General Terms and Conditions and Security Agreement
IN CONSIDERATION of S & K Hall & Sons Pty Ltd t/as Hall Plumbing ABN 75 134 063 175 ACN 134 063 175 (hereinafter referred to as “HP”) providing commercial credit facilities to the party completing the application (hereinafter referred to as “the Customer”) annexed to these conditions:
- The Customer acknowledges and agrees that the following applies to and forms part of any contract for the supply of Goods and/or Services by HP and that these General Terms and Conditions take precedence over any terms and conditions which may be contained in any document provided by the Customer. Any request from the Customer to HP for the supply of Goods and / or Services shall constitute acceptance of these general terms and conditions.
- The Customer acknowledges that where the Customer consists of more than one party or entity, liability shall be joint and several.
- These terms and conditions, including any Credit Limits set by HP, are effective from the date of acceptance by the Customer and may be amended or superseded from time to time by notice given by HP by any means. Unless or except specifically excluded herein, HP and the Customer retain any rights and remedies available to them in any prior or pre-existing agreement.
- “Goods” and/or “Collateral” shall mean all goods and/or services supplied by HP to the Customer, or ordered by the Customer but not yet supplied, and includes goods and/or services described on any quotation, invoice, purchase order or any other document including any recommendations and advice and over which HP may intend to register a Security Interest.“Price” shall mean the cost of the Goods as referred to in HP’s price lists, prepared quotes & / or specific arrangements and shall be subject to change from time to time without notice.
1. Personal Property Securities Act (2009)
1.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA. 1.2 Upon assenting to these terms and conditions in writing the Customer 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 Customer to HP for Works – that have previously been supplied and that will be supplied in the future by HP to the Customer.
1.3 The Customer 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 HP 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 1.3(a)(i) or 1.3(a)(ii);
(b) indemnify, and upon demand reimburse, HP 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 HP;
(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 HP;
(e) immediately advise HP 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.
1.4 HP and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
1.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
1.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
1.7 Unless otherwise agreed to in writing by HP, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
1.8 The Customer shall unconditionally ratify any actions taken by HP under clauses 1.3 to 1.5.
1.9 Subject to any express provisions to the contrary (including those contained in this clause 1) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA
2.1The Customer agrees for HP 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 Customer in relation to credit provided by HP.
2.2 The Customer agrees that HP may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other
credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
2.3 The Customer consents to HP being given a consumer credit report to collect overdue payment on commercial credit.
2.4 The Customer agrees that personal credit information provided may be used and retained by HP 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 Customer’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 Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Works.
2.5 HP may give information about the Customer 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 Customer including credit history.
2.6 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 HP is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’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 Customer no longer has any overdue accounts and HP has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of HP, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
2.7 The Customer shall have the right to request (by e-mail) from HP:
(a) a copy of the information about the Customer retained by HP and the right to request that HP correct any incorrect
(b) that HP does not disclose any personal information about the Customer for the purpose of direct marketing.
2.8 HP will destroy personal information upon the Customer’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.
2.9 The Customer can make a privacy complaint by contacting HP via e-mail. HP 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
3. Price and Payment
3.1 At HP’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by HP to the Customer in respect of Works performed or Materials supplied; or
(b) HP’s quoted Price (subject to clause 4.2) which shall be binding upon HP provided that the Customer shall accept HP’s quotation in writing within thirty (30) days of the date of the quotation.
3.2 HP 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, limitations to site accessibility, availability of machinery, safety considerations, prerequisite work by a third party not completed or up to suitable standards, or hidden pipes, and wiring in walls, asbestos removal etc) which are only discovered on commencement of the Works; or
(d) In the event of increases to HP in the cost of labour or Materials which are beyond HP’s control.
3.3 Variations will be charged for on the basis of HP’s quotation, and will be detailed in writing, and shown as variations on HP’s invoice. The Customer shall be required to respond to any variation submitted by HP within ten (10) working days. Failure to do so will entitle HP 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.
3.4 At HP’s sole discretion a deposit of up to 50% of the quotation amount may be required prior to the commencement of any works.
