Terms & Conditions of Trade
(Effective 1 August 2013)
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The Contractor agrees to perform the Works and/or supply the Goods requested by the Client on the terms and
conditions set out below. Words in ITALICS are defined at clause 31.1 below.
1. Quotations, Orders, Acceptance & Contracts
1.1 Clauses 3.1, 6.2, 6.8, 10.6, 18.4, 22.3(c), 24.4, 26.1, 28.1 and 29.1 shall apply to the Agreement unless or to the extent the Quotation
or Order expressly specifies otherwise.
1.2 The Client acknowledges that the submission of a Quotation by the Contractor is not an offer the acceptance of which will give rise
to a contract.
1.3 An Order in relation to a Quotation or offer to enter into an Agreement may be made by the Client verbally or in writing.
1.4 An Order or offer is accepted when the Client receives from the Contractor an acceptance of the Order in writing, or if no written
acceptance of the Order is received, verbal acceptance or delivery of the Works or the Goods, whichever occurs first ("the Order
1.5 When an Order or offer is accepted by an Order Acceptance an Agreement will be made and wholly documented by (in descending
Order of precedence) the Quotation, any specific terms agreed in writing and set out in the Order and these terms and conditions,
which documents shall constitute the entire Agreement and will supersede all prior negotiations, proposals and correspondence
between the parties.
1.6 Despite the Client at any time providing, referring to, submitting or otherwise using or purporting to use any standard form terms
and conditions other than these terms and conditions, such terms and conditions will not form part of, or be incorporated into, the
2. Performance of Works & Supply of Goods
2.1 The Contractor shall carry out and complete the Works and/or supply the Goods in accordance with the Agreement. The Client and
the Contractor agree that the items referred to as Exclusions in the Quotation, if any, are excluded from the Agreement.
2.2 The Contractor warrants that the Works will be carried out in a proper and workmanlike manner and in accordance with the
2.3 The Contractor shall not be required to commence the Works or supply the Goods until the Client:
(a) if required by the Contractor, provides evidence that it is the owner of the Site or contracted builder of the Works to be
carried out on the Site and a copy of any Development Approval required in respect of Works, and
(b) has paid the Deposit, if any, in accordance with clause 3.2.
2.4 Subject to clauses 2.3 and 10, the Contractor shall carry out the Works within a reasonable time and as far as reasonably possible by
the date for completion specified in the Quotation, if any.
2.5 In carrying out the Works the Contractor and its agents and employees shall observe all relevant occupational health and safety law
and shall comply with all obligations under workers compensation legislation.
3. Contract Price & Deposit
3.1 The Client shall pay to the Contractor the Contract Price and other money that becomes payable under the Agreement (without any
set off) in the manner and at the times stated in the Agreement.
3.2 The Client shall pay to the Contractor the deposit specified in the Quotation, if any, within seven (7) days of the Order Acceptance.
4. Site Possession, Access, Services & Materials
4.1 The Client warrants that it has exclusive possession of the Site to carry out work including the Works. The Client must provide clear
and free all weather access to the Site for delivery of materials and performance of the Works. If the Client does not provide all
weather access, the Contractor may carry out any work required to achieve such access and that work is deemed to be a Variation.
The Contractor shall not be liable for any loss or damage to the Site including, without limitation damage to pathways, driveways
and concrete, paved or grassed areas unless such damage was reasonably avoidable and caused by the Contractors' negligence.
4.2 The Client must not:
(a) hinder the Contractor's access or possession of the Site for the purposes of carrying out the Works,
(b) hinder the progress of the Works, or
(c) make inquiry of, issue directions to, or give instructions to, the Contractor' workers or subcontractors. Communications must
only be with The Contractor's nominated person.
4.3 The Client may only have access to the Works at reasonable times and after giving reasonable prior notice for the purposes of
inspecting the progress of the Works.
4.4 The Client must supply electricity and water, at it's expense, for the Contractor to use in carrying out the Works.
4.5 All materials delivered to Site by the Contractor and not required for the Works will remain the property of the Contractor.
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5. Accuracy of Contract Documents
5.1 The party responsible for the preparation of a Contract Document warrants that it is accurate and correct.
5.2 In the event of any inconsistency between the Contract Documents, or any detail not being given, the Contractor shall give notice to
the Client detailing the problem. The Client must within two (2) Business Days of receiving such notice give written instructions as to
how the Contractor is to proceed with the Works.
5.3 In the event that the Client refuses or fails to give written instructions to the Contractor within two (2) Business Days of a notice
pursuant to Clause 5.2, the Client authorises the Contractor to determine the required detail necessary to resolve the error,
ambiguity or inconsistency, however, the Contractor shall not be obliged to act under that authority.
5.4 If the required detail, as determined by the Client or the Contractor necessitates a change to the scope of the Works, that work is
deemed to be a Variation.
