Terms and Conditions of Trade
Terms and Conditions of Trade
Table Of Contents
- Errors and Omissions
- Change in Control
- Credit Accounts
- Purchase Orders
- Price and Payment
- Provision of the Works
- Practical Completion
- Design and Manufacture
- Installation and Testing
- Trade-In Equipment
- Client’s Responsibilities
- Product Specifications
- Underground Locations
- Compliance with Laws
- Personal Property Securities Act 2009 (“PPSA”)
- Security and Charge
- Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
- Intellectual Property
- Default and Consequences of Default
- Privacy Act 1988
- Employees of Seller
- Dispute Resolution
- Construction Contracts Act 2004
- Unpaid Seller’s Rights
- Service of Notices
- Force Majeure
- 1.1 “Contractor” means TFG Group Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of TFG Group Pty Ltd.
- 1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting the Contractor 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 part of a Trust, shall be bound in their capacity as a trustee; and
- (c) includes the Client’s executors, administrators, successors and permitted assigns.
- 1.3 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by the Contractor 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).
- 1.4 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between the Contractor and the Client in accordance with clause 7 below.
- 1.5 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
- 2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.
- 2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and the Contractor.
- 2.3 None of the Contractor’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Contractor in writing nor is the Contractor bound by any such unauthorised statements.
- 2.4 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2003 or any other applicable provisions of that Act or any Regulations referred to in that Act.
- 2.5 The Client warrants that they are acquiring the Materials for purposes other than for personal, domestic or household use.
3. Errors and Omissions
- 3.1 The Client acknowledges and accepts that the Contractor 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 Contractor 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 Contractor in respect of the Works.
- 3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
- 4.1 The Client shall give the Contractor 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 Contractor as a result of the Client’s failure to comply with this clause.
5. Credit Accounts
- 5.1 The Client acknowledges that the supply of Materials/Works on credit shall not take effect until the Client has completed a credit application with the Contractor and it has been approved with a credit limit established for the account.
- 5.2 In the event that the supply of Materials/Works request exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Contractor reserves the right to refuse delivery and/or request an alternative payment method.
- 5.3 All financial institutions’ duty, stamp duty and other government charges relating to the establishment and operation of the Client’s account will be debited to that account.
- 5.4 The Client acknowledges and accepts that any credit facility extended is for the Client’s use only any shall not be assigned, transferred or made available by the Client for the use by any other person or entity.
6. Purchase Orders
- 6.1 The Client acknowledges and agrees where the Client does not elect to control their purchases by a Purchase Order and/or a Letter of Authority, then all purchases made by Client and/or any other third party acting on behalf of the Client to which the Materials are charged to the Client’s credit account, shall remain at all times payable by the Client. All said notices of restrictions pertaining to purchases must be writing and will remain in place until such time as the Client revokes.
- 6.2 The Client agrees to notify the Contractor in writing immediately upon of the departure of the Client’s employee if an authorised account user. Where there is failure to notify the Contractor of such departures, then the Client acknowledges they will be bound by all purchase orders made by that account user.
- 6.3 A Purchase Order is to be supplied by the Client within seventy-two (72) hours from the Contractor’s request whether for Works or variations. Should the Client fail to comply with this clause, the Contractor shall be entitled to raise an invoice regardless which shall become due and payable as per clause 7.4.
7. Price and Payment
- 7.1 At the Contractor’s sole discretion the Price shall be either:
- (a) as indicated on invoices provided by the Contractor to the Client in respect of Works performed or Materials supplied; or
- (b) the Price as at the date of delivery of the Works according to the Contractor’s current price list; or
- (c) the Contractor’s quoted Price (subject to clause 8.2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days. Quotations are based on the Client advising of any legislative or regulatory requirements as per 11.1 prior to the quotation being prepared.
- 7.2 The Client acknowledges and accepts that a quotation is not an offer but an invitation to the Client to make an offer to contract with acceptance being as per clause 2.1 or on receipt of an order acknowledgement provided by the Contractor.