3.5 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by HP, which may be:
(a) on completion of the Works; or
(b) before commencement of the Works; or
(c) by way of progress payments on significant works as determined by HP in accordance with HP’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
(d) to approved account holders, fourteen (14) days following the date of invoice given to the Customer by HP; or
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by HP.
3.6 Payment may be made by, cash, cheque, bank cheque, electronic/on-line banking, Credit card or by any other method as agreed to between the Customer and HP.
3.7 The Customer agrees to pay a fee of 1.5% to the value of the payment for any and all payments made by approved credit card.
3.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by HP nor to withhold payment of any invoice because part of that invoice is in dispute.
3.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to HP an amount equal to any GST HP must pay for any supply by HP under this or any other contract for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
4. Default and Consequences of Default
4.1 HP reserves the right to suspend or withdraw credit facilities for any reason and at any time without notice
4.2.Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 2.0% per calendar month and interest shall be calculated monthly at such a rate after as well as before any judgment.
4.3 If the Customer owes HP any money the Customer shall indemnify HP from and against all costs and disbursements incurred by HP in recovering the debt including but not limited to internal administration fees, collection agent commission, legal costs on a solicitor and own client basis, HP’s contract default fee, and bank dishonour fees.
4.4Further to any other rights or remedies HP may have under this contract, if a Customer has made payment to HP, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by HP under this clause 4 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.
4.5Without prejudice to HP’s other remedies at law HP shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to HP shall, whether or not due for payment, become immediately payable if:
(a) any money payable to HP becomes overdue, or in HP’s opinion the Customer will be unable to make a payment when it falls due;
(b )the Customer has exceeded any applicable credit limit provided by HP;
(c) the Customer 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 Customer or any asset of the Customer.
5. Security and Charge
5.1 In consideration of HP agreeing to supply the Materials, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
5.2 The Customer indemnifies HP from and against all HP’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising HP’s rights under this clause.
5.3 The Customer irrevocably appoints HP and each director of HP as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 5 including, but not limited to, signing any document on the Customer’s behalf.
6.1 HP and the Customer agree that ownership of the Materials shall not pass until:
(a) the Customer has paid HP all amounts owing to HP; and
(b) the Customer has met all of its other obligations to HP.
6.2. Receipt by HP 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.
6.3 It is further agreed that until ownership of the Materials passes to the Customer in accordance with clause 6.1:
(a) the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to HP on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for HP and must pay to HP 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 HP shall be sufficient evidence of HP’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with HP to make further enquiries.
(d) the Customer 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 Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for HP and must pay or deliver the proceeds to HP on demand.
(e) the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of HP and must sell, dispose of or return the resulting product to HP as it so directs.
(f) unless the Materials have become fixtures the Customer irrevocably authorises HP to enter any premises where HP believes the Materials are kept and recover possession of the Materials.
(g) HP may recover possession of any Materials in transit whether or not delivery has occurred.
(h) The Customer will not charge or grant an encumbrance on Materials or give away any interest in the Materials while they remain the property of HP.
(i) HP may start proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.
7.1 If HP retains ownership of the Materials under clause 6 then:
(a) where HP is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer 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 Customer or the Customer’s nominated carrier takes possession of the Materials at HP’s address; or
(ii) the Materials are delivered by HP or HP’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
(b) where HP is to both supply and install Materials then HP 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 Customer.
7.2 Notwithstanding the provisions of clause 7.1 if the Customer specifically requests HP to leave Materials outside HP’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 Customer and it shall be the Customer’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 Customer’s expense.
7.3 In conjunction with the provisions of clause 7.2 the client authorizes HP right to claim insurance monies direct from the client’s insurer.
7.4 The plans, specifications (including CAD plans) and other information provided by the Customer to HP are accurate. The Customer acknowledges and agrees that in the event that any plans, specifications (including CAD plans) or information provided by the Customer are inaccurate:
(a) HP accepts no responsibility or liability for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information;
(b) HP is entitled to suspend or terminate the supply of Materials or Works to the Customer if there is a material change to the scope of Works as a result of inaccurate plans, specifications or other information;
(c) the Customer shall be liable for HP’s costs of de-mobilisation or re-mobilisation of any plant, equipment or staff to or from the site, upon the re-commencement of the Works at the site, if applicable; and
(d) HP will not be liable to the Customer for any loss or damage the Customer suffers because HP has exercised its rights under this clause.