6. Delivery & Inspection of Goods
6.1 Delivery of the Goods is taken to occur when:
(a) the Contractor or the Contractor's nominated carrier delivers the Goods to the Site or address or third party nominated by
the Client even if the Client is not present at the address, or
(b) the Client or its nominated carrier takes possession of the Goods.
6.2 The cost of delivery is payable by the Client in addition to the Contract Price.
6.3 The Contractor shall make reasonable efforts to deliver the Goods to the Client or its designated agent in accordance with any
agreement between the parties, or in the absence of any specific agreement, within a reasonable time, but shall not be liable for:
(a) any failure to deliver or delay in delivering the Goods for any reason,
(b) any damage or loss due to unloading or packaging (unless risk in the Goods had not passed to the Client at the relevant time),
(c) any damage to property caused upon entering premises to deliver the Goods, unless caused by the Contractor's negligent act
6.4 The Client shall accept delivery of the Goods even if late. In the event that the Client fails to take delivery of the Goods at the time of
delivery the Client shall reimburse the Contractor for any costs incurred by the failure and the Contractor shall be entitled to charge
a reasonable fee for redelivery and/or storage of the Goods.
6.5 The Client must inspect the Goods on delivery. The Client must notify the Contractor in writing within seven (7) days of delivery and
setting out full details of all relevant matters if:
(a) the Goods are damaged, faulty or defective in any,
(b) the Goods do not comply with any description by which they were sold and/or specified to in the Quotation, or
(c) there is any discrepancy in quantity.
6.6 The Client must notify the Contractor in writing of any other defect in the Goods as soon as reasonably possible after any such defect
6.7 Where a notice is given under clauses 6.5 or 6.6 the Client shall allow the Contractor to inspect the Goods.
6.8 Notwithstanding any other clause, where the Goods or any part of the Goods are second hand, the Contractor makes no warranty in
relation to the quality or suitability of the second hand Goods for any purpose and the Client:
(a) acknowledges that it has had a reasonable opportunity to inspect the second hand Goods prior to delivery, and
(b) accepts the second hand Goods with any faults, damage and/or missing parts or components.
7. Passing of Risk
7.1 The risk in the Goods will pass to the Client:
(a) where the Works include the installation of the Goods or any particular Goods, upon completion of that part of the Works
that relates to the installation or each installation, and
(b) in all other cases, upon the earlier of: (i) the delivery of the Goods to the Client or its agent (including all risks associated with
unloading), and (ii) the passing of title to the Goods to the Client.
7.2 Notwithstanding clause 7.1(a), if the Client directs the Contractor to deliver the Goods to an unattended location the Goods shall be
left at the Client's sole risk and responsibility. In the event that such Goods are lost, damaged or destroyed the replacement of the
Goods shall be at the Client's expense.
7.3 Where the Contractor retains ownership pursuant to clause 8 of Goods in respect of which risk has passed to the Client, the Client
must maintain adequate insurance in relation to the Goods and provide evidence of such insurance to the Contractor on request.
8. Retention of Title
8.1 Notwithstanding the delivery of Goods, until the Client has paid all monies payable to the Contractor under the Agreement in
(a) the legal and equitable title to the Goods will remain with the Contractor;
(b) a fiduciary relationship will exist between the Client and the Contractor; and
(c) the Client agrees to hold the Goods as bailee for the Contractor and keep the Goods separate and in good condition.
8.2 Unless the Goods have become fixtures, until ownership of the Goods passes to the Client:
(a) the Client shall not charge or grant any encumbrance over the Goods,
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(b) the Client must return the Goods to the Contractor on request, and
(c) the Contractor may without demand retake possession of the Goods.
8.3 For the purposes of recovering possession of the Goods and without limiting the generality of this clause 8, the Client irrevocably
authorises and licenses the Contractor and its servants and agents to enter any premises where the Contractor believes the Goods
may be stored and to take possession of the Goods.
9. Progress Claims
9.1 The Contractor may issue a Progress Claim in respect of work carried out or related goods or services supplied by the Contractor on
(a) the dates, periods or milestones specified in the Quotation, if any,
(b) the date of delivery of the Goods or any part of the Goods,
(c) every seven (7) days after the date of the Order, and
(d) when in the Contractor's opinion the Works have reached the stage of Practical Completion.
9.2 The Contractor may serve a Progress Claim on the Client by any method that it is entitled to give notice under the Agreement.
9.3 The Client must pay the Contract Price progressively as claimed by the Contractor within seven (7) days, or such other period as
specified in the Quotation, of service of a Progress Claim on the Client.
9.4 The Client may only provide the Contractor with a Payment Schedule in relation to Progress Claim within seven (7) days of the date
of service of the Progress Claim.
10.1 A Variation occurs if:
(a) the Agreement deems a Variation,
(b) the Client requests the Contractor to perform a Variation and subsequently the Contractor performs the Variation in
accordance with the Client's direction, or
(c) the Client and the Contractor agree in writing to a Variation, including Agreement as to the price of the Variation.
