Shailer Park Plumbing
TERMS & CONDITIONS
Please make sure you are familiar with our Terms and Conditions on this page, then download print and initial each page of this PDF.
| commercial_tot_long_-_10810.pdf |
Fintin Pty Ltd T/A Shailer Park Plumbing – Commercial Terms and Conditions of Trade
1. Definitions
1.1 “Plumber” shall mean Fintin Pty Ltd T/A Shailer Park Plumbing its successors and assigns or any person acting on behalf of and with the authority of Fintin Pty Ltd T/A Shailer Park Plumbing.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the written authority of the Client.
1.3 “Work” shall mean all Works (including the supply of Materials) undertaken by the Plumber and described in this
contract and includes any advice or recommendations.
1.4 “Materials” shall means Materials required to complete the Works.
1.5 “Price” shall mean the Price of the Works as agreed between the Plumber and the Client.
2. Acceptance
2.1 Any instructions received by the Plumber from the Client for the supply of Works and/or the Client’s acceptance of Works undertaken by the Plumber shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client, the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the Plumber.
2.4 None of the Plumber’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Plumber in writing nor is the Plumber bound by any such unauthorised statements.
2.5 The Client shall give the Plumber not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Plumber as a result of the Client’s failure to comply with this clause.
3. Price And Payment
3.1 At the Plumber’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Plumber to the Client in respect of Works supplied; or
(b) the Plumber’s quoted Price (subject to clause 4) which shall be binding upon the Plumber provided that the
Client shall accept the Plumber’s quotation in writing within thirty (30) days.
3.2 At the Plumber’s sole discretion a deposit may be required.
3.3 At the Plumber’s sole discretion:
(a) payment shall be due on delivery of the Works; or
(b) payment shall be due before delivery of the Works; or
(c) payment for approved Clients shall be made by instalments in accordance with the Plumber’s payment schedule.
3.4 Time for payment for the Works shall be of the essence and will be stated on the invoice. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.5 The Plumber 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 Materialsdelivered to the site but not installed.
3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Plumber.
3.7 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in the building contract schedule.
4. Variations
4.1 In the event that the Client requests a variation, the Plumber will give the Client a written variation document detailing the Work, the Price, the estimated time to undertake the variation, and the likely delay, if any and require written acceptance of the variation before commencing Work on the variation.
4.2 In the event that the Plumber requests a variation, the Plumber will state the reason for the variation in writing and require written acceptance by the Client of the variation before commencing Work on the variation.
4.3 In the event of unforeseeable problems with the site which are only revealed when undertaking the Works thePlumber may carry out any Work needed to fix any such problem if the Plumber considers it necessary for satisfactory and safe completion of the Works. Any additional Work necessary due to an unforeseen problems is to be treated as a variation. However if a Price is not agreed upon then the Client will be charged at the Plumber’s actual cost plus twenty (20%) percent for the Works.
5. Delivery Of Works
5.1 Subject to clause 5.2 it is the Plumber’s responsibility to ensure that the Works start as soon as it is reasonably possible.
5.2 The Works commencement date will be put back and the building period extended by whatever time is reasonable in the event that the Plumber claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Plumber’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for installation; or (c) notify the Plumber that the site is ready.
5.3 The Works shall be deemed to be practically completed when subject to clauses 6.1 & 6.2 the Works carried out under this contract have been completed without any omissions or defects in accordance with the plans and specifications set out in this contract.
5.4 Delivery of the Works to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.5 The Plumber may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
5.6 The failure of the Plumber to deliver shall not entitle either party to treat this contract as repudiated.
5.7 The Plumber shall not be liable for any loss or damage whatever due to failure by the Plumber to deliver the Works (or any of them) promptly or at all.
6. Omissions or Defects
6.1 The Client shall inspect the Works on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Plumber of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford the Plumber an opportunity to inspect the Works within a reasonable time following delivery if the Client believes the Works are defective in any way. If the Client shall fail to comply with these provisions, the Works shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage. For defective Works, which the Plumber has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Worksor repairing the Works, except where the Client has acquired Plumber as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Works, or repair of the Works, or replacement of the Works.
