party with written notice. Neither party
will be liable for any loss or damage the other party suffers
because one of the parties has exercised its rights under this
clause.
19.2 If the Supplier, due to reasons beyond the Supplier’s
reasonable control, is unable to deliver any Materials and/or
Works to the Client, the Supplier may cancel any Contract to
which these terms and conditions apply or cancel delivery of
Materials and/or Works at any time before the Materials and/or
Works are delivered by giving written notice to the Client. On
giving such notice the Supplier shall repay to the Client any
money paid by the Client for the Materials and/or Works. The
Supplier shall not be liable for any loss or damage whatsoever
arising from such cancellation.
19.3 The Client may cancel delivery of the Materials and/or Works
by written notice served within forty-eight (48) hours of
placement of the order. If the Client cancels delivery in
accordance with this clause 19.3, the Client will not be liable
for the payment of any costs of the Supplier, except where a
deposit is payable in accordance with clause 7.4. Failure by
the Client to otherwise accept delivery of the Materials and/or
Works shall place the Client in breach of this Contract.
19.4 Cancellation of orders for products made to the Client’s
specifications, or for non-stocklist items, will definitely not be
accepted once production has commenced, or an order has
been placed.
20. Privacy Policy
20.1 All emails, documents, images or other recorded information
held or used by the Supplier is Personal Information, as
defined and referred to in clause 20.3, and therefore
considered Confidential Information. The Supplier
acknowledges its obligation in relation to the handling, use,
disclosure and processing of Personal Information pursuant to
the Privacy Act 1988 (“the Act”) including the Part IIIC of the
Act being Privacy Amendment (Notifiable Data Breaches) Act
2017 (NDB) and any statutory requirements, where relevant in
a European Economic Area (“EEA”), under the EU Data
Privacy Laws (including the General Data Protection
Regulation “GDPR”) (collectively, “EU Data Privacy Laws”).
The Supplier acknowledges that in the event it becomes aware
of any data breaches and/or disclosure of the Client’s Personal
Information, held by the Supplier that may result in serious
harm to the Client, the Supplier will notify the Client in
accordance with the Act and/or the GDPR. Any release of
such Personal Information must be in accordance with the Act
and the GDPR (where relevant) and must be approved by the
Client by written consent, unless subject to an operation of
law.
20.2 Notwithstanding clause 20.1, privacy limitations will extend to
the Supplier in respect of Cookies where the Client utilises the
Supplier’s website to make enquiries. The Supplier agrees to
display reference to such Cookies and/or similar tracking
technologies, such as pixels and web beacons (if applicable),
such technology allows the collection of Personal Information
such as the Client’s:
(a) IP address, browser, email client type and other similar
details;
(b) tracking website usage and traffic; and
(c) reports are available to the Supplier when the Supplier
sends an email to the Client, so the Supplier may collect
and review that information (“collectively Personal
Information”)
If the Client consents to the Supplier’s use of Cookies on the
Supplier’s website and later wishes to withdraw that consent,
the Client may manage and control the Supplier’s privacy
controls via the Client’s web browser, including removing
Cookies by deleting them from the browser history when
exiting the site.
20.3 The Client agrees for the Supplier to obtain from a credit
reporting body (CRB) a credit report containing personal credit
information (e.g. name, address, D.O.B, occupation, driver’s
license details, electronic contact (email, Facebook or Twitter
details), medical insurance details or next of kin and other
contact information (where applicable), previous credit
applications, credit history) about the Client in relation to credit
provided by the Supplier.
20.4 The Client agrees that the Supplier may exchange information
about the Client with those credit providers and with related
body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client;
and/or
(c) to exchange information with other credit providers as to
the status of this credit account, where the Client is in
default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the
Client’s repayment history in the preceding two (2) years.
20.5 The Client consents to the Supplier being given a consumer
credit report to collect personal credit information relating to
any overdue payment on commercial credit.
20.6 The Client agrees that personal credit information provided
may be used and retained by the Supplier for the following
purposes (and for other agreed purposes or required by):
(a) the provision of Works; and/or
(b) analysing, verifying and/or checking the Client’s credit,
payment and/or status in relation to the provision of
Works; and/or
(c) processing of any payment instructions, direct debit
facilities and/or credit facilities requested by the Client;
and/or
(d) enabling the collection of amounts outstanding in relation
to the Works.
20.7 The Supplier may give information about the Client to a CRB
for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information
file about the Client including credit history.
20.8 The information given to the CRB may include:
(a) Personal Information as outlined in 20.3 above;
(b) name of the credit provider and that the Supplier is a
current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or
commercial credit (e.g. date of
commencement/termination of the credit account and the
amount requested);
(f) advice of consumer credit defaults (provided the Supplier
is a member of an approved OAIC External Disputes
Resolution Scheme), overdue accounts, loan repayments
or outstanding monies which are overdue by more than
sixty (60) days and for which written notice for request of
payment has been made and debt recovery action
commenced or alternatively that the Client no longer has
any overdue accounts and the Supplier has been paid or
otherwise discharged and all details surrounding that
discharge(e.g. dates of payments);
(g) information that, in the opinion of the Supplier, the Client
has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is
equal to or more than one hundred and fifty dollars ($150).
20.9 The Client shall have the right to request (by e-mail) from the
Supplier:
(a) a copy of the Personal Information about the Client
retained by the Supplier and the right to request that the
Supplier correct any incorrect Personal Information; and
(b) that the Supplier does not disclose any Personal
Information about the Client for the purpose of direct
marketing.
