1.1 In these terms and conditions:
(a) “We” or “us” or ”the Company” means Mr Anderson Plumbing Pty Ltd (b) “you” or “Customer” means the Customer stated in the Agreement and any other person offering to contract with us on these terms and conditions or, where such person is acting in the course of employment, such person’s employer,
(c) ‘Goods” means the goods required to be purchased and supplied by the Customer to complete the services.
(d) “Services” means the services and goods to be supplied by the Company to the Customer.
(e) “Agreement” means an agreement between the Company and Customer for the provision of Services.
2.1 You will purchase and we will supply goods and services to you on the following terms and conditions, however we are not obliged to supply to you when requested to do so.
2.2 All additions and amendments to the terms and conditions must be in writing signed by us.
3 QUOTATIONS AND ORDERS
3.1 The other party to this contract agrees that the quotation for the works is subject to:
(a) variation in pricing for goods to be used in the works;
(b) substitution, on request or for reasons of lack of availability of goods to be used in the works
(c) lack of availability of trades or subcontractors
(d) delay caused by factors outside the control of the Company
(e) variations in the site where the plumbing works are to be performed that make it more difficult to carry out plumbing works
(f) undisclosed information about the site or the plumbing works
(g) you request a variation to the works or a variation to the works being required by reason of the site conditions or by reason of the law and regulations relating to plumbing works.
4.1 All Goods and Services are subject to Goods and Services Tax (GST).
5.1 Subject to clause 5.2, the Customer must pay for all goods and services in advance of, or in cash on delivery.
5.2 Payment is due within 7 days for approved account holders. The Company reserves the right, in its discretion to request a deposit of up to 50% and is not required to commence works until the deposit has been paid.
5.3 You may pay by Visa or MasterCard. However, you agree to pay a credit card handling fee for effecting payment by this method at a rate advised by us from time to time.
5.4 You agree that if you fail to pay in accordance with this clause 5.1 or 5.2, we may:
(a) charge a late payment fee of 2.5% plus GST (over and above any general credit service line fee) on all amounts paid by credit card; and
(b) charge interest on debts at 4% above the rate prescribed pursuant to the Penalty Interest Rates Act (NSW) from time to time; and
(c) charge a dishonour fee, where a cheque is dishonoured by your bank; and
(d) recover all mercantile agents’ collection costs, commissions and expenses (including collection agency fees), including legal expenses on a solicitor/own client basis incurred in collecting overdue accounts; and
(e) withhold supply of goods and services.
5.5 Any forbearance by us in charging any of the fees set out in clause 5 does not constitute a waiver of our right to do so in the future.
6 RISK IN THE GOODS
The risk of loss or damage to the Goods passes to you immediately upon delivery to or collection of the goods.
7 PLUMBING WORKS
7.1 You agree to provide to the Company all preliminary access, information about the premises, water supply, use and requirements of the works as set out in the work order or quotation and that no other information or specifications have been supplied to the Company.
7.2 You agree that the Company has been contracted to carry out the works described in the work orders or quotations.
7.3 You agree that the Company may, if no goods are named in the work order or quotation, supply such goods of make, brand, type and specification, as the Company considers appropriate.
8 CLAIMS AND LIABILITIES
8.1 Subject to any legislation provisions of the Australian Consumer Act, if after completion of the services the customer deems that the services are not in accordance with the work or quotations, the customer must provide written notice to the company within seven days of completion of the services.
8.2 If the customer does not provide notice to the Company in accordance with clause 8.1, the service shall be deemed to comply with the work order and/or quotation.
8.3 You have the benefit of conditions and warranties implied by the Competition and Consumer Act 2010 (“The Act”) and nothing in these terms and conditions is intended to exclude, restrict or modify any statutory obligation we have. References to specific provisions of and circumstances arising under the Act are not intended to include reference to equivalent similar provisions of and circumstances arising under any State or Territory enactment.
8.4 Should we be liable for breach of a condition or warranty implied by the Act, our liability for the breach will be limited to one of the following as determined by us:
(a) the re-supply of the defective goods or services to the Customer;
(b) a refund of the price paid by the Customer for the defective Goods or Services.