6.2 In addition to clause 5.3 practical completion also takes place when, in the event of a minor omission or defect thePlumber gives the Client a defects document that:
(a) lists the minor defects and minor omissions that both the Plumber and Client agree exist; and
(b) states by when the Plumber is to correct the listed defects and omissions; and
(c) lists the minor defects and omissions the Client claims exist, but that are not agreed by the Plumber to exist; and
(d) is signed by the Plumber.
6.3 The Plumber shall be entitled to make a claim for any completion payment so long as the Plumber has made all reasonable efforts to have the Client sign the defects document to acknowledge its contents.
7. Returns
7.1 Returns will only be accepted provided that:
(a) the Buyer has complied with the provisions of clause 6.1; and
(b) the Seller has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Buyer’s cost within seven (7) days of the delivery date; and
(d) the Seller will not be liable for Goods which have not been stored or used in a proper manner; and the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
7.2 The Seller may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.
8. Client’s Responsibility
8.1 It is the intention of the Plumber and agreed by the Client that:
(a) any building/construction sites will comply with all Queensland occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation; and
(b) the Plumber is not responsible for the removal of rubbish from or clean up of the building/construction site/s. This is the responsibility of the Client or the Client’s agent.
9. Risk
9.1 If the Plumber retains Ownership of the Materials nonetheless, all risk for the Materials passes to the Client on completion.
10. Surplus Materials
10.1 Unless otherwise stated elsewhere in this contract:
(a) only suitable new Materials will be used;
(b) demolished Materials remain the Client’s property; and
(c) Materials which the Plumber brings to the site which are surplus remain the property of the Plumber.
11. Title
11.1 It is the intention of the Plumber and agreed by the Client that Ownership of Materials shall not pass until:
(a) the Client has paid all amounts owing for the particular Materials; and
(b) the Client has met all other obligations due by the Client to the Plumber in respect of all contracts between the
11.2 Receipt by the Plumber of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Plumber’s Ownership or rights in respect of Materials shall continue.
11.3 It is further agreed that:
(a) where practicable the Materials shall be kept separate and identifiable until the Plumber shall have received payment and all other obligations of the Client are met; and
(b) until such time as Ownership of the Materials shall pass from the Plumber to the Client the Plumber may give notice in writing to the Client to return the Materials or any of them to the Plumber. Upon such notice the rights of the Client to obtain Ownership or any other interest in the Materials shall cease; and
(c) the Plumber shall have the right of stopping the Materials in transit whether or not delivery has been made; and
(d) if the Client fails to return the Materials to the Plumber then the Plumber or the Plumber’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Materials are situated and take possession of the Materials.
12. Warranty
12.1 Subject to the conditions of warranty set out in clause 12.2 the Plumber warrants that if any defect in any workmanship of the Plumber becomes apparent and is reported to the Plumber within twelve (12) months of the date of delivery (time being of the essence) then the Plumber will either (at the Plumber’s sole discretion) replace or remedy the workmanship.
12.2 The conditions applicable to the warranty given by clause 12.1 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 Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by the Plumber; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or 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 Plumber shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Plumber’s consent.
(c) in respect of all claims the Plumber shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
12.3 For Goods not manufactured by the Plumber, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Plumber 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.
12.4 To the extent required by statute the plumber warrants that:
(a) the Works shall be carried out in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract schedule;
(b) all Materials supplied be good and, having regard to the relevant criteria, suitable for the purpose for which they are used and that, unless otherwise stated in this contract, those Materials will be new;
(c) the Works will be carried out in accordance with all relevant laws and legal requirements (including, but not limited to, the Building Act 1975);
(d) the Works will be carried out in an appropriate and skilful way, with reasonable skill and care;
(e) the Works will be carried out in accordance with the plans and the specifications to this contract;
(f) if the Works consists of the construction of a detached dwelling or are intended to renovate, alter, extend, improve or repair a home to a stage suitable for occupation, that the detached dwelling or home will be suitable for occupation when the Works are finished; and
(g) if the contract states the particular purpose for which the Works are required, or the result which the Client wishes the Works to achieve (so as to show that the Client relies on the Plumber’s skill and judgment) then theWorks and any Materials will be reasonably fit for that purpose or will be of such a nature and quality that they might reasonably be expected to achieve that result.