20.10 The Supplier will destroy Personal Information upon the
Client’s request (by e-mail) or if it is no longer required unless
it is required in order to fulfil the obligations of this Contract or
is required to be maintained and/or stored in accordance with
the law.
20.11 The Client can make a privacy complaint by contacting the
Supplier via e-mail. The Supplier will respond to that complaint
within seven (7) days of receipt and will take all reasonable
steps to make a decision as to the complaint within thirty (30)
days of receipt of the complaint. In the event that the Client is
not satisfied with the resolution provided, the Client can make
a complaint to the Information Commissioner at
www.oaic.gov.au
21. Service of Notices
21.1 Any written notice given under this Contract shall be deemed
to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in
this Contract;
(c) by sending it by registered post to the address of the other
party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the
other party as stated in this Contract (if any), on receipt of
confirmation of the transmission;
(e) if sent by email to the other party’s last known email
address.
21.2 Any notice that is posted shall be deemed to have been
served, unless the contrary is shown, at the time when by the
ordinary course of post, the notice would have been delivered.
22. Trusts
22.1 If the Client at any time upon or subsequent to entering in to
the Contract is acting in the capacity of trustee of any trust or
as an agent for a trust (“Trust”) then whether or not the
Supplier may have notice of the Trust, the Client covenants
with the Supplier as follows:
(a) the Contract extends to all rights of indemnity which the
Client now or subsequently may have against the Trust,
the trustees and the trust fund;
(b) the Client has full and complete power and authority under
the Trust or from the Trustees of the Trust as the case
may be to enter into the Contract and the provisions of the
Trust do not purport to exclude or take away the right of
indemnity of the Client against the Trust, the trustees and
the trust fund. The Client will not release the right of
indemnity or commit any breach of trust or be a party to
any other action which might prejudice that right of
indemnity;
(c) the Client will not during the term of the Contract without
consent in writing of the Supplier (the Supplier will not
unreasonably withhold consent), cause, permit, or suffer
to happen any of the following events:
(i) the removal, replacement or retirement of the Client
as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the
Trust; or
(iv) any resettlement of the trust fund or trust property.
23. Building and Construction Industry Security of Payment
Act 2002
23.1 At the Supplier’s sole discretion, if there are any disputes or
claims for unpaid Materials and/or Works then the provisions
of the Building and Construction Industry Security of Payment
Act 2002 may apply.
23.2 Nothing in this Contract is intended to have the effect of
contracting out of any applicable provisions of the Building and
Construction Industry Security of Payment Act 2002 of
Victoria, except to the extent permitted by the Act where
applicable.
24. General
24.1 Any dispute or difference arising as to the interpretation of
these terms and conditions or as to any matter arising herein,
shall be submitted to, and settled by, mediation before
resorting to any external dispute resolution mechanisms
(including arbitration or court proceedings) by notifying the
other party in writing setting out the reason for the dispute. The
parties shall share equally the mediator’s fees. Should
mediation fail to resolve the dispute, the parties shall be free
to pursue other dispute resolution avenues.
24.2 The failure by either party to enforce any provision of these
terms and conditions shall not be treated as a waiver of that
provision, nor shall it affect that party’s right to subsequently
enforce that provision. If any provision of these terms and
conditions shall be invalid, void, illegal or unenforceable, that
provision shall be severed from this Contract, and the validity,
existence, legality and enforceability of the remaining
provisions shall not be affected, prejudiced or impaired.
24.3 These terms and conditions and any Contract to which they
apply shall be governed by the laws of Victoria, and are
subject to the jurisdiction of the courts in that state. These
terms prevail over all terms and conditions of the Client (even
if they form part of the Client’s purchase order).
24.4 The Supplier may licence and/or assign all or any part of its
rights and/or obligations under this Contract without the
Client’s consent provided the assignment does not cause
detriment to the Client.
24.5 The Client cannot licence or assign without the written
approval of the Supplier.
24.6 The Supplier may elect to subcontract out any part of the
Works but shall not be relieved from any liability or obligation
under this Contract by so doing. Furthermore, the Client
agrees and understands that they have no authority to give
any instruction to any of the Supplier’s sub-contractors without
the authority of the Supplier.
24.7 The Client agrees that the Supplier may amend their general
terms and conditions for subsequent future Contracts with the
Client by disclosing such to the Client in writing. These
changes shall be deemed to take effect from the date on which
the Client accepts such changes, or otherwise at such time as
the Client makes a further request for the Supplier to provide
Works to the Client.
24.8 Neither party shall be liable for any default due to any act of
God, war, terrorism, strike, lock-out, industrial action, fire,
flood, storm, national or global pandemics and/or the
implementation of regulation, directions, rules or measures
being enforced by Governments or embargo, including but not
limited to, any Government imposed border lockdowns
(including, worldwide destination ports), etc., (“Force
Majeure”) or other event beyond the reasonable control of
either party. This clause does not apply to a failure by the
Client to make a payment to the Supplier, once the parties
agree that the Force Majeure event has ceased.
24.9 Both parties warrant that they have the power to enter into this
Contract and have obtained all necessary authorisations to
allow them to do so, they are not insolvent and that this
Contract creates binding and valid legal obligations on them.
24.10 The rights and obligations of the parties will not merge on
completion of any transaction under this Contract, and they
will survive the execution and delivery of any assignment or
other document entered, for the purpose of, implementing any
transaction under this Contract.
24.11 If part or all of any term of this Contract is or becomes invalid,
illegal or unenforceable, it shall be severed from this Contract
and shall not affect the validity and enforceability of the
remaining terms of this Contract.