Terms & Conditions

1. Definitions
1.1 “Contractor” means Elite Shower Repairs Pty Ltd, its successors and assigns
or any person acting on behalf of and with the authority of Elite Shower
Repairs 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 5 below.
1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New
Tax System (Goods and Services Tax) Act 1999” Cth.
2. Acceptance
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 The Client acknowledges that the supply of 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.
2.4 In the event that the supply of 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 alternate payment method.
2.5 Subject to clause 2.4, should the Client have any issues regarding payment
of the account in accordance with clause 5.5, the Client shall advise the
Contractor as soon as possible so a payment arrangement can be made.
2.6 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 2000 (NSW), or Section 14 of the Electronic Transactions
(Queensland) Act 2001, (whichever is applicable), or any other applicable
provisions of that Act or any Regulations referred to in that Act.
2.7 Any advice, recommendation, information, assistance or service provided by
the Contractor in relation to Works or Materials 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 Works
or Materials.
2.8 The Client acknowledges and accepts that if a defect is not covered by the
warranty as detailed in the Contractor’s Warranty Against Defects form and
the Contractor has been requested to return to the worksite and/or perform
repairs, that a call-out fee may be applicable and that any repairs will be
charged for at the Contractor normal hourly rate plus any Materials.
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. Price and Payment
5.1 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 Contractor’s quoted Price (subject to clause 5.2) which shall be
binding upon the Contractor provided that the Client shall accept the
Contractor’s quotation in writing within thirty (30) days.
5.2 The Contractor 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
conditions, limitations to accessing the site, latent site defects which
require remedial work, safety considerations and/or health hazards,
prerequisite work by any third party not being completed substantially or
at all or hidden pipes/wiring, etc.) which are only discovered on
commencement of the Works; or
(d) in the event of increases to the Contractor in the cost of labour or
materials which are beyond the Contractor’s control.
5.3 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.
5.4 At the Contractor’s sole discretion a non-refundable deposit may be required.
5.5 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 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 site but not yet installed; or
(c) seven (7) 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 seven (7) days
following the date of any invoice given to the Client by the Contractor.
5.6 Payment may be made by cash, 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.
5.7 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.
5.8 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.
6. Provision of the Works
6.1 Subject to clause 6.2 it is the Contractor’s responsibility to ensure that the
Works start as soon as it is reasonably possible.
6.2 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 any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify the Contractor that the site is ready.
6.3 At the Contractor’s sole discretion, the cost of delivery is included in the
Price.
6.4 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.
7. Risk
7.1 If the Contractor retains ownership of the Materials under clause 8 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) the Client or the Client’s nominated carrier takes possession of the
Materials at the Contractor’s address; or
(ii) the Materials are delivered by the Contractor or the Contractor’s
nominated carrier to the Client’s nominated delivery address (even if
the Client is not present at the address).
(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. The Contractor shall have
Public Liability Insurance of at least five million dollars ($5m); it is the
Client’s responsibility to ensure that they are similarly insured.
7.2 Notwithstanding the provisions of clause 7.1 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.
7.3 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 Works 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.
7.4 Where the Contractor gives advice or recommendations to the Client, or the
Client’s agent, including but not limited to, the suitability of the worksite, a
particular course of action or the condition of materials supplied by the Client
being inferior and such advice or recommendations are not acted upon then
the Contractor shall require the Client or their agent to authorise
commencement of the Works in writing. The Contractor shall not be liable in
any way whatsoever for any damages or losses that occur after any
subsequent commencement of the Works nor will such losses or damages be
deemed a defect.
7.5 The Contractor 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 Contractor accepts no responsibility
for any loss, damages, or costs however resulting from these inaccurate
plans, specifications or other information.
7.6 All potential waterproofing surfaces are subject to an inspection by the
Contractor prior to the commencement of the Works. In the event that the
surface is deemed unsuitable, then the Contractor reserves the right to halt
the Works until such time as it is agreed between the Contractor and the
Client as to the additional cost in further preparation of the surface in order to
make it fit for waterproofing. The additional cost shall be charged as a
variation to the quotation as per clause 5.2.