12.5 Clause 11.1(b) does not apply if the Plumber is subject to the direction of the Client’s architect for the supply ofMaterials, or the Client is responsible for nominating the Materials and either:
(a) there are no reasonable grounds for not using the Materials; or
(b) there are reasonable grounds for not using the Materials and the Plumber advises the Client as such in writing and the Client still insists on the Materials being used.
12.6 For Material not manufactured by the Plumber the warranty shall be the current warranty provided by the manufacturer of the Material. The Plumber shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.
13. The Commonwealth Trade Practices Act 1974, Building Act 1975, and Fair Trading Acts
13.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974, Building Act 1975, or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
14. Intellectual Property
14.1 Where the Plumber has designed, drawn or written plans or a schedule of Works for the Client, then the copyright in those plans, schedules, designs and drawings shall remain vested in the Plumber, and shall only be used by theClient at the Plumber’s discretion.
14.2 The Client warrants that all designs or instructions to the Plumber will not cause the Plumber to infringe any patent, registered design or trademark in the execution of the Client’s order.
15. Default & Consequences of Default
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
15.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Plumber from and against all costs and disbursements incurred by the Plumber in pursuing the debt including legal costs on a solicitor and own client basis and the Plumber’s collection agency costs.
15.3 Without prejudice to any other remedies the Plumber may have, if at any time the Client is in breach of any obligation (including those relating to payment) the Plumber may suspend or terminate the supply of Works to theClient. The Plumber will not be liable to the Client for any loss or damage the Client suffers because the Plumberexercised its rights under this clause.
15.4 If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
15.5 Without prejudice to the Plumber’s other remedies at law the Plumber shall be entitled to cancel all or any part of any order of the Client which remains unperformed and all amounts owing to the Plumber shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Plumber becomes overdue, or in the Plumber’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or 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 Client or any asset of the Client.
16. Cancellation
16.1 The Client may cancel this contract if the Client gives the Plumber a signed notice stating that the Client is ending the contract under this clause and giving the details of why the contract is being ended.
16.2 If a contract is ended under this clause, the Plumber is entitled to a reasonable Price for the Work carried out under the contract to the date the contract is ended.
17. Privacy Act 1988
17.1 The Client agrees for the Plumber to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by the Plumber.
17.2 The Client agrees that the Plumber may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of the Client.
17.3 The Client consents to the Plumber being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by the Plumber for the following purposes and for other purposes as shall be agreed between the Client and Plumber or required by law from time to time:
(a) provision of Works; and/or
(b) marketing of Works by the Plumber, its agents or distributors in relation to the Works; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Works; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Works.
17.5 The Plumber may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
18. Security And Charge
18.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) where the Buyer and/or the Guarantor (if any) is the Client of land, realty or any other asset capable of being charged, both the Buyer 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 Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’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 met.
(b) should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Buyer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 17.1.
19. Building and Construction Industry Payments Act 2004
19.1 At the Plumber’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 2004 may apply.
19.2 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 2004 of Queensland, except to the extent permitted by the Act where applicable.
20. General
20.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 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.
20.3 The Plumber shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Plumber of these terms and conditions.
20.4 In the event of any breach of this contract by the Plumber the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Plumber exceed the Price of the Works.
20.5 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Plumber.
20.6 The Plumber may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.7 The Plumber 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 Plumber notifies the Client of such change.