10.2 The price of a Variation is payable progressively as the Variation is performed and is due at the same time as the next Progress Claim
after it is carried out unless a different time is agreed.
10.3 If the Client has requested the Contractor to perform a Variation and the Contractor has provided the Client with a cost proposal in
respect of the Variation, unless the cost proposal is rejected by the Client in writing within two (2) Business Days the amount of the
cost proposal is deemed to be the price of the Variation for the purposes of clause 10.1(b).
10.4 If there is insufficient time to calculate the price of a Variation, or this Contract deems a Variation, the price of the Variation will be
charged to the Client at the Contractor's reasonable cost plus a Profit Margin.
10.5 There shall be a deemed Variation if:
(a) the requirements of any statutory or other Authority necessitate a change to the Works, such Variation being that work
required to effect that change,
(b) additional work is required, or the work is required to be performed in a manner or using equipment not anticipated, due to
the discovery of latent difficulties in the performance of the Works (including, without limitation, poor weather conditions,
poor access to the Site, hidden pipes in walls, safety risks, works by a third party not being completed where necessary for
the Works to be performed),
(c) after the Agreement is made; (i) a statutory or other Authority introduces or increases any tax, charge, levy or other
regulation or any requirement that affects the Works that causes any increase in the costs of the Works, or (ii) the
Contractor's wages is affected by a change to an Industry Award.
10.6 The Client acknowledges that the Contract Price has been agreed on the basis of the Contractor performing the Works during the
Contractor's ordinary operating hours. Where no construction program was provided to the Contractor prior to the date of the
Quotation, the Contractor will be entitled to a Variation if the Works are required to be carried out outside the aforementioned
working hours to comply with any subsequent construction program.
10.7 Where extra cost in materials, labour and overhead is occasioned to the Contractor by virtue of the acceleration of an agreed work
schedule the Agreement is deemed to have been varied and the Contract Price shall be adjusted accordingly.
10.8 Notwithstanding any other clause herein, the Contractor is under no obligation to carry out any deemed Variation or Variation
requested by the Client.
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11. Acknowledgement of Possible Delays
11.1 The Client acknowledges that completion of the Works may be suspended by the Contractor pursuant to clause 12 or delayed by any
cause beyond the control of the Contractor including; (a) a Variation or a request by the Client for a Variation; (b) an act of God, fire,
explosion, earthquake or civil commotion; (c) any weather condition that, in the reasonable opinion of the Contractor, prevents
work from being carried out in the usual manner; (d) an industrial dispute; (e) anything done or not done by the Client; (f) the delay
in the supply of materials; (g) the period known as "Building Industry Shutdown" being a five (5) week period commencing on or
about 22 December in each year; and (h) the Contract Documents not being fully completed or made available to the Contractor by
the date of the Agreement.
11.2 The Contractor shall not be liable for the failure to perform the Works or the Agreement to the extent and for so long as its
performance is prevented or delayed without substantial fault or negligence by the Contractor because of a circumstance referred to
in clause 11.1.
11.3 Where the costs of the Works has increased due to any delay beyond the control of the Contractor, there shall be a deemed
Variation and the Contractor shall be entitled to a reasonable increase in the Contract Price.
12.1 If the Client is in breach of the Agreement the Contractor may suspend the carrying out of the Works and must promptly give to the
Client written notice of the suspension and details of the breach.
12.2 The Contractor must recommence the carrying out of the Works within a reasonable time after the Client remedies the breach and
gives the Contractor written notice of that fact.
13. Practical Completion
13.1 The Contractor will give notice to the Client of Practical Completion of the Works within five (5) Business Days of Practical
Completion. A Progress Claim claiming the total Contract Price or the unclaimed balance of the Contract Price shall be deemed to be
notice of Practical Completion of the Works.
13.2 If the Client disagrees that the Works have reached the stage of Practical Completion the Client must notify the Contractor in writing
within five (5) Business Days of the notice of Practical Completion stating the reasons why the Works are not practically complete.
The Contractor shall as soon as practicable after receipt of such notice:
(a) complete those things as may be necessary to bring the Works to the stage of Practical Completion and give the Client a
further notice of Practical Completion, or
(b) reject the Client's notice and/or initiate dispute resolution procedures.
13.3 If the Client fails to give a notice pursuant to Clause 13.2, the Client is deemed to have acknowledged that the Works have reached
the stage of Practical Completion.
14. Hire of Equipment
14.1 This clause applies if the Agreement includes the hire of equipment to the Client.
14.2 In this clause:
(a) "Equipment" means the equipment specified in the Quotation to be hired to the Client;
(b) "Hire Fee" means the fee specified in the Quotation for the hire of the Equipment;
(c) "Hire Start Date" and Hire End Date" mean the dates so specified in the Quotation or such other date as the parties agree in
(d) "Hire Period" means the period commencing on the Hire Start Date and ending on the Hire End Date.