- 7.3 At the Contractor’s sole discretion a non-refundable deposit may be required.
- 7.4 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 Contractor, which may be:
- (a) on completion of the Works; or
- (b) by way of progress payments in accordance with the Contractor’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) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
- (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 fourteen (14) days following the date of any invoice given to the Client by the Contractor.
- 7.5 Payment may be made by 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 Contractor.
- 7.6 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 Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
- 7.7 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor 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.
- 8.1 In the event that the Client requests a variation, the Contractor will give the Client a written variation document detailing the Works, the Price, the estimated time to undertake the variation, and the likely delay, if any and require written acceptance of the variation before commencing work on the variation.
- 8.2 In the event that the Contractor requests a variation, the Contractor will, in writing state the reason for the variation, provide a full description of the variation, state any effect the variation will have on the contract, including but not limited to, the Price, completion date and whether further permits or authorisations are required, and shall require written acceptance by the Client of the variation before commencing Works on the variation. Variations may be requested where:
- (a) a variation to the Materials which are to be supplied is requested; or
- (b) a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
- (c) delays in manufacture or installation as a result of instructions/action/inaction or lack thereof from the Client, or the Client’s failure or inability to fulfil its obligations which result in increased costs to the Contractor; or
- (d) the Client discloses any legislative or regulatory requirements that Materials may be required to meet after the preparation of the quotation has been completed; or
- (e) additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the worksite, site specific conditions, availability of machinery, safety considerations, prerequisite work by any third party not being completed, etc.) which are only discovered on commencement of the Works; or
- (f) in the event of increases to the Contractor in the cost of Materials (including the increase in overseas transactions as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond the Contractor’s control or a variation to the cost of Materials and be subject to revision on the basis of forty percent (40%) of the movement in the Consumer Price Index (CPI) applicable to Materials; or
- (g) any changes in the cost of labour due to changes in any applicable labour award rates including increases in rates, a variation to the number of working hours prescribed for the Works and be subject to revision on the basis of sixty percent (60%) of the movement in the Average Weekly Ordinary Time Earnings (AWOTE) rate published by the Australian Bureau of Statistics or the affected industry award or Enterprise Bargaining Agreement (EBA); and
- (h) the Contractor shall advise the Client of any such variation arising from clause 1.1(f) or 1.1(g) above that may affect the value of any incomplete work to which the variation has been applied.
- 8.3 Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Client shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor 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 unless otherwise agreed to.
- 8.4 Notwithstanding clauses 8.2 above the Contractor may carry out any necessary additional Works without the Client’s agreement in the event of:
- (i) unforeseeable problems with the worksite which are only revealed when undertaking the Works which the Contractor considers should be rectified for the safe completion of the Works, for example, where the Client provides inaccurate plans, specifications (including CAD plans) or other information; or
- (j) any Works that the Contractor considers are required to be undertaken urgently and it is not reasonably practicable to obtain written acceptance from the Client before commencing the variation; or
- (k) the Contractor being instructed to undertake extra Works by any statutory authority.
9. Provision of the Works
- 9.1 Subject to clause 9.2 it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.
- 9.2 The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to:
- (a) delay by alterations to the contract; or
- (b) delay by changes to the specifications of the Materials to be supplied; or
- (c) any force majeure event as per clause 34; or
- (d) any failure by the Client to:
- (i) ensure that the Contractor has continuous unimpeded access to the worksite;
- (ii) ensure that the Client does not impede or delay the Contractor from carrying out the Works;
- (iii) make a selection; or
- (iv) have the worksite ready for the Works; or
- (v) notify the Contractor that the worksite is ready.
- 9.3 At the Contractor’s sole discretion, the cost of delivery is included in the Price.
- 9.4 The Contractor may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
- 9.5 Any time specified by the Contractor for delivery of the Works is an estimate only and the Contractor 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 Contractor is unable to supply the Works as agreed solely due to any action or inaction of the Client, then the Contractor 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.
