Terms of Trade

above, and we cannot issue a Variation Order with a revised quote or fixed price, we shall charge on a time and materials basis (unless another method of charging has been otherwise agreed in our Quote/Cost Estimate).

SUSPENSION AND TERMINATION OF SERVICES

1. Suspension of Services for Overdue Amounts Owing If there is an Overdue Amount Owing and such default continues for (2) two Business Days then we shall be entitled to immediately suspend the Services without notice and, if applicable, in accordance with any applicable Construction Security of Payment Legislation.
2. Termination of Services for Default Without prejudice to our other remedies at law, we reserve our rights to terminate this Contract (which includes any part the Services that remain unfulfilled) and shall not be liable to you for any delay, loss or damage suffered by you due to us exercising our rights under this clause, if one or more of the circumstances listed below occurs:
   1. You fail to pay the Deposit to confirm acceptance of our Services; and/or
   2. You fail to pay any sums that have become an Overdue Amount Owing; and/or
   3. You become insolvent or bankrupt, convene a meeting with your creditors or make an assignment for the benefit of your creditors or a receiver, manager, or liquidator (provisional or otherwise) or similar person is appointed in respect of you or your business or its assets; and/or
   4. We or our approved contractors are denied access to or are unable to access the Site to carry out the Services for whatever reason. To avoid any doubt, where we or our approved contractors assess that the means of access to the premises is unsafe and would breach the relevant safety requirements under applicable health and safety legislation, this is a valid reason for termination if it cannot or will not be remedied by you.
3. Termination for Convenience If you elect to terminate this Contract prior to commencement of the Services where there is no default by us, you must inform us in writing with no less than ten (10) Business Days’ notice prior to the scheduled date for commencement of the Services. Where you elect to terminate the Services after the date of commencement, this is at our sole discretion. In either event, the clauses below in relation to sums for Amounts Owing shall apply.
4. Retention of Deposit In the event you terminate this Contract before we commence the Services, we will be entitled to retain the following:
   1. the entire amount incurred by us in relation to materials ordered or purchased (whether to custom specifications or not); and
   2. an amount to cover our administration and expenses up to and including the date of notice of termination.
5. Amounts Owing for Services and Custom Materials up to Termination Date All Amounts Owing for Goods or Services (as applicable) shall become immediately due and payable if either party exercises their rights to terminate the Services, including (but not limited to):
   1. Services which have commenced but have not been completed up to the date of termination; and/or
   2. Services already performed and completed up to the date of termination; and/or
   3. Custom Materials already ordered to your specifications as at the date of termination. Following receipt of the outstanding balances owing for Custom Materials, these shall be delivered to you (with any applicable delivery or freight fee added to your invoice).
   
   
   

   WARRANTIES

6. Consumer Guarantees To the maximum extent permitted by the Australian Consumer Law and Competition and Consumer Act 2010 (Cth) (CLA), our liability to you arising out of or in connection with this Contract (including the performance or non-performance of the Services or supply of associated Goods), shall be limited in aggregate to the amount set out in our Quote/Cost Estimate and subsequent invoice.
7. Limits on Consumer Guarantees Further, subject to clause 57 and where applicable under the CLA, our liability for failure to comply with a Consumer Guarantee under the CLA is limited to:
   1. In the case of Goods supplied to you, the replacement of the Goods or the supply of equivalent Goods (or the payment of the cost to us of the replacement or supply), or the repair of Goods (or the cost to us of the repair); and
   2. In the case of Services supplied to you, the supply of the Services again or the payment of the cost of having the Services supplied again.
8. Health and Safety We will perform the Services to accepted industry standards and in accordance with the Work Health and Safety Act 2011 (Cth) and the applicable Work Health and Safety laws applicable under the Governing Law.
9. Delay Fees You are not entitled to claim any delay fees, liquidated damages or other costs or expenses related to any delay in the performance of our Services.
10. Accepted Tolerances are Not Defects You agree that there are accepted variances and tolerances to completed Services and Goods within our sector and the presence of such will not constitute a breach of any quality guarantee we offer to you at law or under this Contract.
11. Warranty Notice Period If any defective workmanship or product defect is discovered within twelve (12) months (Warranty Notice Period) and none of the limitations or exceptions listed in this section apply, the following shall apply:
    1. For goods where you inform us within fourteen (14) Business Days of delivery or installation, we will, at our sole election, inspect the Goods to assess if a Defect is present and either replace or repair the defective Goods or liaise with the manufacturer where a third-party manufacturing or product warranty applies.
    2. For workmanship where you inform us within the Warranty Notice Period following practical completion of the Services, we shall remedy any defective workmanship by a re-performance of the Services.
12. Exclusion of Warranties Any warranty or guarantee owed by us to you under relevant laws or under this Contract will not apply where: where you inform us within the Warranty Notice Period following practical completion of the Services, we shall remedy any defective workmanship by a re-performance of the Services.
    1. accepted industry tolerances are present or detected; and/or
    2. the fault or defect is not notified to us within the applicable Warranty Notice Period; and/or
    3. the fault or defect is a result of:
       1. something done by you or someone else, and not by us or our approved contractors; and/or
       2. you or your representatives not maintaining any resulting structure or dwelling (where applicable) in a sound and reasonable condition in such a way that it caused the defect; and/or
       3. something beyond human control that occurred after completion of our Services or works, for example an extreme weather event or natural disaster or natural event such as an earthquake, lahar or tsunami that causes the defect; and/or
       4. any part of the Goods installed as part of the Services being misused, abused, neglected, or damaged after installation; and/or
       5. the Goods not being maintained in accordance with any care or guarantee documents supplied by us to you; and/or
       6. the Goods being repaired, modified, reinstalled, or repositioned by anyone other than us or our approved contractors.
13. No Exclusion of Implied Warranties Nothing in these terms shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of the Goods or Services pursuant to this Contract of all or any of the provisions of Part 3 of the CLA or any relevant law or regulation under the Governing Law which cannot be excluded, restricted or modified.
14. Manufacturer Warranty Claims If Warranty Notice Period has ended and there is a manufacturer product warranty still available for any component part of the Goods included as part of the Services, you must liaise with the manufacturer for the duration of any guarantee period offered by them.
    
