HUTCHINS PLUMBING & GAS
Terms & Conditions of Trade
1.1 “Service Provider” shall mean Hutchins Plumbing & Gas ABN 66 121 794 162 its successors and assigns or any person acting on behalf of and with the authority of Hutchins Plumbing & Gas ABN 66 121 794 162.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Service Provider to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Service Provider to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Service Provider to the Customer.
1.5 ”Services” shall mean all Services supplied by the Service Provider to the Customer and includes any advice of recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between the Service Provider and the Customer in accordance with clause 3 of this contract.
2.1 Any instructions received by the Service Provider from the Customer for the supply of Goods and Services and/or the Customer’s acceptance of Goods and/or Services supplied by the Service Provider shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customer shall jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Service Provider.
2.4 The Customer should give the Service Provider not less than (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Service Provider as a result of the Customer’s failure to comply with this clause.
3 Price and Payment
3.1 At the Service Provider’s sole discretion the Price shall be either
(a) as indicated on invoices provided by the Service Provider to the Customer in respect of Goods Supplied and/or Services provided; or
(b) the Service Provider’s quoted Price (subject to clause 3.2) which shall be binding upon the Service Provider provided the Customer shall accept the Service Providers quotation in writing within thirty (30) days.
3.2 The Service Provider reserves the right to change the Price on the event of a variation to the Service Provider’s quotation.
3.3 At the Service Provider sole discretion a deposit and / or progress payments may be required.
3.4 The Service Provider may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed.
3.5 At the Service Provider’s discretion and unless otherwise agreed:
(a) payment shall be due on completion of the Services; or
(b) payment for approved Customer’s shall be made by installments in accordance with the Service Provider’s payment schedule.
3.6 Time for payment for the Goods/Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of invoice.
3.7 Payment will be made by cash or by eftpos.
3.8 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.
4. Delivery of Goods/Services
4.1 Delivery of the goods shall take place when the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the goods are delivered by the Service Provider’s nominated carrier).
4.2 At the Service Provider’s sole discretion the costs of the delivery are included in the Price.
4.3 The Customer shall make all arrangements necessary to take delivery of the Goods when they are tendered for delivery. In the event of the Customer unable to take delivery of the Goods as arranged then the Service Provider shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
4.5 The Service Provider may deliver the Goods by separate installments. Each separate installment shall be invoiced and paid in accordance with provisions on these terms and conditions.
4.6 The failure of the Service Provider to deliver shall not entitle either party to treat this contract as repudiated.
4.7 The Service Provider shall not be responsible for any loss or damages whatever due to failure by the Service Provider to deliver the Goods (or any of them) promptly of at all.
5.1 If the Service Provider retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Service Provider is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Service Provider is sufficient evidence of the Service Provider’s right to receive the insurance proceeds without the need of any person dealing with the Service Provider to make further enquires.
6 Underground Locations
6.1 Prior to the Service Provider commencing any work the Customer must advise the Service Provider of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer connections, sewer sludge mains, water mains, irrigation pipes, Telstra cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
6.2 Whilst the Service Provider will take all care to avoid damage to any underground services the Customer agrees to indemnify the Service Provider in respect of all and any liability claims, loss, damage, costs, and fines as a result of damage to services not precisely located and notifies as per clause 6.1.
7.1 The Service Provider and Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Service Provider all amounts owing for the particular Goods; and
(b) the Customer has net all other obligations due by the Customer to the Service Provider in respect of all contracts between the Service Provider and the Customer.
7.2 Receipt by the Service Provider of any form of payment other than
Cash shall not be deemed to be payment until that form of payment has been honoured, cleaned or recognised and until then the Service Provider’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Service Provider shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from the Service Provider to the Customer the Service Provider may give notice in writing to the Customer to return the Goods or any of them to the Service Provider. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Service Provider shall have the right of stopping Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to the Service Provider then the Service Provider of the Service Provider’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as the Service Provider has received payment on full for the Goods then the Customer shall hold any proceeds from the sale of disposal of the Goods on trust for the Service Provider; and
(f) the Customer shall not deal with the money of the Service Provider in any way which may be adverse to the Service Provider; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Service Provider; and
(h) the Service Provider can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Service Provider will be the owner of the end products.
8 Customer’s Disclaimer
8.1 The Customer hereby disclaims any right to rescind, or cancel any contract with the Service Provider or to sue for damages of to claim restitution arising out of any misrepresentation made to the Customer by the Service Provider and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
9.1 The Customer shall inspect the Goods on delivery and shall with one (1) day of delivery (time being of the essence) notify the Service Provider of any alleged defect, shortage in quality, damage or failure to comply with the description of quote. The Customer shall afford the Service Provider an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect of damage. For defective Goods, which the Service Provider has agreed in writing that the Customer is entitled to reject, the Service Provider’s liability is limited to either (at the Service Provider’s discretion) replacing the Goods of repairing the Goods or repairing the Goods, except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (Cth) of the Fair Trading Acts of the relevant state of territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9.2 Goods will not be accepted for return other than in accordance with clause 9.1 above.
10 The Commonwealth Trade Practices Act 1974 (“TPA”)
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except permitted by those Acts where applicable.
11.1 Subject to the conditions of warranty set out in clause 11.2 the Service Provider warrants that if any defect in any workmanship of the Service Provider becomes apparent and is reported to the Service Provider within six (6) months of the date of delivery (time being of the essence)
then the Service Provider will either (at the Service Provider’s sole discretion) replace or remedy the workmanship.