14.3 Subject to clause 14.9, the Contractor shall provide and the Client shall take on hire the Equipment for the Hire Period
14.4 The Client shall pay, at the same times as Progress Claims are due and payable under the Agreement:
(a) the Hire Fee to the Contractor progressively during the Hire Period,
(b) the Contractor's costs of delivering and/or collecting the Equipment to or from any site,
(c) the Contractor's costs of repairing any damage to the Equipment for which the Client is responsible, and
(d) the full replacement cost of the Equipment where the Client fails or refuses to return the Equipment or make the Equipment
available for collection.
14.5 The Client warrants that it:
(a) has inspected or had a reasonable opportunity to inspect the Equipment prior to placing the Order,
(b) has not relied on any representation by the Contractor in relation to the suitability of the Equipment for any purpose,
(c) will only use the Equipment in accordance with the recognized methods and use for equipment of the type, and
(d) will keep the Equipment clean and in good working order and repair and will comply with any maintenance schedules
referred to in the Quotation.
14.6 Except with the Contractor's prior written consent, the Client shall:
(a) keep Equipment at the location at which it was delivered or at which its intended use was disclosed to the Contractor prior to
collection and not remove the Equipment from that location,
(b) not make any replacement, alteration or addition to the Equipment, and
(c) keep the equipment in the Client's sole possession and control.
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14.7 The Client agrees to use, operate and possess the Equipment at the Client's risk. The Client shall be fully responsible for and liable to
the Contractor for any loss or damage to the Equipment howsoever occasioned, except fair wear and tear. The Client shall notify the
Contractor in writing as soon as practicable upon it becoming aware of any loss or damage to the Equipment in excess of fair wear
14.8 Title to the Equipment shall at all times vest in the Contractor. The Contractor shall be entitled to inspect the Equipment at any time
on reasonable notice.
14.9 In the event of any default or termination of the Agreement the Client shall return the Equipment to Contractor on demand.
15. Defects Liability Period
15.1 This clause applies if the Quotation specifies a defects liability period in relation to the Works.
15.2 The defects liability period shall commence on the date of Practical Completion.
15.3 The Client may, before the end of the defects liability period, give the Contractor one (1) list of defects in the Works that appear
after the date of Practical Completion.
15.4 The Contractor must rectify defects that are the Contractor' responsibility and which are notified to the Contractor during the
defects liability period within a reasonable time.
16. Dispute Resolution
16.1 The parties must attempt to resolve any dispute or claim arising out of or under the Agreement by negotiation in good faith before
either party commences any litigation in relation to the dispute or claim. Accordingly, if a party considers that a dispute or claim has
arisen under the Agreement they must give written notice to the other party adequately setting out and providing details of the
16.2 The Contractor and the Client must meet within ten (10) Business Days of the giving of a notice pursuant to clause 16.1 to attempt to
resolve the dispute or claim or to agree on methods of doing so. The parties must be represented at the meeting by a person with
authority to agree to a resolution of the dispute.
16.3 If the dispute is resolved the parties must write down the resolution and sign it.
16.4 The parties agree that anything done or said in the negotiations can not be revealed in any other proceedings.
16.5 Nothing in this clause affects the rights of the parties pursuant to the Security of Payment Law or prevents either party from
commencing urgent injunctive or interlocutory proceedings in a competent Court.
17. Default & Termination of Contract
17.1 Without limiting clause 17.2, a party may terminate the Agreement if:
(a) the other party is in default of the Agreement,
(b) the non-defaulting party has served notice in writing on the party setting out details of the default and stating that the party
will be entitled to terminate the Agreement unless the default is remedied within a specified time of not less than 14 days,
(c) the party fails to remedy the default within 14 days of receiving a notice under clause 17.1(b), or such longer period as may
be specified in the notice, and
(d) the non-defaulting party serves written notice of termination whilst the default remains unsatisfied.
17.2 If the Client fails to pay any money under the Agreement within seven (7) days of the due date for payment:
(a) the Contractor may terminate the Agreement by notice in writing to the Client,
(b) the Contractor shall be entitled to interest on the outstanding amount at the rate of 2.5% per calendar month calculated
daily from the due date for payment and compounding monthly on the first day of each month until payment is received,
(c) may without notice sell any Goods that the Contractor has recovered pursuant to clause 8 on such terms and in such manner
as it determines and, after deducting all expenses incurred, shall offset such proceeds from the balance owing from the
(d) the Client shall indemnity the Contractor from and against all costs and disbursements incurred or payable by the Contractor
in connection with the recovery of monies owing by the Contractor (including, without limitation, legal fees on an indemnity
basis, collection agency costs and bank dishonour fees), and
(e) the Contractor may cancel all or any part of the Works or works in connection with any other contract or contracts made with
the Client to which these terms and conditions apply whereafter all amounts payable by the Client to the Contractor shall
became payable immediately.