8.5 (a) to the full extent permitted by law, all express and implied terms, other than the ones set out in these terms and conditions are excluded;
(b) to the full extent permitted by law, we are not liable for any injury to or death of any person or loss (including loss of profits or consequential loss) or damage to property arising from any act or omission of you, us or any other person (including any loss or damage arising from our negligence);
(c) you indemnify us against –
i any claims made against us by any third party in respect of any loss, damage, death or injury; and
ii. all losses and expenses which we may suffer or incur due to your failure to observe fully your obligations under the Agreement; and
(d) we make no representation, warranty or undertaking about the compliance of the goods with any statutory requirements relating to the marketing of the goods. You acknowledge that you alone are responsible for compliance of the goods with this legislation.
8.6 We will not be responsible for non delivery or delay in delivery of any goods and service due to any cause beyond our reasonable control, notwithstanding that the cause may be operative at the time of entering the contract of sale.
9 RETENTION OF TITLE
9.1 In relation to the goods supplied to you:
(a) Property in those goods shall remain with us until the latter of:
i. Payment in full for the goods; and
ii. Payment in full of all other monies owing as unpaid by you to us including monies in respect of goods and services previously or subsequently provided to you by us.
(b) The relationship between you and us shall be fiduciary;
(c) You will hold the goods as bailee for us;
(d) Where you sell those goods, you have no power to commit us to any contract or liability, but as between you and us, you will sell as fiduciary agent;
(e) We will be given full ownership of any new goods or objects formed if you transform our goods into other goods or affix those goods to other objects;
(f) Where those goods are disposed of, the monies resulting from the disposal and all other proceeds, (tangible or intangible) received in respect of the goods, including insurance proceeds will be held separately in trust for us;
(g) Where those goods are disposed of, you may only dispose of the goods in the ordinary course of your business on commercially reasonable terms;
(i) You will keep records of those goods.
9.2 You agree that our employees or agents may enter upon your premises (doing all that is necessary to gain access) where it is reasonably thought goods supplied under this agreement might be stored for the purpose of examining or recovering the goods.
11.1 You agree that:
(a) We may set off any amount that we owe to you against any debit due by you to us;
(b) You are not entitled to withhold payment of any money in respect of any set off or claim you might have against us.
11 ACTS OF DEFAULT
11.1 If you fail to pay for the goods or services on the due date then, even though we reserve title to the goods supplied to you and without prejudice to any other rights and remedies we may have, we may sue you for the price of the goods and services as a liquidated sum.
11.2 If you:
(a) fail to pay for any goods and services on the due date; or
(b) otherwise breach this Agreement and fail to rectify such breach within 7 days’ notice; or
(c) you cancel delivery of the goods; or
(d) commit an act of bankruptcy; or
(e) allow a trustee in bankruptcy or receiver and manager to be appointed to you or any of your property; or
(f) allow distress to be levied by a judgement, order or security to be enforced, or to become enforceable against your property; or
(g) are a company; and.
i. proceedings are commenced to wind you up or any of your subsidiaries; or
ii. a controller, receiver, administrator, liquidator or similar officer is appointed to you or in respect of any part of your property;
then we and our agents may enter upon your premises (doing all that is necessary to gain access) where goods supplied under this contract are situated at any time and retake possession of any or all of the goods we have supplied to you.
11.3 We reserve the right to resell the repossessed goods and terminate the Agreement.
12 GOVERNING LAW
This contract is governed by the Law of New South Wales. You and the Company irrevocably submit to the exclusive jurisdiction of the NSW Courts and Federal Courts sitting in New South Wales.
13 PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)
13.1 Where the Company has supplied Goods as part of the services to the Customer, and title in those Goods has not yet passed to the Customer and the Goods have not yet become affixed to land, the Customer acknowledges and agrees that:
(a) the goods constitute as personal property for the purposes of the PPSA;
(b) the Agreement constitutes a security agreement for the purposes of the PPSA;
(c) the Customer will provide the Company a purchase money security interest (“PMSI”) under the PPSA in the goods and their proceeds to secure all amounts owed to the Company by the Customer;
(d) the Company is at liberty to register the PMSI on the Personal Property Securities Register (“PPSR”);
(e) it will provide the Company all information the Company requires to register a financing statement or financing change statement on the PPSR;
(f) it will not change its name in any form or other details on the PPSR without first notifying the Company; and
(g) it will, if required by the Company, pay to the Company the cost of registering and maintaining registration of the Customer’s PMSI on the PPSR, within 14 days of the request.