- 9.6 Where the manufacture, dispatch or transport of the Materials is delayed by reason or as a result of any act, omission, default or request by or on behalf of the Client, the Client shall pay to the Contractor a proportion of the contract Price appropriate to the Works completed by the Contractor up to the date such payment is requested with any expenses or additional costs incurred by the Contractor as a result of such delay.
- 9.7 In the event of any delay as per clause 9.6 continues beyond a reasonable time or if the Client fails to take possession of the Materials within a reasonable time, the Contractor may treat the contract as terminated as per clause 25.
10. Practical Completion
- (a) Practical completion shall be deemed to mean the Works completed and deemed as being reasonably fit for occupation by the Contractor and shall pertain only to the Works quoted to the Client and being inclusive on any subsequent variations to that quote.
- (b) Sections of the Works will be handed over to the Client (or the Client’s representative) on the worksite when the applicable stage is completed. The Client shall accept such sections, which shall thereafter be at the Client’s risk and deemed as practically completed. Where the Client requests the Contractor to suspend or delay the Works prior to completion of any stage, the Contractor shall hand over that section to the Client as per this clause (b).
- (c) The level of test requirements may be reduced where agreed by both parties. The Client’s project manager or their authorised representative may grant Acceptance at any time notwithstanding that the Acceptance tests have not been carried out or passed.
- (d) Should the testing process be interrupted due to causes beyond the control and responsibility of the Contractor on two (2) consecutive occasions, the plant will be deemed to have passed the test and any further testing will be charged to the Client’s account.
11. Design and Manufacture
- 11.1 Unless otherwise stated:
- (a) Materials manufactured and supplied by the Contractor are manufactured in accordance with the Contractor’s designs and specifications current at the time of commence of production and with the health and safety, and other government regulations or requirements which are current in the State of Australia in which the Materials are manufactured;
- (b) it shall be the Client’s responsibility to advise the Contractor before the contract is formed of all requirement of the Client (including, but not limited to any government regulations or requirements relating to health and safety, manufacture, installation and use of the Materials in the State (where this differs from the State in which the Materials are being manufactured by the Contractor), or country of intended use; and
- (c) failure by the Client to comply with clause 11.1(b) above, the Client shall indemnify the Contractor of all costs, losses or damages that may result where the Materials and/or installations fail to comply with the required legislation or regulations that may apply;
- (d) Materials supplied (but not manufactured) by the Contractor are supplied in accordance with the manufacturer’s designs and specifications current at the time of supply and failure by the Client to advise of any legislative or regulatory requirements, the Contractor shall be indemnified from all costs, losses or damages that may arise.
12. Installation and Testing
- 12.1 The Client shall ensure that the Contractor has clean, safe, clear and free access to the worksite at all times to enable them to install, start up, commission and test the Materials and where necessary, possession of the worksite. The Contractor 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 Contractor. Any delays due to failure of the Client providing access as required may be subject to a standby charge being made by the Contractor.
- 12.2 It is the responsibility of the Client to ensure that access is suitable to accept the weight of hoists, cranes or other equipment as may be deemed necessary by the Contractor.
- 12.3 The Client shall be responsible for ensuring proper foundations are prepared to receive the Materials and provide protection for them.
- 12.4 Unless otherwise stated, the Client shall be responsible for all builders, masons, joiners, pipe fitters and electricians work and any alterations to existing equipment for use with Materials supplied by the Contractor.
- 12.5 Where required to complete the Works, the Client shall supply at the Client’s expense, all fuels, services and other facilities required for installation, starting up and commissioning of the Materials.
- 12.6 For installation of the Materials, the termination points for the connection of mechanical and electrical services will be as stated on the Contractor’s documentation. The Client shall be responsible for the supply of services at and connection to the termination points so designated.
- 12.7 Any product required for production tests (irrespective of being performed at the Contractor’s or Client’s premises) or for commissioning shall be supplied by the Client at the Client’s expense. All other costs of tests required by the Client over and above the Contractor’s normal tests shall be at the Client’s expense.