17.3 The Client agrees to pay to the Contractor, as genuine pre-estimate of the Contractor's costs:
(a) a processing and handling fee of $20.00 in respect of each payment made under the Agreement that is not in satisfaction, or
in satisfaction of the balance, of a Progress Claim, and
(b) a default fee of $50.00 in respect of any failure by the Client to pay a Progress Claim by the due date for payment or by the
corresponding day of each subsequent calendar month until the Progress Claim is paid in full.
18. Warranties & Representations
18.1 The Client warrants that the Works and/or Goods relate to 'construction work' or 'related goods and services' within the meaning of
the Security of Payment Law and that the Security of Payment Law will apply to the Agreement unless the Client has specified
otherwise in writing in the Order.
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18.2 Subject to clause 2.2 and except as expressly provided to the contrary in the Contract Documents, all representations, warranties,
guarantees and conditions in relation to the Works or the Goods (whether implied or otherwise) are hereby excluded to the
maximum extent permitted by law.
18.3 If the Client is aware (or should be aware) that the Works or the Goods are for a particular purpose or are required to possess
particular or uniform characteristics, the Client agrees to clearly specify that purpose or those characteristics in writing in the Order.
18.4 The Client warrants that it has made its own enquiries in relation to the suitability of the Works and the Goods and has not relied on
any representation made by the Contractor in relation to their suitability for any particular purpose.
19. Return of Goods
19.1 Subject to any applicable statute, unless the Contractor agrees otherwise in writing, the Contractor will only accept a return of the
(a) the Client has complied with clauses 6.5 and 6.6,
(b) the Contractor acting reasonably has agreed that the Goods are defective and not reasonably capable of repair,
(c) the Goods are returned at the Client's expense and within an reasonable time, and
(d) the Goods are returned, as far as possible, in the same condition as the Goods were delivered.
19.2 If the Contractor agrees in its absolute discretion to accept the return of any non-defective Goods, the Client shall:
(a) indemnify the Contractor in relation to any freight expense, and
(b) if required by the Contractor, pay handling fees of up to 10% of the price of the Goods returned.
20. Limitation of Liability
20.1 The Contractor's liability to the Client (and any party claiming through the Client against the Contractor) for any claim for loss or
damage (including legal expenses), whether arising in contract, tort or otherwise, in connection with the Agreement shall be as
(a) where the liability relates to the supply of services, the Contractor's liability shall be limited to the lesser of the costs of: (i)
supplying the services again, or (ii) payment of the costs of having the services supplied again, or
(b) where the liability relates to the supply of goods, the Contractor's liability shall be limited to the lesser of the cost of: (i)
replacement of the goods or the supply of equivalent goods, (ii) repair of the goods, (iii) payment of the costs of replacing the
goods or acquiring equivalent goods, or (iv) payment of the costs of having the goods repaired.
20.2 Notwithstanding any other term of the Agreement but subject to any applicable statute, the Contractor shall not be liable for any
defect, fault or damage to the Goods of any nature whatsoever:
(a) in respect of which notice was not provided in accordance with clauses 6.5 or 6.6, or
(b) resulting from or caused or contributed to in any way by: (i) the Client failing to properly maintain or store the Goods after
delivery, (ii) the Client using the Goods for any purpose other than that for which the Goods were designed, (iii) the Client
continuing to use the Goods after any defect became apparent or ought reasonably to have become apparent, (iv) the Client
failing to following any instructions or guidelines provided by the Contractor or the manufacturer of the Goods, or (v) fair
wear and tear or any accident or act of God.
20.3 If the Contractor did not manufacture the Goods, the Contractor's liability shall be limited to the lesser of the liability of the
manufacturer of the Goods to the Contractor and the liability determined under clause 20.1(b).
20.4 Unless the Quotation contains an express warranty, the Client acknowledges that the Goods supplied may exhibit variations in
shade, colour, texture, surface and finish and may fade or change colour over time. The Contractor shall make reasonable efforts to
match batches of products supplied and minimise such variations but shall not be liable in any what whatsoever where such
20.5 The Contractor shall not be liable for any indirect, special or consequential loss or damage of any nature whatsoever resulting from
or caused in any way by the carrying out of the Works or supply of the Goods.
21.1 In consideration for the Contractor entering into the Agreement, the Guarantor guarantees to the Contractor the performance by
the Client of all of the Client's obligations under the Agreement including any Variation.
21.2 If the Client does not pay any money due under the Agreement the Guarantor must pay that money to the Contractor on demand
without deduction, set-off or counterclaim even if the Contractor has not tried to recover payment from the Client.
21.3 Even if the Contractor gives the Client extra time to comply with an obligation under the Agreement or does not insist on strict
compliance with the terms of the Agreement the Guarantor's obligations will not be affected.
