Gaffke’s Gardens & Landscaping – Terms & Conditions of Trade
Please note that a larger print version of these terms and conditions is available from the Contractor on request. © Copyright – EC Credit Control 1999 – 2015
1. Definitions
1.1 “Contractor” means Kahlil Ian Gaffke T/A Gaffke’s Gardens & Landscaping, its successors and assigns or any person acting on behalf of and with the authority of Kahlil Ian Gaffke T/A Gaffke’s Gardens & Landscaping.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services (which may include any wet hire provided by the Contractor) supplied by the Contractor to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between the Contractor and the Client in accordance with clause 5 below.
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 the Goods.
2.2 These terms and conditions may only be amended with the Contractor’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Contractor.
2.3 The Contractor shall only be responsible for their performance to the party that contracts them to undertake the Services and shall not be responsible to any third party irrespective of their relationship to the Client.
2.4 The Client accepts when requesting or organising the Contractor to provide Services that the Client shall acknowledge their interest in the Goods as the lawful owner of the Goods or in the case of a third party that the
Client has written authority to act as an agent on behalf of the third party. If the third party is intended to be responsible for the payment (or any part thereof) of the Price then in the event that the third party does not pay for the Services when due, the Client acknowledges that they shall be liable for the payment of the Price as if they had contracted the Services on their own behalf.
3. Electronic Transactions (Victoria) Act 2000
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
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, 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 any invoice provided by the Contractor to the Client; or
(b) the Contractor’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of twenty-eight (28) days.
5.2 The Contractor reserves the right to change the Price in the event of a variation to the Contractor’s quotation. In the event of any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances (including, but not limited to, the size of the lopping job or the heights of the trees, limitations to site access, inclement weather, challenging terrain or site obstructions, etc.), or as a result of increases to the Contractor in the cost of materials and labour) then the Contractor reserves the right to halt all Services until such time as the Contractor and the Client agree to changes to the plans and/or specifications as outlined in the quotation to incorporate such variances. The variances once approved shall be detailed in writing and charged for on the basis of the Contractor’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.
5.3 At the Contractor’s sole discretion a non-refundable deposit may be required.
5.4 Time for payment for the Goods 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 Services;
(b) by way of instalments/progress payments in accordance with the Contractor’s payment schedule;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is twenty-eight (28) days following the date of any invoice given to the Client by the Contractor.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and the Contractor.
5.6 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.
6. Delivery
6.1 Subject to clause 6.2 it is the Contractor’s responsibility to ensure that the Services start as soon as it is reasonably possible.
6.2 The Services’ 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 Services; 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 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Contractor shall be entitled
to charge a reasonable fee for redelivery and/or storage.
6.5 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed five percent (5%); and
(b) the Price shall be adjusted pro rata to the discrepancy.
6.6 Any time specified by the Contractor for delivery of the Services 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 Services 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 Services 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 Services at a later time and date.
7. Risk
7.1 If the Contractor retains ownership of the Goods under clause 22 then:
(a) where the Contractor is supplying Goods only, all risk for the Goods shall immediately pass to the Client on delivery and the Client must insure the Goods on or before delivery. Delivery of the Goods shall be
deemed to have taken place immediately at the time that the Goods 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 Goods then the Contractor shall maintain a contract works insurance policy until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Client.
7.2 Notwithstanding the provisions of clause 7.1 if the Client specifically requests the Contractor to leave Goods outside the Contractor’s premises for collection or to deliver the Goods 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 Goods are insured adequately or at all. In the event that such Goods are lost, damaged or destroyed then replacement of the Goods shall be at the Client’s expense.
7.3 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.
7.4 The Client acknowledges and agrees that in the event the Contractor require access, in order to undertake the Services, to an adjoining or adjacent property or land to the nominated job site, that is not owned by the Client, then it is the Client’s responsibility to gain permission from the land owner to use the above mentioned property throughout the process or delivering the Services. In the event the land owner denies access or use of the land or property, the Client shall be liable for all costs incurred by the Contractor in gaining permission to access and/or use the property through any legal process that may be deemed necessary.