- 12.8 The Contractor shall provide the Client reasonable notice of any test. The Client or the Client’s agent is to be present at the time of testing to observe and receive a copy of the test results. Where acceptance of the Materials is subject to inspection and/or tests by the Client, should the Client fail to be present, then the Contractor shall deem this as being acceptance of the Materials by the Client.
13. Trade-In Equipment
- 13.1 In the event that the Contractor accepts a trade-in as part payment of purchases, Materials outright, then the Client acknowledges and warrants that they own the said equipment and that it is not in any subject to any security, charge, lien or hire purchase agreement. Ownership of the equipment shall not pass until the Contractor has accepted delivery of the equipment.
- 13.2 The trade-in value shall be established on inspection, however should the condition of the equipment deteriorate between the time of inspection and delivery, the Contractor shall reserve the right to adjust the trade-in value to reflect such deterioration.
- 14.1 If the Contractor retains ownership of the Materials under clause 19 then:
- (a) where the Contractor 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. Delivery of the Materials shall be deemed to have taken place immediately at the time that either:
- (i) Materials for delivery and installation are assembled in position and are ready for connection to the power and other services specified;
- (ii) Materials for delivery, installation and commission ae assembled in position, connected to the power and other services specified and are ready for commercial use by the Client;
- (iii) Materials for delivery reach the nominated destination. Unloading of the Materials shall be the Client’s responsibility unless otherwise specified;
- (iv) Materials sold ex-works are handed over to the carrier by the Contractor. The provision by the Contractor of engineer’s services to start up and/or commission Materials where so specified following completion of installation shall not affect the operation of this clause.
- (b) where the Contractor is to both supply and install Materials then the Contractor 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.
- 14.2 Notwithstanding the provisions of clause 14.1 if the Client specifically requests the Contractor to leave Materials outside the Contractor’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.
- 14.3 The plans, specifications (including CAD plans) and other information provided by the Client to the Contractor are accurate. The Client acknowledges and agrees that in the event that any plans, specifications (including CAD plans) or information provided by the Client is inaccurate:
- (a) the Contractor accepts no responsibility or liability for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information;
- (b) the Contractor is entitled to suspend or terminate the supply of Materials or Works to the Client if there is a material change to the scope of Works as a result of inaccurate plans, specifications or other information;
- (c) the Client shall be liable for the Contractor’s costs of de-mobilisation or re-mobilisation of any plant, equipment or staff to or from the worksite, upon the re-commencement of the Works at the worksite, if applicable; and
- (d) the Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
- 14.4 Where the Contractor 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 structurally and/or mechanically sound and in a serviceable state as required and will sustain the installation and work incidental thereto and the Contractor shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
- 14.5 The Client acknowledges that the Contractor is only responsible for parts that are replaced by the Contractor and that in the event that other parts/Materials, subsequently fail, the Client agrees to indemnify the Contractor against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising.
- 14.6 Any advice, recommendation, information, assistance or service provided by the Contractor in relation to Materials or Works supplied is given in good faith, is based on the Contractor’s own knowledge and experience and shall be accepted without liability on the part of the Contractor and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Materials or Works.
- 14.7 The Client acknowledges that Materials supplied may exhibit variations in shade, colour, texture, surface and finish. The Contractor will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
- 14.8 Where the Client has supplied materials for the Contractor to complete the Works, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in those materials. The Contractor shall not be responsible for any defects in the Works, any loss or damage howsoever arising from the use of materials supplied by the Client.
- 14.9 The Client acknowledges that where any surface finish (including but not limited to anodised, galvanised, zinc-plated, powder-coated or painted) has been selected, slight colour variation may occur between the main unit frame and any installation trims used due to the difference in raw materials available and manufacturing standards and tolerances shall not deemed to be a defect in the Materials.
- 14.10 The Client acknowledges that where an anodised surface finish has been selected, slight colour variation may occur between a main unit frame and any installation trims used due to the difference in aluminium or other alloys available and manufacturing standards and tolerances shall not deemed to be a defect in the Materials.
