YARROW PLUMBING SERVICES’ TERMS AND CONDITIONS OF TRADE
1.1 Application of these Terms and Conditions
The Customer agrees that prior to placing an order with the Contractor, the Customer has read and agreed to the terms and conditions as set out hereunder. For the purposes of this agreement, “Contractor” is YARROW PLUMBING SERVICES A.B.N. 53 104 588 445 and the Customer is the applicant named on the account with the Contractor or where no account exists then on the Quote and/or Work Authorisation provided by the Contractor to the Customer. In this Agreement “Goods” means goods and services.
2.1 Contractor Supply Quote – The Contractor shall give the Customer a Quote specifying:
(a) the work required to be done in order to fulfill the Customer’s instructions; and
(b) an estimate of the Contractor’s charge for the performance of such work.
2.2 Acceptance by the Customer – Where the Contractor has given the Customer a Quote:
(a) The Contractor need not commence work until the Quote has been accepted by the Customer;
(b) The Customer shall accept the Quote by instructing (in writing) the Contractor to commence the works by signing and returning a true copy of the Quote and/or Work Authorisation accompanied with a purchase order number (if applicable);
(c) Acceptance by the Customer of the Quote will constitute acceptance by the Customer of these Terms and conditions.
(d) Quotes are valid for thirty (30) days only, unless an extension has been authorised by the Contractor.
In acceptance of the Quote, the Customer warrants that it has not relied on any representation by the Contractor and its employees and agents other than as supplied in writing in the Quote.
3.1 Goods – Delivery of the Goods shall be made to the Customer’s nominated address.
The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. The Customer shall indemnify the Contractor from any costs incurred should site access not be available and subsequently the Contractor is unable to make delivery. Delivery of Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of this agreement. The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated. The Contractor shall not be liable for any loss or damage whatever due to the failure by the Contractor to deliver the Goods (or any part of them) promptly or at all.
4.1 Time for Payment – The Customer must, within the time specified in the Contractor’s invoice, pay the Contractor the total amount set out in the invoice.
4.2 Interest – The Contractor may charge interest at 2.5% per calendar month on amounts not paid within the time specified in clause 4.1 and 4.4.
4.3 Deposit – The Contractor may require a deposit from the Customer, and if a deposit is so requested by the Contractor the Customer acknowledges the Contractor is under no obligation to start the contract period or undertake any works as requested by the Customer, until the Deposit is received by the Contractor in full and when all details pertaining to contract are finalised. In the event of default as to payment owing to the Contractor on the part of the Customer, the Contractor shall be entitled to forfeit the deposit and claim for the balance owing on the Order and for any other loss suffered by the Contractor by way of any remedy available to it as provided in these Terms and Conditions or at law or in equity generally.
4.4 Progress Payments – When agreed progress payments are not honoured by the Customer, the Contractor reserves the right to halt any further work until such time as the outstanding payment is forthcoming. In addition interest (as specified in 4.2) may be charged.
4.5 Damages – The Customer must pay to the Contractor any costs, expenses or losses incurred by the Contractor as a result of the Customer’s failure to pay to the Contractor all sums outstanding as owed by the Customer to the Contractor including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a Solicitor and own client basis.
4.6 Contractors Indemnity – The Customer shall:
(a) ensure they or their representative remains on the job site during the performance of the Contractor’s work;
(b) sign off that the work has been completed by the Contractor in accordance with the Quote; and
(c) indemnify the Contractor from any claims or charges relating to the damage and/or loss of property from the job site if the Customer has not complied with the conditions specified in 4.6 (a).
5.1 Delivery – The risk in the Goods shall pass to the Customer upon delivery/installation of the Goods to the Customer or its agent or to a third party nominated by the Customer.
6. RETENTION OF TITLE
6.1 Title – Notwithstanding the delivery of the Goods or their installation, title in any particular Goods shall remain with the Contractor regardless of whether the Goods are on-sold by the Customer until the Customer has paid and discharged any and all monies owing pursuant to any invoice issued by the Contractor for the Goods, including all applicable GST and other taxes, levies and duties. Any payment made by or on behalf of the Customer which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge the Contractor’s title in the Goods nor the Customer’s indebtedness to the Contractor and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
6.2 Bailment – The Customer acknowledges that it is in possession of the Goods solely as Bailee until payment of all invoices for the Goods is made pursuant to clause 6.1 and until that time:
(a) The Customer must not encumber or otherwise charge the Goods;
(b) The Customer shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery or installation of the Goods to the Customer.