14 NOTICE OF WAIVER OF RIGHT TO VERIFICATION STATEMENT FOR THE PURPOSE OF SECTION 157 PERSONAL PROPERTY SECURITIES ACT 2009
14.1 The Customer severally acknowledges:
(a) The Company may be making application pursuant to Section 150 of the PPSA to the PPSR, to register a:
(b) Financing Statement relating to any condition in these terms and conditions applicable to a security interest or prescribed personal property; and/or
(c) Financing Change Statement to amend a Registered Financing Statement relating to a security interest or prescribed personal property.
14.2 On registration of any such Financing Statement or Financing Change Statement, pursuant to Section 156 of the PPSA, the Registrar will issue to the Company as the secured party, a Verification Statement in relation to the registration event.
(a) Pursuant to Section 157 of the Act, the Customer as grantor of the security interest will be entitled to notice from the Company of the Verification Statement unless:
(b) The registration event relates to commercial property of the Customer, (as defined in the PPSA); and
(c) The Customer has, in writing, waived the Customer’s right to receive notice of the Verification Statement.
14.3 In consideration of the Company accepting the Customer’s request for supply of goods and services, the Customer, as testified by their separate execution of this clause, jointly and severally waive, its, his, hers and their right under Section 157 of the PPSA to receive notice of a Verification Statement received by the Company in relation to registration of a Financing Statement or a Financing Change Statement, arising from a security interest provided by the Customer pursuant to these terms and conditions.
15 CESSATION OF SUPPLY
Our agreement to continue to provide goods and services to you is always conditional upon our being satisfied of your ability to pay and comply with these terms and conditions. If we cease to be so satisfied we may suspend and/or terminate the provision of goods and services and shall not be liable in any way for any claim, damage, expense or cost suffered by you.
Should any part of these terms and conditions be held to be void or unlawful, these terms and conditions shall be read and enforced as if the void or unlawful provisions have been deleted.
17 WHOLE AGREEMENT
These terms and conditions embody the whole agreement between the parties and subject to the express terms contained in any written order or written acceptance thereof, all previous dealings, representations and arrangements are hereby excluded and cancelled.
You warrant to provide a safe and appropriate access to the premises and site.
The Company shall not be obliged to accept the return of any goods, but may, in its absolute discretion, subject to mandatory legislative requirements, accept the return of particular goods on whatever conditions it thinks fit.
The Company may set out or refer to a recommended retail price for goods. In such a case, the price set out or referred to is a recommended price only and there is no obligation for anyone to comply with the recommendation.
21 FORCE MAJEURE
If as a direct or indirect result of natural disaster, industrial dispute, accident, government restriction, war, civil disturbance or any other cause, of whatever nature, outside the Company’s control, and the company is unable to perform its obligations under these terms, the Company is released from those obligations to the extent of such liability, and the Customer shall not be entitled to claim compensation for any such failure by the Seller to perform its obligations.
Failure by the Company to enforce any of these terms in respect of any breach by the Customer shall not be construed as a waiver of any of the Company’s rights or a waiver of the Company’s right to enforce the terms in respect of that breach in the future. If the Customer is a corporation, the only persons authorised to waive a breach by the Customer are the Director(s), and General Manager of the Company and the Customer shall not seek to rely upon a waiver purportedly given on behalf of the Company by any other person.
23 INTELLECTUAL PROPERTY
23.1 The Customer shall treat all information disclosed to it by or on behalf of the Company, or acquired by the Customer concerning the Company or the supplies as the Company’s confidential information and shall not use or disclose the same except:
(a) To the extent necessary in order to make effective use of the supplies;
(b) To obtain professional advice concerning this Agreement;
(c) To the extent disclosure is required by law; or
(d) To the extent any relevant information shall become public knowledge other than through the Customer’s act or omission.
23.2 All intellectual property (including copyright) in all plans, drawings, designs and text (including Specifications) which are made available to the Customer shall be solely owned by the Company and shall be delivered up to the Company immediately on that company’s request. The Customer acknowledges that no intellectual property licence is granted by this Agreement, other than to the extent necessary to enable the Customer to resell to the customer specified in the quotation for the Customer’s own purpose and not for further resale.
The Company may sub-contract any or all of its rights and obligations under these Terms without the Customer’s consent.