- 14.11 The Client acknowledges and agree that where the Contractor has performed temporary repairs or welding of joins or metal tears, that:
- (a) the Contractor offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
- (b) the Contractor will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair; and
- (c) the Contractor shall not be held liable for any losses or damages resulting from the welding being misused.
- 14.12 The Client acknowledges that capabilities/water tanks construction, fabricated or modified are suitable for capabilities/water only and the Contractor shall reserve the right to dismiss any warranty claim where other liquids have been stored or used in the tank.
- 14.3 The Client acknowledges that Materials supplied may:
- (a) fade or change colour over time; and
- (b) expand, contract or distort as a result of exposure to heat, cold, weather; and
- (c) mark or stain if exposed to certain substances; and
- (d) be damaged or disfigured by impact or scratching.
- 14.4 Unless otherwise agreed to, the Contractor’s responsibility to commissioning of the Works shall be limited to ensure the Works comply with any specification supplied by the Client.
- 14.5 The Contractor may at its discretion notify the Client that it requires to store at the worksite Materials, fittings and appliances, or plant and tools required for the Works, in which event the Client shall supply the Contractor a safe, secure area for storage and shall take all reasonable efforts to protect all items so stored from possible destruction, theft or damage. In the event that any such items are destroyed, stolen or damaged then the cost of repair or replacement shall be the Client’s responsibility.
- 14.6 The Client agrees that the Contractor shall not be liable for any damage or loss including personal injury, death, (including but not limited to the failure of the Client to follow the Contractor’s safety, operation or maintenance instructions) or property loss due to any event beyond the Contractor’s control.
15. Client’s Responsibilities
- 15.1 It is the intention of the Contractor and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding to enable the Works to be undertaken (where in the Contractor’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.
- 15.2 It is the Client’s responsibility to:
- (a) ensure that the Contractor has continuous unimpeded access to the worksite;
- (b) ensure that the Client does not impede or delay the Contractor from carrying out the Works;
- (c) have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation;
- (d) provide a clean, potable capabilities/water supply for all washing, priming and testing of equipment;
- (e) supply power of a suitable rating to within eight (8) metres of the installation area;
- (f) provide temporary services including, but not limited to lighting, temporary distribution boards suitable for welding equipment and hand tools, capabilities/water, compressed air and ventilation;
- (g) worksite inductions as may be required; and
- (h) provide the following during the on-site programme process unless otherwise specified:
- (i) changing rooms for the labour force;
- (ii) wash room and toilets;
- (iii) canteen facilities if available; and
- (iv) medical and first aid facilities.
16. Product Specifications
- 16.1 The Client acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in the Contractor’s or supplier’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by the Contractor.
17. Underground Locations
- 17.1 Prior to the Contractor commencing any work the Client must advise the Contractor 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, capabilities/water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on worksite.
- 17.2 Whilst the Contractor will take all care to avoid damage to any underground services the Client agrees to indemnify the Contractor 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 17.1.
18. Compliance with Laws
- 18.1 The Client and the Contractor 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.
- 18.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
- 18.3 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
- 19.1 The Contractor and the Client agree that ownership of the Materials shall not pass until:
- (a) the Client has paid the Contractor all amounts owing to the Contractor; and
- (b) the Client has met all of its other obligations to the Contractor.
- 19.2 Receipt by the Contractor 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.
- 19.3 It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 19.1:
- (a) the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Contractor on request.
- (b) the Client holds the benefit of the Client’s insurance of the Materials on trust for the Contractor and must pay to the Contractor 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 Contractor shall be sufficient evidence of the Contractor’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Contractor 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 Contractor and must pay or deliver the proceeds to the Contractor 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 Contractor and must sell, dispose of or return the resulting product to the Contractor as it so directs.
- (f) unless the Materials have become fixtures the Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Materials are kept and recover possession of the Materials.
- (g) the Contractor 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 Contractor.
- (i) the Contractor may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
20. Personal Property Securities Act 2009 (“PPSA”)
- 20.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
- 20.2 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 Contractor for Works – that have previously been supplied and that will be supplied in the future by the Contractor to the Client.
