Shelly Beach Plastering Pty Ltd – Terms & Conditions of Trade
1.1 "SBP" shall mean Shelly Beach Plastering Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Shelly Beach Plastering Pty Ltd.
1.2 "Client" shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by SBP to the Client.
1.3 "Guarantor" means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 "Goods" shall mean Goods supplied by SBP to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by SBP to the Client.
1.5 "Services" shall mean all Services supplied by SBP to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 "Price" shall mean the price payable for the Goods as agreed between SBP and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 ("TPA") and Fair Trading Acts ("FTA")
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by SBP from the Client for the supply of Goods and/or the Client's acceptance of Goods supplied by SBP shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of SBP.
3.4 The Client shall give SBP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client's name and/or any other change in the Client's details (including but not limited to, changes in the Client's address, facsimile number, or business practice). The Client shall be liable for any loss incurred by KKP as a result of the Client's failure to comply with this clause.
3.5 Goods are supplied by SBP only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client's order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price And Payment
4.1 At SBP's sole discretion the Price shall be either:
(a) as indicated on invoices provided by SBP to the Client in respect of Goods supplied; or
(b) SBP's quoted Price (subject to clause 4.2) which shall be binding upon SBP provided that the Client shall accept SBP's quotation in writing within thirty (30) days.
4.2 SBP reserves the right to change the Price in the event of a variation to SBP's quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of increases to SBP in the cost of materials and labour) will be charged for on the basis of SBP's quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At SBP's sole discretion a non-refundable deposit may be required.
4.4 At SBP's sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Clients shall be made by instalments in accordance with SBP's payment schedule.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and SBP.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery Of Goods
5.1 At SBP's sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client's nominated address (in the event that the Goods are delivered by SBP or SBP's nominated carrier).
5.2 At SBP's sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Client's account.
5.3 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.4 The failure of SBP to deliver shall not entitle either party to treat this contract as repudiated.
5.5 SBP shall not be liable for any loss or damage whatsoever due to failure by SBP to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of SBP.
6.1 If SBP retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, SBP is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SBP is sufficient evidence of SBP's rights to receive the insurance proceeds without the need for any person dealing with SBP to make further enquiries.
6.3 Where the Client expressly requests SBP to leave Goods outside SBP's premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client's sole risk and it shall be the Client's responsibility to ensure the Goods are insured adequately or at all.
6.4 The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. SBP 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.
7. Client Responsibilities
7.1 It is the intention of SBP 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 SBP'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.
7.2 The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the works and agrees that SBP shall not be liable for any damage caused to those items through the Clients failure to comply with this clause.
7.3 The Client shall ensure that SBP has clear and free access to the worksite (during all hours allowed by relevant statutory authorities) in order for SBP to complete the works.
8. Underground Locations
8.1 Prior to SBP commencing any work the Client must advise SBP of the precise location of all underground services on the site and clearly mark the same. The underground 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, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
8.2 Whilst SBP will take all care to avoid damage to any underground services the Client agrees to indemnify SBP 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 8.1.
9.1 SBP and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid SBP all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to SBP in respect of all contracts between SBP and the Client.
9.2 Receipt by SBP 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 and until then SBP's ownership or rights in respect of the Goods shall continue.
9.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until SBP shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from SBP to the Client SBP may give notice in writing to the Client to return the Goods or any of them to SBP. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) SBP shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to SBP then SBP or SBP's agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as SBP has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to SBP for the Goods, on trust for SBP; and
(f) the Client shall not deal with the money of SBP in any way which may be adverse to SBP; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of SBP; and
(h) SBP can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that SBP will be the owner of the end products.
10.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify SBP of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford SBP an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which SBP has agreed in writing that the Client is entitled to reject, SBP's liability is limited to either (at SBP's discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer's discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
10.2 Goods will not be accepted for return other than in accordance with 10.1 above.
11.1 For Goods not manufactured by SBP, the warranty shall be the current warranty provided by the manufacturer of the Goods. SBP shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
11.2 To the extent permitted by statute, no warranty is given by SBP as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. SBP shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
12. Intellectual Property
12.1 Where SBP has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in SBP, and shall only be used by the Client at SBP's discretion.
12.2 The Client warrants that all designs or instructions to SBP will not cause SBP to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify SBP against any action taken by a third party against SBP in respect of any such infringement.
12.3 The Client hereby authorisesSBP to utilise images of the Goods designed or drawn by SBP in advertising, marketing, or competition material by SBP.
13. Default & Consequences of Default
13.1 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 one half percent (2.5%) per calendar month (and at SBP's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event that the Client's payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by SBP.
13.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify SBP from and against all costs and disbursements incurred by SBP in pursuing the debt including legal costs on a solicitor and own client basis and SBP's collection agency costs.
13.4 Without prejudice to any other remedies KKP may have, if at any time the Client is in breach of any obligation (including those relating to payment), KKP may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. KKP will not be liable to the Client for any loss or damage the Client suffers because KKP has exercised its rights under this clause.
13.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
13.6 Without prejudice to SBP's other remedies at law SBP shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to SBP shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to SBP becomes overdue, or in SBP's opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which SBP may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to SBP or SBP's nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that SBP (or SBP's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should SBP elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify SBP from and against all SBP's costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint SBP or SBP's nominee as the Client's and/or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15. Compliance with Laws
15.1 The Client and SBP 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.
15.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the works.
15.3 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.
16. Dispute Resolution
16.1 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.
17.1 SBP may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice SBP shall repay to the Client any sums paid in respect of the Price. SBP shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by SBP (including, but not limited to, any loss of profits) up to the time of cancellation.
17.3 Cancellation of orders for Goods made to the Client's specifications or non-stocklist items will definitely not be accepted, once production has commenced.
18. Privacy Act 1988
18.1 The Client and/or the Guarantor/s agree for SBP to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by SBP.
18.2 The Client and/or the Guarantor/s agree that SBP may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by 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 credit worthiness of Client and/or Guarantor/s.
18.3 The Client consents to SBP being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
18.4 The Client agrees that personal credit information provided may be used and retained by SBP for the following purposes and for other purposes as shall be agreed between the Client and SBP or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by SBP, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client's credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client's account and/or the collection of amounts outstanding in the Client's account in relation to the Goods.
18.5 SBP may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
19. Building and Construction Industry Security of Payments Act 1999
19.1 At SBP's sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
19.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
20.1 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.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
20.3 SBP 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 SBP of these terms and conditions.
20.4 In the event of any breach of this contract by SBP the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
20.5 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 SBP nor to withhold payment of any invoice because part of that invoice is in dispute.
20.6 SBP may license or sub-contract all or any part of its rights and obligations without the Client's consent.
20.7 The Client agrees that SBP may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which KKP notifies the Client of such change.
20.8 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.
20.9 The failure by SBP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect SBP's right to subsequently enforce that provision.