7.5 The Contractor reserves the right to refuse to continue or to complete the Services in the event that the Contractor believes the site/trees to be unsafe to either the Contractor’s employees and/or the Client’s property. In this event, the Client accepts the Contractor’s right to make safe the site before the Contractor will continue the Services. The Client agrees to indemnify the Contractor against all additional costs incurred in such an event, with all additional costs detailed separately at the time of invoicing in accordance with clause 5.2. The Contractor shall not be liable for any delays caused, loss, damages, or costs however resulting from an unsafe site.
7.6 Where the Client has provided instructions or specifications for the Contractor to complete the Services (including, but not limited to, any requested variation to the original design), then the Contractor shall accept no liability whatsoever for the finished Services being deemed as unsatisfactory to the Client.
7.7 The Client accepts and acknowledges that shrubs, plants, natural turf and any other flora, foliage or vegetation supplied by the Contractor are organic in nature and require care and maintenance. The Contractor reserves the right to not accept liability for the plants where such plants may have become affected or died due to the Client’s failure to properly maintain the plants and/or to follow any instructions or guidelines provided by the Contractor in regard to the proper care of the plants (including but not limited to, adequate watering of the plants).
7.8 The Client warrants that any structures (where applicable) to which the Goods are to be affixed are able to withstand the installation of the Goods and that any connections (including, but not limited to, meter boxes, main switches, pipes, wiring etc.) are of suitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos, defective or unsafe wiring or dangerous access to roofing) that the Contractor, or employees of the Contractor, reasonably form the opinion that the Client’s premises is not safe for the installation of Goods to proceed then the Contractor shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 6.2 above) until the Contractor is satisfied that it is safe for the installation to proceed.
7.9 The Client acknowledges that Goods supplied may:
(a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
8. Fencing Risk
8.1 The Client must be on site to supervise the marking out of the fence line, placement of boundary pegs and during the installation of the fence. If the Client fails to comply with this clause then the Contractor accepts no responsibility for installation decisions that need to be made by the Contractor in the Client’s absence.
8.2 The Client acknowledges that it is their responsibility to remove any existing fence (including existing footings), trees, vines and shrubs to allow the Contractor clear access along the proposed fence line prior to commencement of work by the Contractor unless otherwise agreed in writing between the Contractor and the Client. Under no circumstances will the Contractor handle removal of asbestos product.
8.3 Whilst the Contractor will take all due care during installation the Contractor will not accept any responsibility for tiles or pavers damaged during installation.
8.4 Where fencing is installed on a retaining wall the Contractor shall not be liable for any movement in the fence due to consolidation, or the movement of soil or any other component of the retaining wall.
8.5 The Contractor shall not be responsible for digging land out under fence lines nor removal of soil from the work site.
8.6 The Contractor reserves the right to touch-up all products supplied and installed on the work site to rectify minor blemishes or damage to paintwork.
9. Timber Risk
9.1 Timber is a natural product and as such may exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations. Whilst the Contractor will make every effort to match sales samples to the finished Goods the Contractor accepts no liability whatsoever where such samples differ to the finished Goods supplied.
9.2 Timber is a hydroscopic material subject to expansion and contraction, therefore the Contractor will accept no responsibility for gaps that may appear in the timber during prolonged dry periods.
10. Tile and Paver Risk
10.1 The Client acknowledges that variations of colour, shade and grain are inherent in all kiln fired products and natural stone. While every effort will be taken by the Contractor to match colour, shade or grain of product, the Contractor shall not be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading or grain between batches of product or sale samples and the final product supplied.
10.2 The Contractor gives no guarantee (expressed or implied) against optical hazing, crazing, cracking, chipping or scratching that may occur that is beyond the Contractor’s control due to the nature of the product at the time of installation, therefore it is recommended that the Client allows for extra product for such breakages.
10.3 The Client acknowledges and accepts that the Goods supplied by the Contractor maybe subject to optical hazing, shadowing and sealer marking, which is a common manufacturing occurrence for these types of Goods and is strictly aesthetic. It is recommended that the Client inspect the Goods (individually) prior to fixing, as the Contractor shall not be liable for any loss or damage in this event.
10.4 The Client acknowledges that it is the Client’s responsibility to check quantities, with an on-site measurement before commencing fixing. Measurements taken off plans or the Client’s figures by the Contractor are approximate only and no responsibility is taken for their accuracy.
10.5 If the Client orders an insufficient number of tiles, then the Contractor will take no responsibility for any variation of colour in further batches supplied to the Client or the inability to supply Goods at all.