21.4 Where a payment made by the Client or the Guarantor to the Contractor is set aside by law, the parties are restored to their
respective positions prior to the payment being made and are entitled to exercise all rights which they had under the Agreement.
21.5 If there is more than one (1) Guarantor:
(a) (a) this guarantee shall be binding on each of them jointly and severally, and
(b) (b) the release by the Contractor of any Guarantor from this guarantee does not affect the liability of any other Guarantor.
21.6 The Guarantor's liability under this clause is continuing and unlimited.
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22. Personal Property Security
22.1 In this clause 'amendment demand', 'attaches', 'financing statement', 'financing change statement', 'security agreement', 'security
interest' and 'verification statement' have the meanings given to them by the PPSA.
22.2 The Client and the Guarantor, if any, hereby charge the Goods and all of their respective personal property as security for the
performance by the Client of the Client's obligations under the Agreement.
22.3 The Client acknowledges and agrees that:
(a) the Agreement constitutes a security agreement for the purposes of the PPSA, and
(b) a security interest exists in all goods (and their proceeds) previously supplied by the Contractor to the Client (if any) and in all
future goods supplied (and their proceeds),
(c) the Client has received or will receive value as at the date of first delivery of the Goods (or any part of the Goods) and that the
Contractor has not agreed to postpone the time the security interest attaches to the Goods, and
(d) where the Contractor has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply.
22.4 The Client shall:
(a) promptly sign all documents and provide any further information that the Contractor may reasonably require to register a
financing statement or financing change statement in relation to a security interest granted to the Contractor under the
Agreement or any other document required to be registered under the PPSA,
(b) notify the Contractor in writing of any intention to change the Client's business practices to include the sale or leasing of
goods of like kind to the Goods (or any part thereof) in the ordinary course of the Client's business, and
(c) on demand reimburse the Contractor for all costs and expenses incurred in registering a financing statement or financing
22.5 The Client must not, without the Contractor's prior written consent:
(a) register or permit to be registered a financing statement or financing change statement in relation to the Goods in favour of
a third party, or
(b) register or cause to be registered a financing change statement in respect of a security interest granted under the Agreement,
(c) issue or permit any other person to issue an amendment demand to the Contractor unless all monies payable by the Client
under the Agreement have been received by the Contractor in cleared funds.
22.6 Any requirement under the PPSA on the part of the Contractor to give a notice to the Client or any Guarantor shall not, to the extent
that the requirement may be contracted out of (including, without limitation, under Section 115(1) of the PPSA), apply to the
Agreement. Further, to the extent that that the Client and/or the Guarantor may waive the right to receive a notice under the PPSA
(including, without limitation, notice in relation to a verification statement under Section 157(1) of the PPSA), the Client and the
Guarantor waives that right.
22.7 The Client irrevocably authorises and licenses the Contractor to enter upon the Client's property or premises, without notice, and
without being in any way liable to the Client, if the Contractor has cause to exercise any of the Contractor's rights under Section 123
of the PPSA, and the Client shall indemnify the Contractor from any claims made by any third party as a result of such exercise.
22.8 The Contractor and the Client agree to treat information of the kind referred to in Section 275(1) of the PPSA as confidential. Neither
the Contractor or the Client will disclose, send or make available any of the information referred to in Section 275(1) of the PPSA to
any person except as required by law or the Agreement.
22.9 The Contractor and the Client acknowledge and agree that clause 22.8 constitutes a confidentiality agreement pursuant to Section
275(6) of the PPSA.
23. Real Property Security
23.1 The Client and the Guarantor, if any, hereby charges all their right, title and interest in any real property or other assets capable of
being charged that they, or any of them, own or hereafter own either solely or jointly, in favour of the Contractor as security for the
performance of the Client's obligations pursuant to the Agreement and authorises the Contractor to register a Caveat over the title
of any such property in the event of a default by the Client under the Agreement.
23.2 The Client shall indemnify the Contractor from and against all costs and disbursements incurred or payable by the Contractor in
connection with exercise of the Contractor's rights under clause 23.1 (including, without limitation, legal fees on a solicitor-client
basis, stamp duty and registration fees).
24. Intellectual Property
24.1 Where the Contractor has designed, drawn or developed unique and/or original designs or drawings in connection with the Works
or any Goods, copyright in such designs or drawings shall vest in the Contractor.
24.2 The Client warrants that the Contractor is entitled to use all documents and drawings provided by the Client for the purposes of
performing the Works and that such use will not infringe any third party's intellectual property rights.
24.3 The Client shall indemnify the Contractor from and against all claims and all losses and damages incurred by the Contractor as a
consequence of any claim against the Contractor for infringement of a third party's intellectual property rights in connection with
the carrying out the Works or supply of the Goods in accordance with a document that is; supplied by, prepared under the
instruction of, or prepared from sketches provided by, the Client.