7.7 The Contractor shall not be liable for any defect in the Works if the Client
does not follow the Contractor’s recommendations, including the shower
should not be used for a minimum of twelve (12) hours.
7.8 The Client acknowledges that the Contractor is only responsible for Materials
that are repaired by the Contractor, and in the event that other components
subsequently fail, the Client agrees to indemnify the Contractor against any
loss or damage to the Works, or caused by the Materials, or any part thereof
howsoever arising.
7.9 Whilst the Contractor will take all due care during Works the Contractor will
not accept any responsibility for any existing tiles that are chipped, scratched,
cracked or break during provision of the Works.
7.10 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.
7.11 The Contractor accepts no responsibility for:
(a) any damage or defects in any Materials caused by movement, shrinkage
and/or interference of the said Materials;
(b) plumbing, tiling, shower screen or any other Works required for the
restoration or making good of any surface/area where any Works have
been carried out.
7.12 The Client agrees to indemnify the Contractor from any damage caused by
any other tradesman during and after the completion of the Works. If the
Client instructs the Contractor to rectify any damage caused by any other
tradesman, this will become a variation to the original quotation and will be
charged at the Contractor normal hourly rate.
8. Client’s Responsibilities
8.1 It is the intention of the Contractor and agreed by the Client that it is the
responsibility of the Client to:
(a) ensure that the Contractor has clear and free access to the worksite at all
times to enable them to undertake the Works. The Contractor shall not be
liable for any loss or damage to the site (including, without limitation,
damage to pathways, driveways and concreted or paved or grassed
areas) unless due to the negligence of the Contractor; and
(b) ensure that any surface requiring waterproofing is suitable for the
purpose. In the event that the Client requests the Contractor to prepare
the surface for waterproofing, then at the Contractor’s sole discretion a
fee shall be charged for the Works, and shall become immediately due
and payable; and
(c) ensure that no other trades men work on the membrane applied to the
surface, until the membrane is fully dried and cured to manufacturer’s
specifications. The Contractor shall not be liable for any costs, damages
or loss however arising from the Client’s failure to comply with this clause;
and
(d) ensure that tiling or adding backfill is delayed until the waterproof has
cured in accordance to the manufacturer’s specifications. Failure to
adhere to this clause will mean the Contractor shall not be liable for any
costs, damages or losing arising;
(e) ensure that subsequent works (such as tiling, etc.) must be completed in
a timely manner; any delay may deteriorate the membrane and may void
any applicable warranty; and
(f) provide the Contractor with a suitable free power source, and access to
water, lighting, and toilet facilities, if so required; and
(g) make the premises available on the agreed date and time and have all
areas clean and clear to enable scheduled work to be completed in
accordance with the schedule of installation. If installation is interrupted
due to the failure of the Client to adhere to the installation schedule
agreed to between the Contractor and the Client, any additional costs will
be invoiced to the Client as variation in accordance with clause 5.2.
8.2 The Contractor is not insured to remove furniture or fittings and will not do so,
nor is the Contractor licensed to move gas or electrical appliances.
9. Underground Locations
9.1 Prior to the Contractor commencing the Works the Client must advise the
Contractor of the precise location of all underground mains/services on the
site and clearly mark the same. The mains/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, communication cables, fibre optic cables, oil pumping
mains, and any other services that may be on site.
9.2 Whilst the Contractor will take all care to avoid damage to any 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 9.1.
10. Compliance with Laws
10.1 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, including any work health and safety (WHS)
laws and any other relevant safety standards or legislation.
10.2 The Client shall obtain (at the expense of the Client) all licenses, permits and
approvals that may be required for the Works.
11. Title
11.1 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.
11.2 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.
11.3 It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 11.1:
(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.
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security
agreement, and security interest has the meaning given to it by the PPSA.
12.2 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.
12.3 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 12.3(a)(i) or
12.3(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;
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.
12.4 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.
12.5 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.
12.6 The Client waives its rights as a grantor and/or a debtor under sections 142
and 143 of the PPSA.
12.7 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.