10.6 The Contractor will accept no responsibility for tiles that have already been affixed.
11. Paint and Plaster Risk
11.1 The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. The Contractor will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
11.2 The Contractor shall not be liable whatsoever for any loss or damage to the Services (including, but not limited to, painted surfaces) that is caused by any other tradesmen.
12. Plumbing Risk
12.1 The Client acknowledges that the presence of plant or tree root growth and/or other blockages may indicate damaged pipe work and therefore where the Contractor is requested to merely clear such blockages, the Contractor can offer no guarantee against reoccurrence or further damage. In the event of collapse during the pipe clearing process, the Contractor will immediately advise the Client of the same and shall provide the Client with an estimate for the full repair of the damaged pipe work.
13. Concrete Risk
13.1 Where the Client has supplied materials for the Contractor to complete the works, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. The Contractor shall not be responsible for any defects in the Services, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Client.
13.2 The Client acknowledges that variations of colour and texture are inherent in concrete. The Contractor shall not be liable for any loss, damages or costs howsoever arising resulting from any variation of the colour or texture
between different batches of product.
13.3 Detailed drawings of any services that will be embedded in the concrete are to be provided to the Contractor prior to commencement of any work. Whilst all due care will be taken no liability will be accepted by the Contractor for
damage to the services or any other element embedded in the concrete.
13.4 The Contractor gives no guarantee (expressed or implied) as to the length of time the curing process will take and/or against cracking of concrete that may occur naturally in the works such as:
(a) hairline cracking of paving and grout; or
(b) damage caused by contact with chemicals, solvents, oils or any other substances; or
(c) the affects by elements such as heat exposure or wet weather conditions that prolong the curing process.
13.5 The Client acknowledges and agrees that it is their responsibility to organise and be liable for all costs associated with protecting the concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that the concrete is destroyed or damaged due to vandalism then the cost of repair or replacement shall be borne by the Client.
13.6 The Contractor shall not be liable for any defect in the Services if the Client does not follow the Contractor’s recommendations, including:
(a) to water the concrete periodically to limit the risk of possible cracking due to weather conditions;
(b) that no foot traffic and/or any vehicles on the concrete for a minimum of forty-eight (48) hours but preferably seven (7) days;
(c) that no heavy furniture is to be placed on the concrete area for a minimum of twenty-four (24) hours.
13.7 Where the Contractor gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the work site for the laying of concrete slabs, foundations or similar works and such advice or recommendations are not acted upon then the Contractor shall require the Client or their agent to authorise commencement of the Services 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 Services.
13.8 The Client shall supply an area suitable for washing out the Contractor’s equipment and for disposing all unused concrete and slurry.
14. Measurement of Concreting Work
14.1 At the completion of the Services the Client or the representative of the Client shall be in attendance and the work shall then be duly measured. In the absence of either the Client or their representative the Contractor shall carry out the necessary measurements and forward to the Client their calculations. If the Client does not object to the calculations within seven (7) days of receipt of the same then it shall be deemed acceptance of the same and the work completed.
15. Client’s Responsibilities
15.1 It is the intention of the Contractor and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding to enable the Services to be undertaken (where in the Contractor’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.
15.2 The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the Services and agrees that the Contractor shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.
15.3 The Client shall provide the Contractor with a suitable free power source and access to water and toilet facilities.
16. Care of Goods
16.1 The Contractor may at its discretion notify the Client that it requires to store at the work site Goods, fittings and appliances, or plant and tools required for the Services, in which event the Client shall supply the Contractor a safe area for storage and shall take all reasonable efforts to protect all items so stored from possible destruction, theft or damage. In the event that any such items are destroyed, stolen or damaged then the cost of repair or replacement shall be the Client’s responsibility.
17. Surplus Goods
17.1 Unless otherwise stated elsewhere in this contract:
(a) demolished Goods remain the Client’s property; and
(b) Goods which the Contractor brings to the site which are surplus remain the property of the Contractor.
18. Access
18.1 The Client shall ensure that the Contractor has clear and free access to the work site 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.
19. Underground Locations
19.1 Prior to the Contractor commencing any work the Client must advise the Contractor 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.
19.2 Whilst the Contractor will take all care to avoid damage to any underground services the Client agrees to indemnify the Contractor in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to
services not precisely located and notified as per clause
20. Insurance
20.1 The Contractor shall have public liability insurance of at least $5m. It is the Client’s responsibility to ensure that they are similarly insured.