20.8 Neither party shall be liable for any default due to any act of God, war, terrorism, fire, flood, drought, storm or other event beyond the reasonable control of either party.
20.9 The failure by the Plumber to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Plumber’s right to subsequently enforce that provision.
1. Definitions
1.1 “Plumber” shall mean Fintin Pty Ltd T/A Shailer Park Plumbing its successors and assigns or any person acting on behalf of and with the authority of Fintin Pty Ltd T/A Shailer Park Plumbing.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the written authority of the Client.
1.3 “Work” shall mean all Works (including the supply of Materials) undertaken by the Plumber and described in this
contract and includes any advice or recommendations.
1.4 “Materials” shall means Materials required to complete the Works.
1.5 “Price” shall mean the Price of the Works as agreed between the Plumber and the Client.
2. Acceptance
2.1 Any instructions received by the Plumber from the Client for the supply of Works and/or the Client’s acceptance of Works undertaken by the Plumber shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client, the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the Plumber.
2.4 None of the Plumber’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Plumber in writing nor is the Plumber bound by any such unauthorised statements.
2.5 The Client shall give the Plumber not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Plumber as a result of the Client’s failure to comply with this clause.
3. Price And Payment
3.1 At the Plumber’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Plumber to the Client in respect of Works supplied; or
(b) the Plumber’s quoted Price (subject to clause 4) which shall be binding upon the Plumber provided that the
Client shall accept the Plumber’s quotation in writing within thirty (30) days.
3.2 At the Plumber’s sole discretion a deposit may be required.
3.3 At the Plumber’s sole discretion:
(a) payment shall be due on delivery of the Works; or
(b) payment shall be due before delivery of the Works; or
(c) payment for approved Clients shall be made by instalments in accordance with the Plumber’s payment schedule.
3.4 Time for payment for the Works shall be of the essence and will be stated on the invoice. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.5 The Plumber 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 Materialsdelivered to the site but not installed.
3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Plumber.
3.7 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in the building contract schedule.
4. Variations
4.1 In the event that the Client requests a variation, the Plumber will give the Client a written variation document detailing the Work, the Price, the estimated time to undertake the variation, and the likely delay, if any and require written acceptance of the variation before commencing Work on the variation.
4.2 In the event that the Plumber requests a variation, the Plumber will state the reason for the variation in writing and require written acceptance by the Client of the variation before commencing Work on the variation.
4.3 In the event of unforeseeable problems with the site which are only revealed when undertaking the Works thePlumber may carry out any Work needed to fix any such problem if the Plumber considers it necessary for satisfactory and safe completion of the Works. Any additional Work necessary due to an unforeseen problems is to be treated as a variation. However if a Price is not agreed upon then the Client will be charged at the Plumber’s actual cost plus twenty (20%) percent for the Works.
5. Delivery Of Works
5.1 Subject to clause 5.2 it is the Plumber’s responsibility to ensure that the Works start as soon as it is reasonably possible.
5.2 The Works commencement date will be put back and the building period extended by whatever time is reasonable in the event that the Plumber claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Plumber’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for installation; or (c) notify the Plumber that the site is ready.
5.3 The Works shall be deemed to be practically completed when subject to clauses 6.1 & 6.2 the Works carried out under this contract have been completed without any omissions or defects in accordance with the plans and specifications set out in this contract.
5.4 Delivery of the Works to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.5 The Plumber may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
5.6 The failure of the Plumber to deliver shall not entitle either party to treat this contract as repudiated.
5.7 The Plumber shall not be liable for any loss or damage whatever due to failure by the Plumber to deliver the Works (or any of them) promptly or at all.
6. Omissions or Defects
6.1 The Client shall inspect the Works on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Plumber of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford the Plumber an opportunity to inspect the Works within a reasonable time following delivery if the Client believes the Works are defective in any way. If the Client shall fail to comply with these provisions, the Works shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage. For defective Works, which the Plumber has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Worksor repairing the Works, except where the Client has acquired Plumber as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Works, or repair of the Works, or replacement of the Works.