11.2 The conditions applicable to the warranty given by clause 11.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Service Provider; or
(iii) any use of any Goods otherwise than for any application specified on a quote or orderform; or
(iv) the continued use of any Goods after any defect becomes apparent of would have become of would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and the Service Provider shall thereafter in no circumstances be liable under the terms
of the warranty if the workmanship is repaired, altered or overhauled without the Service Provider’s consent.
(c )in respect of all claims the Service Provider shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customers claim.
11.3 For Goods not manufactured by the Service Provider, the warranty shall be the current warranty provided by the manufactured of the Goods. The Service Provider shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
12 Intellectual Property
12.1 Where the Service Provider has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in the Service Provider, and shall only be used by the Customer at the Service Provider’s discretion.
12.2 The Customer warrant that all designs of instructions to the Service Provider will not cause the Service Provider to infringe any patent, registered design or trademark and the execution of the Customer’s order and the Customer agrees to indemnify the Service Provider against any action taken by a third party against the Service Provider in respect of any such infringement.
13 Default & Consequence of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes sue, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
13.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Service Provider from and against all costs and disbursements incurred by the Service Provider in pursuing the debt including legal costs on a solicitor and own client basis and the Service Providers’s collection agency costs.
13.3 Without prejudice to any other remedies the Service Provider may have, if any time the Customer is in breach of any obligation (including those relating to payment), the Service Provider may suspend of terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Service Provider will not be liable to the Customer for any loss or damage the Customer suffers because the Service Provider has exercised its rights under this clause.
13.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable .
13.5 Without prejudice to the Service Provider’s other remedies at law the Service Provider shall be entitled to cancel all of any part of any order of the Customer which remains unfulfilled and all amounts owing to the Service Provider shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Service Provider becomes overdue, or in the Service Provider’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors of 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 Customer or any asset to the Customer.
14 Security And Charge
14.1 Despite anything to the contrary contained herein of any other rights which the Service Provider may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Service Provider or the Service Provider’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Service Provider (or the Service Provider’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been meet.
(b) should the Service Provider elect to proceed in any manner in accordance with this clause and/or its sub-clause, the Customer and/or Guarantor shall indemnity the Service Provider from and against all the Service Provider’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Service Provider or the Service Provider’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15.1 The Service Provider 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 Customer. On giving such notice the Service Provider shall repay to the Customer any sums paid in respect of the Price. The Service Provider shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 In the Event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Service Provider (including, but not limited to, any loss of profits) up to the time of cancellation.
16 Privacy Act 1988
16.1 The Customer and/or the Guarantor/s agree for the Service Provider to obtain from a credit reporting agency a credit report containing credit information about the Customer and Guarantor/s in relation to credit provided by the Service Provider.
16.2 The Customer and/or the Guarantor/s agree that the Service Provider may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or the named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assist an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or;
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(b) to assess the credit worthiness of Customer and/or Guarantor/s.
16.3 The Customer consents to the Service Provider being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act.
16.4 The Customer agrees that personal credit information provided may be used and retained by the Service Provider for the following purposes and for other purposes as shall be agreed between the Customer and Service Provider or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by the Service Provider, its agents or distributors in relation to the Goods, and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debt facilities and/or credit facilities requested by Customer; and or
(e) enabling the daily operations of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
16.5 The Service Provider may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
17 Building and Construction Industry Payments Act 2004
17.1 At the Service Provider’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 Payments Act 2001 may apply.
17.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2001 of Queensland, except to the extent permitted by the Act where applicable.
18.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforcement for the remaining provisions shall not be affected, prejudiced of impaired.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
18.3 The Service Provider shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Service Provider of these terms and conditions.
18.4 In the event of any breach of this contract by the Service Provider the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of Goods.
18.5 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Service Provider.
18.6 The Service Provider may license of sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.7 The Service Provider reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Service Provider notifies the Customer of such change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
18.9 The failure by the Service Provider to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Service Provider’s right to subsequently enforce that provision.
19.1. Defined terms in clause 22 have the same meaning as given to them in the PPSA.
(a) The Service Provider and the Customer acknowledge that this Agreement constitutes a Security Agreement and gives rise to a Purchase Money Security Interest (PMSI) in favour of the Service Provider over the Goods supplied or to be supplied to the Customer, as Grantor, pursuant to this Agreement. (b) The Goods supplied or to be supplied under this Agreement fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these Terms of Trade. (c) The Service Provider and the Customer acknowledge that the Service Provider, as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to Customer, as Grantor, under this Agreement on the PPSA Register as Collateral.
19.2 The Customer waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to the Service Provider.
19.3 The Customer agrees to indemnify the Service Provider on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
(a) registration or amendment or discharge of any Financing Statement registered by or on behalf of the Service Provider; and (b) enforcement or attempted enforcement of any Security Interest granted to the Service Provider by the Customer.
19.4 The Customer agrees:
(a) that, to the extent permitted at law, nothing in sections 130 to 143 of the PPSA will apply to these Terms of Trade or the Security under these Terms of Trade;. (b) to waive its right to do any of the following under the PPSA:
(i) receive notice of removal of an Accession under section 95; (ii) receive notice of an intention to seize Collateral under section 123; (iii) receive notice of disposal of Collateral under section 130; (iv) receive a Statement of Account if there is no disposal under section 130(4); (v) receive notice of retention of Collateral under section 135; (vi) redeem the Collateral under section 142; (vii) reinstate the Security Agreement under section 143; (viii) object to the purchase of the Collateral by the Secured Party under section 129; and (ix) receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.