- 20.3 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 Contractor 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 20.3(a)(i) or 20.3(a)(ii);
- (b) indemnify, and upon demand reimburse, the Contractor 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 Contractor;
- (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 Contractor;
- (e) immediately advise the Contractor 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.
- 20.4 The Contractor 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.
- 20.5 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.
- 20.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
- 20.7 Unless otherwise agreed to in writing by the Contractor, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
- 20.8 The Client shall unconditionally ratify any actions taken by the Contractor under clauses 20.3 to 20.5.
- 20.9 Subject to any express provisions to the contrary (including those contained in this clause 20) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
21. Security and Charge
- 21.1 In consideration of the Contractor agreeing to supply the Materials, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
- 22.2 The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.
- 21.3 The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 21 including, but not limited to, signing any document on the Client’s behalf.
22. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
- 22.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify the Contractor 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 Contractor to inspect the Materials or to review the Works provided. The Client shall be deemed to have waived the right to make any claim on the Contractor outside this time.
- 22.2 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).
- 22.3 The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
- 22.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor 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 Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.
- 22.5 If the Client is a consumer within the meaning of the CCA, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2.
- 22.6 If the Contractor is required to replace any Materials under this clause or the CCA, but is unable to do so, the Contractor may refund any money the Client has paid for the Materials.
- 22.7 If the Contractor 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 Contractor 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.
- 22.8 If the Client is not a consumer within the meaning of the CCA, the Contractor’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 Contractor at the Contractor’s sole discretion;
- (b) limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Materials;
- (c) otherwise negated absolutely.
- 22.9 Subject to this clause 22, returns will only be accepted provided that:
- (a) the Client has complied with the provisions of clause 1; and
- (b) the Contractor 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.
- 22.10 Notwithstanding clauses 22.1 to 22.9 but subject to the CCA, the Contractor 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 Contractor’s prior approval;
- (e) the Client failing to follow any instructions or guidelines provided by the Contractor;
- (f) fair wear and tear, any accident, or act of God.
- 22.11 In the case of second hand Materials, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Materials prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Contractor as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that the Contractor has agreed to provide the Client with the second hand Materials and calculated the Price of the second hand Materials in reliance of this clause 22.11.
- 22.12 The Contractor may in its absolute discretion accept non-defective Materials for return in which case the Contractor may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Materials plus any freight costs.
- 22.13 Notwithstanding anything contained in this clause if the Contractor is required by a law to accept a return then the Contractor will only accept a return on the conditions imposed by that law.
23. Intellectual Property
- 23.1 Where the Contractor 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 Contractor, and shall only be used by the Client at the Contractor’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Contractor.
- 23.2 The Client warrants that all designs, specifications or instructions given to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.
- 23.3 The Client agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Contractor has created for the Client and any images, photographs or videos of any documents, designs, drawings, plans or products which the Contractor has created for the Client.
24. Default and Consequences of Default
- 24.1 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 Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- 24.2 If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonour fees).
- 24.3 Further to any other rights or remedies the Contractor may have under this contract, if a Client has made payment to the Contractor, 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 Contractor under this clause 24 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.
- 24.4 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:
- (a) any money payable to the Contractor becomes overdue, or in the Contractor’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 Contractor;
- (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.
- 25.1 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Works or Materials to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause. The Client shall be liable for the Contractor’s costs of any de-mobilisation or re-mobilisation of any plant, equipment or staff to or from the worksite, upon the re-commencement of the Works at the worksite if applicable.
- 25.2 The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to the Contractor for Works already performed. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
- 25.3 In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).
- 25.4 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.
26. Privacy Act 1988
- 26.1 The Client agrees for the Contractor to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Contractor.
- 26.2 The Client agrees that the Contractor 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.
- 26.3 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.
- 26.4 The Client agrees that personal credit information provided may be used and retained by the Contractor 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.
- 26.5 The Contractor 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.
- 26.6 The information given to the CRB may include:
- (a) personal information as outlined in 26.1 above;
- (b) name of the credit provider and that the Contractor 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, 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 Contractor 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 Contractor, 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).