6.2 In addition to clause 5.3 practical completion also takes place when, in the event of a minor omission or defect thePlumber gives the Client a defects document that:
(a) lists the minor defects and minor omissions that both the Plumber and Client agree exist; and
(b) states by when the Plumber is to correct the listed defects and omissions; and
(c) lists the minor defects and omissions the Client claims exist, but that are not agreed by the Plumber to exist; and
(d) is signed by the Plumber.
6.3 The Plumber shall be entitled to make a claim for any completion payment so long as the Plumber has made all reasonable efforts to have the Client sign the defects document to acknowledge its contents.
7. Returns
7.1 Returns will only be accepted provided that:
(a) the Buyer has complied with the provisions of clause 6.1; and
(b) the Seller has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Buyer’s cost within seven (7) days of the delivery date; and
(d) the Seller will not be liable for Goods which have not been stored or used in a proper manner; and the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
7.2 The Seller may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.
8. Client’s Responsibility
8.1 It is the intention of the Plumber and agreed by the Client that:
(a) any building/construction sites will comply with all Queensland occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation; and
(b) the Plumber is not responsible for the removal of rubbish from or clean up of the building/construction site/s. This is the responsibility of the Client or the Client’s agent.
9. Risk
9.1 If the Plumber retains Ownership of the Materials nonetheless, all risk for the Materials passes to the Client on completion.
10. Surplus Materials
10.1 Unless otherwise stated elsewhere in this contract:
(a) only suitable new Materials will be used;
(b) demolished Materials remain the Client’s property; and
(c) Materials which the Plumber brings to the site which are surplus remain the property of the Plumber.
11. Title
11.1 It is the intention of the Plumber and agreed by the Client that Ownership of Materials shall not pass until:
(a) the Client has paid all amounts owing for the particular Materials; and
(b) the Client has met all other obligations due by the Client to the Plumber in respect of all contracts between the
11.2 Receipt by the Plumber of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Plumber’s Ownership or rights in respect of Materials shall continue.
11.3 It is further agreed that:
(a) where practicable the Materials shall be kept separate and identifiable until the Plumber shall have received payment and all other obligations of the Client are met; and
(b) until such time as Ownership of the Materials shall pass from the Plumber to the Client the Plumber may give notice in writing to the Client to return the Materials or any of them to the Plumber. Upon such notice the rights of the Client to obtain Ownership or any other interest in the Materials shall cease; and
(c) the Plumber shall have the right of stopping the Materials in transit whether or not delivery has been made; and
(d) if the Client fails to return the Materials to the Plumber then the Plumber or the Plumber’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Materials are situated and take possession of the Materials.
12. Warranty
12.1 Subject to the conditions of warranty set out in clause 12.2 the Plumber warrants that if any defect in any workmanship of the Plumber becomes apparent and is reported to the Plumber within twelve (12) months of the date of delivery (time being of the essence) then the Plumber will either (at the Plumber’s sole discretion) replace or remedy the workmanship.
12.2 The conditions applicable to the warranty given by clause 12.1 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 Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by the Plumber; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or 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 Plumber shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Plumber’s consent.
(c) in respect of all claims the Plumber shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
12.3 For Goods not manufactured by the Plumber, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Plumber 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.
12.4 To the extent required by statute the plumber warrants that:
(a) the Works shall be carried out in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract schedule;
(b) all Materials supplied be good and, having regard to the relevant criteria, suitable for the purpose for which they are used and that, unless otherwise stated in this contract, those Materials will be new;
(c) the Works will be carried out in accordance with all relevant laws and legal requirements (including, but not limited to, the Building Act 1975);
(d) the Works will be carried out in an appropriate and skilful way, with reasonable skill and care;
(e) the Works will be carried out in accordance with the plans and the specifications to this contract;
(f) if the Works consists of the construction of a detached dwelling or are intended to renovate, alter, extend, improve or repair a home to a stage suitable for occupation, that the detached dwelling or home will be suitable for occupation when the Works are finished; and
(g) if the contract states the particular purpose for which the Works are required, or the result which the Client wishes the Works to achieve (so as to show that the Client relies on the Plumber’s skill and judgment) then theWorks and any Materials will be reasonably fit for that purpose or will be of such a nature and quality that they might reasonably be expected to achieve that result.