6.3 Repossession – The Customer hereby irrevocably grants to the Contractor the right, at its sole discretion, to remove or repossess any Goods from the Customer and sell or dispose of them, and the Contractor shall not be liable to the Customer or any person claiming through the Customer and the Contractor shall be entitled to retain the proceeds of any Goods sold and apply same towards the Customer’s indebtedness to the Contractor.
If the Customer commits an act of bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business or breaches any fundamental clause of this agreement, then the Contractor may, without prejudice to any other remedies it may have, repossess any Goods to the Customer on any account which has not been paid in accordance with the terms and conditions herein and commence proceedings to recover the balance of any monies owing the Contractor by the Customer.
7.1 Any warranty as to the Goods on the part of the Customer shall be limited to the written Warranty provided by the Manufacturer to the Customer on or before installation of the Goods.
7.2 The Contractor reserves the right to make null and void the warranty should the goods be modified, altered, damaged or put to any undue stress other than in the way the goods were designed to perform.
7.3 In respect of all claims the Contractor shall not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Customer’s claim.
8. DEFECTS/RETURN OF GOODS
The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Contractor of any alleged shortage in quantity, damage or failure to comply with the description. The Customer shall afford the Contractor 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 conclusively presumed to be in accordance with the terms and conditions and free from any damage.
9.1 Non-excludable Rights – The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Customer in relation to the provision of the Goods or of services which cannot be excluded, restricted or modified by the Agreement (“Non-excludable Rights”).
9.2 Disclaimer of Liability – The Contractor disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of the Contractor for a breach of a Non-Excludable Right is limited, at the Contractor’s option, to the supplying of the Goods and/or any services again or payment of the cost of having the Goods and/or services supplied again.
9.3 Indirect Losses – Notwithstanding any other provision of these Terms and Conditions, the Contractor is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Customer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) any loss or expense resulting from a claim by a third party; or
(d) any special, indirect or consequential loss or damage of any nature whatsoever caused by the Contractor’s failure to complete or delay in completing the Order or to deliver the Goods.
9.4 Force Majeure – The Contractor will have no liability to the Customer in relation to any loss, damage or expense caused by the Contractor’s failure to complete the Order or to deliver the Goods as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of the Contractor’s normal suppliers to supply necessary material or any other matter beyond the Contractor’s control.
10.1 The Customer hereby authorises the Contractor to collect, retain, record, use and disclose consumer and/or commercial information about the Customer, in accordance with the Privacy Act 1988, to persons and/or legal entities who are a Solicitor or any other professional consultant engaged by the Contractor, a Debt Collector, Credit Reference Organisation and/or any other individual or organisation which maintains credit references and/or default listings.
10.2 The Customer also authorises the Contractor to make enquiries with respect to the Customer’s consumer and commercial credit worthiness; to exchange information with other Credit Providers in respect to previous consumer and commercial defaults of the Customer and to notify other Credit Providers of a consumer and/or commercial default by the Customer.
11. SECURITY & CHARGE
The Customer hereby charges all property, both equitable and legal, present or future of the Customer in respect of any monies that may be owing by the Customer to the Contractor under the Terms and Conditions or otherwise and hereby authorises the Contractor or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Customer at any time or to register this charge over assets of the Customer with the Australian Securities and Investments Commission.
12. DISPUTE RESOLUTION
Without prejudice to either party’s rights under the Building and Construction Industry Payments Act 2004 and the Subcontractors’ Charges Act 1974, either party may refer any dispute under, or arising out of, this contract to the Institute of Arbitrators & Mediators Australia, for resolution under the Rules of the Construction Industry Dispute Resolution Scheme. Each case will first be referred to a Conciliator appointed by the Institute unless each party wishes to proceed directly to arbitration. If the conciliation is not satisfactorily concluded within six weeks or if the parties want to proceed directly to arbitration, the Institute will appoint an Arbitrator who will make a final and binding award.
13. GENERAL MATTERS
13.1 No Waiver – A power or right is not waived solely because the party entitled to exercise that power or right does not do so. A single exercise of a power or right will not preclude any other or further exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
13.2 Severability – Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
13.3 Governing Law and Jurisdiction – These Terms and Conditions are governed by the law in force in the State or Territory in which the Contractor’s premises are located and the parties submit to the non-exclusive jurisdiction of the courts of that State or Territory and any courts which may hear appeals from those courts in respect of any proceedings in connection with these Terms and Conditions.
Copyright Ledger Guard Pty Ltd May 2006