    

    RISK

15. Risk in Goods Passes to You on Completion All risk of damage or loss to any Goods shall pass to you on delivery of the Goods or completion of the Services (including where Goods have been installed at your Site as part of the Services). The responsibility to insure those Goods shall pass to you
    
    

    TITLE TO GOODS, PLANT AND EQUIPMENT

16. Retention of Title to Goods We own the Goods (if any) supplied to you as part of the Services until you have paid for them in full. No beneficial or equitable ownership in the Goods will pass to you until full and final payment of the total price has been received by us. Until the Amounts Owing have been paid, you hold the Goods as trustee and agent for us.
17. Right to Enter Site to Seize Goods if there are Amounts Owing If you fail to comply with this Contract in relation to payment of Amounts Owing then we may enter the Site to seize possession of the Goods and retain, sell or otherwise dispose of such Goods. By entering into this Contract, you acknowledge and agree that you grant us or our agents or approved contractors an unrestricted right and licence to enter the Site without notice to identify and remove the Goods that we still own.
18. Title to Plant, Machinery and Equipment All title to any plant, machinery and equipment used to perform the Services and which may be left at the site or Site during the performance of the Services remain our exclusive personal property and no rights, title or interest shall pass to you.
    
    

    PERSONAL PROPERTY SECURITIES ACT 2009 (Cth) (PPSA)

19. This Contract is a Security Agreement You accept that this Contract constitutes a security interest for the purposes of the PPSA.
20. Our Right to Register a Security Interest You consent to us effecting a registration of a security interest in respect of the security interest created by this Contract on the Personal Property Securities Register (PPSR) under the provisions of the PPSA.
21. Waiver of Your Rights under the PPSA You agree the following provisions of the PPSA will not apply to the enforcement of a security interest:
    1. section 95 (notice of removal of accession)
    2. section 96 (when a person with an interest in the whole may retain accession);
    3. section 121(4) (enforcement of liquid assets – notice to grantor);
    4. section 125 (obligation to dispose of or retain collateral);
    5. section 130 (notice of disposal);
    6. section 132(3)(d) (contents of statement of account after disposal);
    7. section 132(4) (statement of account if no disposal);
    8. section 142 (redemption of collateral); and
    9. section 143 (reinstatement of security agreement).
22. What you Must Do to Assist with a PPSR Registration You undertake to:
    1. promptly do all things, execute all documents and/or provide any information which we may reasonably require to enable us to register a security interest or charge on the PPSR; and
    2. not to consent to or enter into any agreement which permits any supplier or other person to register a security interest in respect of the Goods without our prior written consent.
23. Right to Enter Premises or Site You irrevocably grant us the right to enter your Site or premises, without notice, and without being in any way liable to the you or to any third party, if we have the rights to exercise any of our rights under section 123 of the PPSA in respect of our security interest. You shall indemnify us from any claims made by any third party as a result of such exercise. Any costs and expenses in the performance of using our rights under s123 shall be added to any Amounts Owing.
    