12.5 Clause 11.1(b) does not apply if the Plumber is subject to the direction of the Client’s architect for the supply ofMaterials, or the Client is responsible for nominating the Materials and either:
(a) there are no reasonable grounds for not using the Materials; or
(b) there are reasonable grounds for not using the Materials and the Plumber advises the Client as such in writing and the Client still insists on the Materials being used.
12.6 For Material not manufactured by the Plumber the warranty shall be the current warranty provided by the manufacturer of the Material. The Plumber shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.
13. The Commonwealth Trade Practices Act 1974, Building Act 1975, and Fair Trading Acts
13.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974, Building Act 1975, or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
14. Intellectual Property
14.1 Where the Plumber has designed, drawn or written plans or a schedule of Works for the Client, then the copyright in those plans, schedules, designs and drawings shall remain vested in the Plumber, and shall only be used by theClient at the Plumber’s discretion.
14.2 The Client warrants that all designs or instructions to the Plumber will not cause the Plumber to infringe any patent, registered design or trademark in the execution of the Client’s order.
15. Default & Consequences of Default
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
15.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Plumber from and against all costs and disbursements incurred by the Plumber in pursuing the debt including legal costs on a solicitor and own client basis and the Plumber’s collection agency costs.
15.3 Without prejudice to any other remedies the Plumber may have, if at any time the Client is in breach of any obligation (including those relating to payment) the Plumber may suspend or terminate the supply of Works to theClient. The Plumber will not be liable to the Client for any loss or damage the Client suffers because the Plumberexercised its rights under this clause.
15.4 If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
15.5 Without prejudice to the Plumber’s other remedies at law the Plumber shall be entitled to cancel all or any part of any order of the Client which remains unperformed and all amounts owing to the Plumber shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Plumber becomes overdue, or in the Plumber’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or 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 Client or any asset of the Client.
16. Cancellation
16.1 The Client may cancel this contract if the Client gives the Plumber a signed notice stating that the Client is ending the contract under this clause and giving the details of why the contract is being ended.
16.2 If a contract is ended under this clause, the Plumber is entitled to a reasonable Price for the Work carried out under the contract to the date the contract is ended.
17. Privacy Act 1988
17.1 The Client agrees for the Plumber to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by the Plumber.
17.2 The Client agrees that the Plumber may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of the Client.
17.3 The Client consents to the Plumber being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by the Plumber for the following purposes and for other purposes as shall be agreed between the Client and Plumber or required by law from time to time:
(a) provision of Works; and/or
(b) marketing of Works by the Plumber, its agents or distributors in relation to the Works; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Works; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Works.
17.5 The Plumber may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
18. Security And Charge
18.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) where the Buyer and/or the Guarantor (if any) is the Client of land, realty or any other asset capable of being charged, both the Buyer 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 Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’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 met.
(b) should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Buyer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 17.1.
19. Building and Construction Industry Payments Act 2004
19.1 At the Plumber’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 2004 may apply.
19.2 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 2004 of Queensland, except to the extent permitted by the Act where applicable.
20. General
20.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 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.
20.3 The Plumber shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Plumber of these terms and conditions.
20.4 In the event of any breach of this contract by the Plumber the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Plumber exceed the Price of the Works.
20.5 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Plumber.
20.6 The Plumber may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.7 The Plumber 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 Plumber notifies the Client of such change.
20.8 Neither party shall be liable for any default due to any act of God, war, terrorism, fire, flood, drought, storm or other event beyond the reasonable control of either party.
20.9 The failure by the Plumber to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Plumber’s right to subsequently enforce that provision.