12.8 The Client shall unconditionally ratify any actions taken by the Contractor
under clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary (including those contained
in this clause 12) nothing in these terms and conditions is intended to have
the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 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).
13.2 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.
13.3 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 13 including, but not limited
to, signing any document on the Client’s behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010
(CCA)
14.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within forty-eight (48) hours 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.
14.2 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).
14.3 The Contractor acknowledges that nothing in these terms and conditions
purports to modify or exclude the Non-Excluded Guarantees.
14.4 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.
14.5 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.
14.6 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.
14.7 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.
14.8 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 Against Defects
form 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.
14.9 Subject to this clause 14, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 14.1; and
(b) the Contractor has agreed that the Materials are defective; and
14.10 Notwithstanding clauses 14.1 to 14.9 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.
(g) Building movement, physical damage and further substrate moving.
14.11 The warranty does not cover:
(a) Grouting or the use of silicone;
(b) the appearance of the shower;
(c) staining or discoloration over time directly or indirectly because of cleaning
products or personal care products;
(d) bleed back or leeching, growth of mould.
(e) variations in thickness or product application due to initial placement of
tiles.
(f) chipping, scratches, cracking or breakage of tiles, shower screen including
factory seals, factory, fittings, tapware resulting from the service.
(g) where a bath or shower over bath moves away from the walls.
(h) Building movement, physical damage and further substrate moving.
(i) leaks that are incorrectly diagnosed prior to the commencement of the
Works
14.12 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.
14.13 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.
14.14 Warranty period commences from date of service, provided signed invoice
returned within 7 days, paid in full including any overdue fees.
15. Intellectual Property
15.1 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.
15.2 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.
15.3 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.
16. Default and Consequences of Default
16.1 Interest on overdue invoices shall accrue daily from the date when payment
becomes due, until the date of payment, at a rate of thirty percent (30%) per
annum (and at the Contractor’s sole discretion such interest shall compound
monthly at such a rate) after as well as before any judgment.
16.2 Any overdue amounts will immediately incur an administration fee of $66. An additional $66 is payable every 7 days for overdue accounts.
16.3 Failure to pay all late fees void all warranties.
16.4 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).
16.5 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 16 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.
16.6 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.
17. Cancellation
17.1 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 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.
17.2 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.
17.3 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).
17.4 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.
18. Privacy Act 1988
18.1 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.
18.2 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.
18.3 The Client consents to the Contractor being given a consumer credit report to
collect overdue payment on commercial credit.
18.4 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.
18.5 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.
18.6 The information given to the CRB may include:
(a) personal information as outlined in 18.1 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).
18.7 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.
18.8 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.
18.9 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.
19. Other Applicable Legislation
19.1 At the Contractor’s sole discretion, if there are any disputes or claims for
unpaid Works and/or Materials then the provisions of the Building and
Construction Industry Security of Payments Act 1999 (NSW) or the Building
and Construction Industry Payments Act 2004 (QLD) may apply.
19.2 Nothing in this agreement is intended to have the effect of contracting out of
any applicable provisions of the Acts listed in clause 19.1 (each as
applicable), except to the extent permitted by the Act where applicable.
20. Service of Notices
20.1 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.
20.2 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.
21. Trusts
21.1 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.
22. General
22.1 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 enforce-ability of the remaining provisions shall
not be affected, prejudiced or impaired.
22.2 These terms and conditions and any contract to which they apply shall be
governed by the laws of either New South Wales or Queensland in which
state the Materials and/or Works were provided by the Contractor to the
Client however, in the event of a dispute that deems necessary for the matter
to be referred to a Magistrates or higher Court then jurisdiction will be subject
to the Parramatta Courts in the state of New South Wales in which the
Contractor has its principal place of business.
22.3 Subject to clause 14 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) 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).
22.4 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.
22.5 The Client cannot licence or assign without the written approval of the
Contractor.
22.6 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.
22.7 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.
22.8 Neither party shall be liable for any default due to any act of God, war,
terrorism, strike, lock-out, industrial action, fire, flood, storm or other event
beyond the reasonable control of either party.
22.9 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.

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