- 26.7 The Client shall have the right to request (by e-mail) from the Contractor:
- (a) a copy of the information about the Client retained by the Contractor and the right to request that the Contractor correct any incorrect information; and
- (b) that the Contractor does not disclose any personal information about the Client for the purpose of direct marketing.
- 26.8 The Contractor 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.
- 26.9 The Client can make a privacy complaint by contacting the Contractor via e-mail. The Contractor 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.
27. Employees of Seller
- 27.1 The Contractor reserves the right to charge the Client a fee equal to one (1) year of an employee’s annual wages or salary (inclusive of overtime and allowances) in the event that an employee or former employee of the Contractor is employed by the Client on a permanent basis within six (6) months of the date of delivery.
- 28.1 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
29. Dispute Resolution
- 29.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
- (a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
- (b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
30. Construction Contracts Act 2004
- 30.1 At the Contractor’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Construction Contracts Act 2004 may apply.
- 30.2 Nothing in this contract is intended to have the effect of contracting out of any provisions of the Construction Contracts Act 2004 of Western Australia, except to the extent permitted by the Act where applicable.
31. Unpaid Seller’s Rights
- 31.1 Where the Client has left any item with the Contractor for repair, modification, exchange or for the Contractor to perform any other service in relation to the item and the Contractor has not received or been tendered the whole of any monies owing to it by the Client, the Contractor shall have, until all monies owing to the Contractor are paid:
- (a) a lien on the item; and
- (b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
- 31.2 The lien of the Contractor shall continue despite the commencement of proceedings, or judgment for any monies owing to the Contractor having been obtained against the Client.
32. Service of Notices
- 32.1 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.
- 32.2 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.
- 33.1 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 (“Trust”) then whether or not the Contractor may have notice of the Trust, the Client covenants with the Contractor as follows:
- (a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
- (b) the Client has full and complete power and authority under the Trust 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 or 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 without consent in writing of the Contractor (the Contractor 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 property.
34. Force Majeure
- 34.1 Where the Contractor or the Client is either wholly or in part is unable by reason of, an Act of God, strike, lockout, or other interference with work, war, blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental restraint or embargo, unavailability or delay in availability of raw materials, or transport, inability or delay in obtaining government approvals, or any other cause which is not reasonably within the control of the affected party (i.e. a force majeure event), to carry out any obligation under this agreement and that party:
- (a) gives the other party prompt notice of that force majeure with full particulars of the probable extent to which it will be unable to perform, or be delayed in performing its obligations under this agreement; and
- (b) uses all possible diligence to remove that force majeure as soon as possible; then those obligations shall be suspended so far as it is affected by the force majeure event and during its continuance provided that:
- (c) an obligation to pay money is never excused by force majeure; and
- (d) the requirement that any force majeure event shall be removed with all possible diligence shall not require the settlement of strikes, lockouts, or other labour disputes, or claims or demands by any government, on terms contrary to the wishes of the party affected.
- 35.1 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 the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- 35.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, the state in which the Contractor has its principal place of business, and are subject to the jurisdiction of Perth Courts in Western Australia.
- 35.3 Subject to clause 22 the Contractor shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit, lost goodwill, lost resale profits, work stoppage, impairment of other goods, loss of product or raw materials) suffered by the Client arising out of a breach by the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
- 35.4 The Contractor may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
- 35.5 The Client cannot licence or assign without the written approval of the Contractor.
- 35.6 The Contractor 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 Contractor’s sub-contractors without the authority of the Contractor.
- 35.7 The Client agrees that the Contractor may amend these terms and conditions by notifying 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 Contractor to provide Works to the Client.
- 35.8 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.
- 35.9 This agreement constitutes the entire agreement between the parties with respect of the subject matter and contains all of the representations, undertakings, warranties, covenants and agreements of the parties. This agreement supersedes all prior negotiations, contracts, arrangements, understandings and agreements with respect to such subject matter. There are no representations, undertakings, warranties, covenants or agreements between the parties express or implied except as contained in this agreement.