7.5 HP shall not be liable whatsoever for any loss or damage to the Works (including, but not limited to, painted surfaces) that is caused by any other tradesmen.
7.6 Where the Customer has supplied materials for HP to complete the Works, the Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. HP shall not be responsible for any defects in the materials, any loss or damage to the Works (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
7.7 The Customer acknowledges that Materials supplied may:
(a) Reduce in volume, 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; and
(e) show variations of texture and surface finish. Whilst HP will make every effort to match sales samples to the finished Materials HP accepts no liability whatsoever:
(i) where such samples differ to the finished Materials supplied; or
(ii) for any loss, damages or costs howsoever arising resulting from any texture and surface finish between different batches of product.
8.1 HP shall not be liable for any loss or damage, including consequential loss or damage, arising from delay in delivery or failure to deliver Goods, either whole or in part, due to circumstances beyond its control.
8.2 All times and dates specified for delivery are an estimate only.
8.3 The cost of delivery is in addition to the price as quoted.
8.4 goods will be delivered to the Customer by HP’s nominated carrier.
9. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
9.1 The Customer must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify HP in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer 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 Customer must allow HP to inspect the Materials or to review the Works provided.
9.2 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).
9.3 HP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
9.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, HP makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. HP’s liability in respect of these warranties is limited to the fullest extent permitted by law.
9.5 If the Customer is a consumer within the meaning of the CCA, HP’s liability is limited to the extent permitted by section 64A of Schedule 2.
9.6 If HP is required to replace any Materials under this clause or the CCA, but is unable to do so, HP may refund any money the Customer has paid for the Materials.
9.7 If HP 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 HP may refund any money the Customer 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 Customer which were not defective.
9.8 If the Customer is not a consumer within the meaning of the CCA, HP’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 Customer by HP at HP’s sole discretion;
(b) limited to any warranty to which HP is entitled, if HP did not manufacture the Materials;
(c) otherwise negated absolutely.
9.9.Subject to this clause 9, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 16; and
(b) HP has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Customer’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.
9.10 Notwithstanding clauses 9.1 to 9.9 but subject to the CCA, HP 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 Customer failing to properly maintain or store any Materials;
(b) the Customer using the Materials for any purpose other than that for which they were designed;
(c) the Customer 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 Customer or any third party without HP’s prior approval;
(e) the Customer failing to follow any instructions or guidelines provided by HP;
(f) fair wear and tear, any accident, or act of God.
9.11 HP may in its absolute discretion accept non-defective Materials for return in which case HP may require the Customer to pay a re-stocking and handling fee of up to 25% of the value of the returned Materials plus any freight costs.
9.12 Notwithstanding anything contained in this clause if HP is required by a law to accept a return then HP will only accept a return on the conditions imposed by that law
9.13 The Customer understands that if any goods supplied by HP are second hand the following will apply:
(a) HP are not responsible in any way for second hand goods sold by them, and, in particular, are not responsible for any faults or defects in any second hand goods purchased from the Company.
(b) The Customer understands and accepts that no warranty applies to second hand goods unless specified by HP.
(c) The Customer understands that the responsibility is theirs with respect to the safe use of second hand goods and to ensure all safety devices are installed and checked by a competent authority before they are used.
(d) The Customer understands when no safety devices are installed on second hand goods, it is their responsibility to make all necessary enquiries and as to whether such devices are needed and if needed, have installed in compliance with all standards of safety and ensuring the safety standards comply with the relevant occupational health and safety requirements.
(e) If the Customer sells the second hand goods purchased, they will advise the buyer that no warranty applies as stated in paragraphs 17.13 (b) above.
(f) HP shall not be liable for any defects, malfunctions, claims for loss, damage or injury of any kind whatsoever, whether to the Customer or to any party purchasing second hand goods from the Customer.
9.14 HP will provide a 3-month labour warranty on all small maintenance jobs such as leaking taps, blocked drains, leaking toilets etc. All other larger repairs are covered under a 12-month warranty
10.1 Without prejudice to any other remedies HP may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions HP may suspend or terminate the supply of Works to the Customer.
10.2 HP will not be liable to the Customer for any loss or damage the Customer suffers because HP has exercised its rights under this clause.