21. Compliance with Laws
21.1 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 Services.
21.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
21.3 The Customer 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.
21.4 The Client reserves the right not to clean the site if animal faeces or other contaminants could cause a health issue for the Contractor’s employees.
22. Title
22.1 The Contractor and the Client agree that ownership of the Goods 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.
22.2 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.
22.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 22.1 that the Client is only a bailee of the Goods and must return the Goods to the Contractor on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods 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.
(d) the Client should not convert or process the Goods 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.
(e) the Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Goods are kept and recover possession of the Goods.
(f) the Contractor may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Contractor.
(h) the Contractor may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
23. Personal Property Securities Act 2009 (“PPSA”)
23.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
23.2 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 Goods and/or collateral (account) – being a monetary obligation of the Client to the Contractor for Services – that have previously been supplied and that will be supplied in the future by the Contractor to the Client.
23.3 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 23.3(a)(i) or 23.3(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 Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods 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 Goods which would result in a change in the nature of proceeds derived from such sales.
23.4 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.
23.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
23.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
23.7 Unless otherwise agreed to in writing by the Contractor, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
23.8 The Client must unconditionally ratify any actions taken by the Contractor under clauses 23.3 to 23.5.
23.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
24. Security and Charge
24.1 In consideration of the Contractor agreeing to supply the Goods, 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).
24.2 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.
24.3 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 24 including, but not limited to, signing any document on the Client’s behalf.
25. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
25.1 The Client must inspect the Goods on delivery or the Services on completion and must within seven (7) days of delivery notify the Contractor in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to
inspect the Goods.
25.2 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).
25.3 The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non- Excluded Guarantees.
25.4 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 Goods. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.
25.5 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.
25.6 If the Contractor is required to replace the Goods under this clause or the CCA, but is unable to do so, the Contractor may refund any money the Client has paid for the Goods.
25.7 If the Client is not a consumer within the meaning of the CCA, the Contractor’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Contractor at the Contractor’s sole discretion;
(b) limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Goods;
(c) otherwise negated absolutely.
25.8 Subject to this clause 25, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 25.1; and
(b) the Contractor has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
25.9 Notwithstanding clauses 25.1 to 25.8 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 Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by the Contractor;
(e) fair wear and tear, any accident, or act of God.
25.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods 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 Goods and calculated the Price of the second hand Goods in reliance of this clause 25.10.
25.11 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.
26. Intellectual Property
26.1 Where the Contractor has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Contractor.
26.2 The Contractor shall reserve the right to charge a licence fee for any plan designed by the Contractor for the Client and subsequently used by any third party.
26.3 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.
26.4 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 or Goods which the Contractor has created for the Client.
27. Default and Consequences of Default
27.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
27.2 If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal
administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonour fees).
27.3 Further to any other rights or remedies the Contractor may have under this contract, if a Client has made payment to the Contractor by credit card, 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 27 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
27.4 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 Goods 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. 27.5 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 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.
28. Cancellation
28.1 The Contractor 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 the Contractor shall repay to the Client any money paid by the Client for the Goods. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation. 28.2 In the event that the Client cancels delivery of Goods 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).
28.3 Cancellation of orders for Goods 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.
29. Privacy Act 1988
29.1 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.
29.2 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 years.
29.3 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.
29.4 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 Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; 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 Goods.
29.5 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.
29.6 The information given to the CRB may include:
(a) personal information as outlined in 29.1 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).
29.7 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.
29.8 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 agreement or is required to be maintained and/or stored in accordance with the law.
29.9 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.
30. Dispute Resolution
30.1 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.
31. Building and Construction Industry Security of Payment Act 2002
31.1 At the Contractor’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 Payment Act 2002 may apply.
31.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.
32. General
32.1 The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’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.
32.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which the Contractor has its principal place of business, and are subject to the jurisdiction of the courts of Morwell
in Victoria.
32.3 Subject to clause 25, 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 Goods).
32.4 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.
32.5 The Contractor may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
32.6 The Client agrees that the Contractor may amend these terms and conditions at any time. If the Contractor makes a change to these terms and conditions, then that change will take effect from the date on which the Contractor
notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Contractor to provide Goods to the Client.
32.7 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.
32.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
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