    

    LIMITATION OF OUR LIABILITY

24. Delays to Performance of Services Subject to the clause below, if the Services cannot proceed on the scheduled date and time for any reason, we will discuss this with you, and this will be a Variation. We exclude liability to you for any claims, losses, damages, and costs (direct, indirect, or anticipated) incurred by you for the Services not taking place as planned. In the event that the Services are not completed by the anticipated or proposed date advised by us, you acknowledge and agree that you shall not be entitled to any damages (liquidated damages, or any other type of damages or costs) in respect of the delay.
25. Delays or Suspension of Services due to COVID-19 Where the novel coronavirus disease (COVID-19) remains at a pandemic status, our Services are subject to the following:
    1. any overriding government directive or laws that are applicable under the Governing Law at the time the Services are being performed, including any directives that order the shutdown of our Services or limits our ability to travel (COVID-19 Related Delay); and
    2. in the event there is a COVID-19 Related Delay, the performance of our Services will be extended without liability for the period of the delay or our inability to perform due to such delay; and
    3. we will use reasonable commercial endeavours to keep you updated during such delays and resume Services once the COVID-19 Related Delay period is over; and
    4. notwithstanding any other clause in this Contract, we reserve the right to refuse to perform Services should we reasonably believe that there is a risk of us or any one of our personnel becoming infected with COVID-19 in doing so; and
    5. we reserve all rights to request information or evidence of vaccination of residents of or other visitors to your Premises prior to commencing the Services and shall be entitled to refuse to enter the Premises if no such evidence is provided.
26. Force Majeure Neither party will be liable for any non-performance of its obligations under this Contract due to a force majeure event. For the purposes of these terms, “force majeure” means an event or circumstance which leads to a default of either party under this Contract due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, port closure or border closure plus any national or global pandemic effects, including, for the avoidance of doubt, any default due to any implementation of any regulation, directive, rule or measure by any government, state or other authority under the governing law of this Contract. This clause does not apply to a default by you to pay Amounts Owing.
27. Limit of Liability Our total aggregate liability to you arising out of or in connection with the Services whether in contract, any indemnity, tort (including negligence) by statute or otherwise at law or in equity is limited to the total price of the Goods or Services or the actual direct costs incurred by you (whichever is the lower amount).
28. Exclusion of Our Liability To the fullest extent permitted by law, and subject to our obligations during the Warranty Notice Period or under any applicable law that imposes guarantees on us, we exclude all liability to you for any direct or indirect claims, expenses, losses, damages and costs (including any incidental, special and/or consequential damages or loss of profits, loss of anticipated savings or loss of expenses suffered or incurred by you resulting (either directly or indirectly) in connection with the Services.
29. When Limitations of Liability Cannot Apply These clauses do not limit our liability to the extent that it cannot be limited at law; and/or arises out of or in connection with any wilful default, fraud or criminal conduct by us.
    
    

    DISPUTE RESOLUTION

30. Details of the Dispute must be Supplied If you or we consider that a dispute has arisen in relation to any matter governed by this Contract, that party must give the other party written notice outlining the basis of the dispute (Dispute Notice).
31. Dispute must be Discussed The parties must then meet to resolve. If the dispute is not resolved by discussion, meeting and/or other informal means within ten (10) Business Days of the date of the Dispute Notice then the following clause shall apply:
    1. Adjudication under Construction Security of Payment Legislation the aggrieved party must refer the dispute for adjudication under the relevant section of the applicable Construction Security of Payment Legislation;
    2. If not a Construction Security of Payment Legislation Dispute the parties may agree to submit the dispute to arbitration pursuant to the relevant arbitration legislation applicable to the State or Territory of the Governing Law;
    3. Interlocutory relief this clause does not affect either party’s right to seek urgent interlocutory relief.
32. You Must Still Pay Amounts Owing Notwithstanding the presence of a dispute, you must still comply with your obligations to pay us in accordance with the terms of this Contract unless the dispute specifically relates to a disputed amount on an invoice. In that case, you must pay the undisputed portion of that invoice.
    
    

    NOTICES

33. Deemed Notice Any written notice given under this Contract shall be deemed to have been given and received as follows:
    1. by handing the notice to the other party, in person; or
    2. by leaving it at the registered address of the other party as stated in this Contract; or
    3. by sending it by registered post to the address of the other party as stated in this Contract; or
    4. if sent by email to the other party’s last known email address.
    
    
    

    GENERAL

34. Governing Law This Contract shall be governed by the laws of the State or Territory in which our business is registered and the parties irrevocably submit to the exclusive jurisdiction of that State or Territory.
35. Severability If and to the extent any provision or part of a provision is illegal or unenforceable, such provision or part of a provision will be severed from this Contract and will not affect the continued operation of the remaining provisions of this Contract.
36. No Waiver 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.
37. Entire Agreement This Contract sets out the entire agreement between the parties.
38. Signing Not Required It is not necessary for this Contract to be signed unless we insist on it. You are bound by these terms if you continue to act in a way that is consistent with the arrangement and discussions you have had with us in relation to the Quote/Cost Estimate, and we have incurred time and expense in procuring materials or commenced any part of the Services or works for you, or if you have paid a Deposit.
39. Electronic Acceptance The parties agree that any legal requirement may be met by using electronic means in accordance with the Electronic Transactions Act 1999 (Cth).