24.4 The Client authorises the Contractor to use any documents, designs, drawings or goods that the Contractor has created for the Client
including photographs thereof for the purposes of marketing the Contractor's business or entry into any competition.
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25. Subcontracting & Assignment
25.1 The Contractor may subcontract the whole or any part of the Works but remains responsible for all of the Works.
25.2 The Contractor may assign the Agreement to any person. In the event of the assignment the Client may, if it has reasonable grounds
to believe that the assignee will not comply with the Agreement, within seven (7) days of receiving notice of the assignment
terminate the Agreement by 30 days written notice to the Contractor whereafter the termination will be effective unless the
assignment is withdrawn.
26.1 Notwithstanding any other clause herein the Contractor may cancel any agreement to which these terms and conditions apply at
any time before the Works are commenced or Goods delivered by giving written notice to the Client whereafter any deposit or other
amount paid by the Client on account of the Works or the Goods shall become immediately repayable to the Client. The Contractor
shall not be liable for any consequential loss or damage in relation to any such cancellation.
26.2 If the Client purports to cancel the Agreement, without limiting any other right available to the Contractor, the Client shall be liable
to the Contractor for any and all loss or damage suffered by the Contractor in connection with the cancellation including, without
limitation, loss of profit in respect of the Works and supply of the Goods and/or loss of profits in respect of orders and opportunities
foregone as a result of the scheduling of the Works.
27. Privacy Act 1988 (Cth)
27.1 Despite clause 1.5, this clause applies upon the making of an Order before and after any Order Acceptance.
27.2 The Client and the Guarantor, if any, consent to the Contractor obtaining a Credit Report from a credit reporting agency in relation
to the Client and the Guarantor respectively for the purpose of:
(a) assessing the creditworthiness of the Client, and
(b) the collection of payments that are overdue in respect of commercial credit.
27.3 The Client and the Guarantor, if any, agree that the Contractor may exchange information about the Client and the Guarantor with
those credit providers either named as trade referees by the Client or named in a Credit Report issued by a credit reporting agency
for the following purposes:
(a) to assess an application for commercial credit by the Client,
(b) to notify other credit providers of a default by the Client,
(c) to exchange information with other credit providers, where the Client is in default with other credit providers, and
(d) to assess the creditworthiness of the Client.
27.4 The Client and the Guarantor, if any, consent to the Contractor using any personal information collected by the Contractor for the
following purposes or as required by law:
(a) the performance of the Works and/or supply of Goods,
(b) the marketing of the supply of Goods or services by the Contractor,
(c) the analysing, verifying and checking of the Client's credit and/or payment status in relation to the performance of the Works
and/or supply of Goods,
(d) the processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client, and
(e) enabling the daily operation of the Client's account and/or the collection of amounts outstanding in the Client's account in
relation to the performance of the Works and/or supply of Goods.
27.5 The Contractor may give information about the Client and the Guarantor to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client and/or the Guarantor, or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client
and/or the Guarantor.
28.1 The Contract Price and all other monies payable by the Client pursuant to the Agreement are exclusive of GST.
28.2 If The Contractor incurs a liability to pay GST in connection with a supply to the Client pursuant to the Agreement, the consideration
that the Client must pay to the Contractor for the supply is increased by an amount equal to the GST liability that the Contractor
incurs in making the supply and the amount of the GST liability is payable at the same time and in the same manner as the
consideration in respect of the supply is payable.
28.3 The Contractor shall provide the Client with a tax invoice for any GST included in any payment made pursuant to the Agreement.
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29.1 The parties agree that email shall be the primary method of contact and communication in relation to any matters arising under the
29.2 A notice is deemed to have been given or serviced if the notice is:
(a) delivered by hand to the other party,
(b) posted by ordinary prepaid mail to the other party's address (including a Post Office Box) stated in the Quotation or Order on
the second Business Day following the date of posting, or
(c) sent by facsimile transmission to the parties' facsimile number stated in the Quotation or Order upon receiving confirmation
of delivery of the transmission, or
(d) sent by email to the parties' email address stated in the Quotation or Order upon receiving confirmation of delivery of the
email without error.
30.1 Payments may only be made by cash, bank cheque, electronic funds transfer or credit card (unless the Contractor agrees otherwise
in relation to a payment). The Client agrees to pay a surcharge equal to 2.5% in respect any payment made via credit card.
30.2 The Client may not; (a) set off against or deduct from any monies payable under the Agreement any sums owed or claimed to be
owed by the Contractor to the Client, or (b) withhold payment of any Progress Claim because the Progress Claim or part of it is in
30.3 The Agreement embodies the whole agreement between the parties relating to the subject matter of the Agreement and
supersedes any and all oral and written negotiations and communications by or on behalf of any of the parties.
30.4 The terms in the Agreement may not be varied, waived, discharged or released, except with the prior written consent of the parties.