10.3 HP 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 Customer. On giving such notice HP shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to HP for Works already performed. HP shall not be liable for any loss or damage whatsoever arising from such cancellation.
10.4 In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by HP as a direct result of the cancellation (including, but not limited to, any loss of profits).
10.5 Cancellation of orders for products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
11. Intellectual Property
11.1 Where HP has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of HP. Under no circumstances may such designs, drawings and documents be used without the express written approval of HP.
11.2 The Customer warrants that all designs, specifications or instructions given to HP will not cause HP to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify HP against any action taken by a third party against HP in respect of any such infringement.
11.3. The Customer agrees that HP may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which HP has created for the Customer.
12.1 This agreement shall be construed in accordance with laws of the State of South Australia and, where applicable the Commonwealth of Australia and the Customer submits to the non-exclusive jurisdiction of the courts in South Australia.
12.2HP shall have exclusive right to nominate the Court in which any legal action is to be commenced and conducted.
13.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.
13.2 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 Customer and HP.
13.3 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 or any other applicable provisions of that Act or any Regulations referred to in that Act.
14. Errors and Omissions
14.1 The Customer acknowledges and accepts that HP 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 HP 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 HP in respect of the Works.
14.2.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 willful misconduct of HP; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.
15. Change in Control
15.1 The Customer shall give HP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by HP as a result of the Customer’s failure to comply with this clause.
16. Provision of the Works
16.1 Subject to clause 16.2 it is HP’s responsibility to ensure that the Works start as soon as it is reasonably possible.
16.2.The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that HP claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond HP’s control, including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify HP that the site is ready.
16.3 At HP’s sole discretion, the cost of delivery is included in the Price.
16.4 Any time specified by HP for delivery of the Works is an estimate only and HP will not be liable for any loss or damage incurred by the Customer 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 HP is unable to supply the Works as agreed solely due to any action or inaction of the Customer, then HP 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.
17. Customer Responsibilities
17.1.It is the intention of HP and agreed by the Customer that it is the responsibility of the Customer to provide and have erected scaffolding to enable the Works to be undertaken (where in HP’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.
17.2 The Customer agrees to remove any furniture, furnishings or personal goods from the vicinity of the Works and agrees that HP shall not be liable for any damage caused to those items through the Customer’s failure to comply with this clause.
The Customer shall ensure that HP has clear and free access to the site at all times to enable them to undertake the Works. HP 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 HP.
19. Compliance with Laws
19.1 The Customer and HP shall comply with the provisions of all statutes, regulations and by laws of government, local and other public authorities that may be applicable to the Works, including, but not limited to, applicable Building Codes.
19.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.
19.3 The Customer agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
20. Building and Construction Industry Security of Payments Act 2009
20.1 At HP’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payments Act 2009 may apply.
20.2 Nothing in this contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2009 of South Australia, except to the extent permitted by the Act where applicable.
21. Service of Notices
21.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
21.2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
22.1 If the Customer 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 HP may have notice of the Trust, the Customer covenants with HP as follows:
(a) the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer 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 Customer against the Trust or the trust fund. The Customer 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 Customer will not without consent in writing of HP (HP will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Customer 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.
23. Force Majeure
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.
24.1 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.
24.2 Subject to clause 14, HP shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by HP of these terms and conditions (alternatively HP’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
24.3 HP may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
24.4 The Customer cannot licence or assign without the written approval of HP.
24.5 HP 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 Customer agrees and understands that they have no authority to give any instruction to any of HP’s sub-contractors without the authority of HP.
24.6 The Customer agrees that HP may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for HP to provide Works to the Customer.
24.7 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.
24.8 HP shall have public liability insurance of at least $5m. It is the client’s responsibility to ensure they are similarly insured.
24.9 Subject to the provisions of sale of goods act 1923 – sect 42 and notwithstanding that the property in the goods may have passed to the customer, should the Customer be indebted to HP any goods left for repair as such has by implication of law:
(a) a lien on the goods for the price while HP is in possession of them,
(b) in case of the insolvency of the customer a right of stopping the goods in transit after HP has parted with the possession of them,
(c) a right of resale as limited by this Act.