30.5 No right under the Agreement is waived or deemed to have been waived in relation to any particular instance unless in writing and
signed by the party waiving the right. A party does not waive its right under the Agreement by granting an extension of time or any
other forbearance to another party.
30.6 The Agreement shall be governed by and constructed pursuant to the laws of the State or Territory in which the Order is received.
The parties irrevocably submit to the jurisdiction of the Courts of that State or Territory in connection with any dispute relating to
the Agreement. The parties further agree that the Court of competent jurisdiction located closest to the Contractor's principal place
of business in the relevant State or Territory shall be the appropriate Court for the hearing of any claims in connection with this
30.7 The parties agree that a construction of the Agreement that results in all provisions being enforceable is to be preferred to a
construction that does not so result.
30.8 If, despite the application of clause 30.7, a provision of the Agreement is illegal or unenforceable:
(a) if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed;
(b) in any other case, the whole provision is severed,
and the remainder of the Agreement continues in force.
31. Definitions & Interpretation
31.1 In these terms and conditions:
(a) "Agreement" means the agreement between the Client and the Contractor arising from the Contractor's acceptance of an
Order from the Client;
(b) "Authority" means the Local Government, State or Federal Government, or any Government agency that has power to affect
(c) "Business Day" means any day other than Saturdays, Sundays or public holidays;
(d) "Client" means the party named as the Client or customer in the Quotation, or if there was no written Quotation, in the
(e) "Contract Documents" means these terms and conditions, the Order, the Quotation, the Order Acceptance and the plans (or
measurements) and specifications, if any, specified in the Quotation;
(f) "Contract Price" means the amount or rates stated as the price in the Quotation, or if there was no written Quotation, in the
(g) "Exclusions" means the exclusions described in the Quotation;
(h) "Goods" means any equipment, goods and other parts and components to be supplied by the Contractor as part of or in
connection with the Works or otherwise described in the Contract Documents;
(i) "GST" has the same meaning as given to it in the A New Tax System (Goods and Services Tax) Act 1999.
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(j) "Guarantor" means the person or persons who have signed the Order as Guarantor and includes their executors,
administrators, successors and assigns;
(k) "Order" means a work order or purchase order in writing issued by the Contractor in relation to a Quotation,
(l) "Order Acceptance" is defined in clause 1.4.
(m) "Payment Schedule" means a Payment Schedule as defined by the laws in the State or Territory applying to the Agreement
governing the rights of parties in the building and construction industry to obtain security for payment and, in New South
Wales being the Building and Construction Industry Security of Payment Act 1999;
(n) "PPSA" means the Personal Property Securities Act 2009 (Cth);
(o) "Practical Completion" means when the Works are complete except for minor omissions and defects that do not prevent the
Works from being reasonably capable of being used for their usual purpose;
(p) "Profit Margin" means a margin of 25% plus GST or such other margin specified in the Quotation.
(q) "Progress Claim" means both a tax invoice as defined in the A New Tax System (Goods and Services Tax) Act 1999 and a
Payment Claim in defined by the laws in the State or Territory applying to the Agreement governing the rights of parties in
the building and construction industry to obtain security for payment and, in New South Wales being the Building and
Construction Industry Security of Payment Act 1999;
(r) "Quotation" means the proposal, if any, provided by the Contractor to the Client in respect of the Works and/or the Goods to
which the Order relates;
(s) "Security of Payment Law" means the laws in the State or Territory applying to the Agreement governing the rights of parties
in the building and construction industry to obtain security for payment and, in New South Wales being the Building and
Construction Industry Security of Payment Act 1999;
(t) "Site" means the address at which the Works are to be carried out as specified in the Quotation or if there was no written
Quotation, in the Order or the Order Acceptance;
(u) "Contractor" means REFCA Service Pty Limited ABN 82 160 943 073, it's successors and assigns;
(v) "Variation" means to vary the Works by; carrying out additional work, omitting any part of the Works or changing the scope
of the Works.
(w) "Works" means the work described in the Contract Documents and includes Variations but excludes the Exclusions.
31.2 In the Agreement, unless otherwise indicated by the context:
(a) the singular includes the plural and vice versa;
(b) a reference to one gender includes a reference to all other genders;
(c) headings to clauses are included for the sake of convenience only and will not affect the interpretation of the clauses to
which they relate;
(d) references to any statute or statutory provision include that statute or statutory provision as amended, extended,
consolidated or replaced by subsequent legislation and any Orders, regulations, instruments or other subordinate legislation
made under the relevant statute;
(e) the word person means and includes a natural person, a company, a firm or any other legal entity whether acting as a trustee
(f) the Agreement will bind each party's legal personal representatives, successors and assigns; and
(g) where a party comprises two (2) or more persons the rights and obligations of such persons pursuant to the Agreement will
ensue for the benefit of and bind each of them jointly and severally.