“Seller” means Test X Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Test X Pty Ltd.
“Client” means the person/s acquiring the Services as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
“Services” means all goods and/or services provided by the Seller to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“Price” means the Price payable for the Services as agreed between the Seller and the Client in accordance with clause 4
Acceptance
The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for the Services, or accepts Delivery.
These terms and conditions may only be amended with the Seller’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Seller.
All literature, specifications, dimensions and weights submitted with the Seller’s quotation are approximate only; the data and descriptions contained in catalogues and other advertising material while being as accurate as possible may not necessarily be identical with Services provided by the Seller, and the Seller reserves the right to provide Services that may have minor modifications in specifications as the Seller sees fit.
Change in Control
The Client shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Seller as a result of the Client’s failure to comply with this clause.
Price and Payment
At the Seller’s sole discretion the Price shall be either:
as indicated on any invoice provided by the Seller to the Client; or
the Seller’s quoted price (subject to clause 3) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
Unless specified otherwise by the Seller in writing, no allowance has been made in the Price for flushing, cleaning, swabbing, jet rodding, sponging, drying or any other pipe treatment, or bunting, temporary fencing, sit fence, hay bales, etc.
The Seller reserves the right to change the Price:
if a variation to the Services originally scheduled (including any Goods, applicable plans or specifications, or to make allowance for any items outlined in clause 2) is requested or required; or
where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, hard rock barriers below the surface or iron reinforcing rods in concrete, obscured site defects, safety considerations, a delay in the supply of materials to be provided to the Seller by the Client or a third party, prerequisite work by any third party not being completed, or pipeline failure, etc.) which are only discovered on Delivery; or
in the event of increases to the Seller in the cost of labour or materials, which are beyond the Seller’s control.
At the Seller’s sole discretion, a non-refundable deposit may be required.
Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by the Seller, which may be:
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Client by the Seller.
Payment may be made by cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and the Seller.
Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Seller an amount equal to any GST the Seller must pay for any provision of Services by the Seller under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Receipt by the Seller 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 Seller’s rights and ownership in relation to the Services, and this agreement, shall continue.
No allowance has been made in the Price for the deduction of security payments or retentions. In the event that such are made, the Seller reserves the right to treat all retentions as placing the Client’s account into default.
Delivery
Delivery of the Services (“Delivery”) is taken to occur at the time that:
the Client or the Client’s nominated carrier takes possession of the Goods at the Seller’s address; or
the Seller (or the Seller’s nominated carrier) delivers the Goods to, or provides the Services at, the Client’s nominated address, even if the Client is not present at the address.
At the Seller’s sole discretion, the cost of Delivery is included in the Price.
The Seller may deliver the Services in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Any time specified by the Seller for Delivery is an estimate only and the Seller will not be liable for any loss or damage incurred by the Client as a result of any delay. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that the Seller is unable to provide the Services as agreed solely due to any action or inaction of the Client then the Seller shall be entitled to charge a reasonable fee for re-providing the Services at a later time and date.
The Client shall ensure that the Seller has clear and free access to the nominated address at all times to enable them to provide the Services. The Seller shall not be liable for any loss or damage to the nominated address (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas), unless due to the negligence of the Seller.
Risk
All risk for the Goods shall pass to the Client as soon as they are delivered to the Client, and shall remain with the Client until such time as either Title to the Goods passes to the Client as per clause 1, or the Seller repossesses the Goods in accordance with clause 10.2(c). The Client must insure all Goods on or before Delivery.
The Seller reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Goods as a result of the Client’s failure to insure in accordance with clause 1.
Any advice, recommendation, information, assistance or service provided by the Seller in relation to Services provided is given in good faith, is based on the Seller’s own knowledge and experience, shall be accepted without liability on the part of the Seller, and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services.
Underground Locations
Prior to the Seller providing the Services the Client must advise the Seller of the precise location of all underground services on the site and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
Whilst the Seller will take all care to avoid damage to any underground services the Client agrees to indemnify the Seller in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 1.
Accuracy of Customer’s Plans and Measurements
The Seller shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, the Seller accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
In the event the Client gives information to the Seller relating to measurements and quantities required to provide the Services, it is the Client’s responsibility to verify the accuracy thereof before the Client or the Seller places an order based on these measurements and quantities. The Seller accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
Compliance with Laws
The Client and the Seller shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
Title
The Seller and the Client agree that ownership of the Goods shall not pass until:
the Client has paid the Seller all amounts owing for the Goods; and
the Client has met all other obligations due by the Client to the Seller in respect of all contracts between the Seller and the Client.
It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 1:
the Client is only a bailee of the Goods and must return the Goods to the Seller immediately upon request by the Seller;
the Client holds the benefit of the Client’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
the Client irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods.
Personal Property Securities Act 2009 (“PPSA”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to the Seller for Services – that have previously been provided and that will be provided in the future by the Seller to the Client.
The Client undertakes to:
promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to;
register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
register any other document required to be registered by the PPSA; or
correct a defect in a statement referred to in clause 3(a)(i) or 11.3(a)(ii);
indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Seller;
immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
The Seller and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by the Seller, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
The Client must unconditionally ratify any actions taken by the Seller under clauses 3 to 11.5.
Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
In consideration of the Seller agreeing to provide Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Client indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
The Client irrevocably appoints the Seller and each director of the Seller as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
The Client must inspect the Services on Delivery and must within fourteen (14) days of such time notify the Seller in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Seller to inspect/review the Services.
Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Seller makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Services. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Client is a consumer within the meaning of the CCA, the Seller’s liability is limited to the extent permitted by section 64A of Schedule 2.
If the Seller is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then the Seller may refund any money the Client has paid for the Service but only to the extent that such refund shall take into account the value of Services which have been provided to the Client which were not defective.
If the Client is not a consumer within the meaning of the CCA, the Seller’s liability for any defect or damage in the Services is:
limited to the value of any express warranty or warranty card provided to the Client by the Seller at the Seller’s sole discretion;
otherwise negated absolutely.
Subject to this clause 13, returns will only be accepted provided that:
the Client has complied with the provisions of clause 1; and
the Seller has agreed that the Goods are defective; and
the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
the Goods are returned in as close a condition to that in which they were delivered as is possible.
Notwithstanding clauses 1 to 13.8 but subject to the CCA, the Seller shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
the Client failing to properly maintain or store any Goods;
the Client using the Goods for any purpose other than that for which they were designed;
the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
the Client failing to follow any instructions or guidelines provided by the Seller;
fair wear and tear, any accident, or act of God.
The Seller may in its absolute discretion accept non-defective Goods for return in which case the Seller may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
Notwithstanding anything contained in this clause if the Seller is required by a law to accept a return then the Seller will only accept a return on the conditions imposed by that law.
Intellectual Property
Where the Seller has designed, drawn, written plans or a schedule of Services, or created any Goods for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and Goods shall remain vested in the Seller, and shall only be used by the Client at the Seller’s discretion.
The Client warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
The Client agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or Goods which the Seller has created for, or digital media of Services provided to, the Client.
Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes the Seller any money the Client shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s contract default fee, and bank dishonour fees).
Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the provision of Services to the Client. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller has exercised its rights under this clause.
Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to make a payment when it falls due;
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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Cancellation
The Seller may cancel any contract to which these terms and conditions apply or cancel Delivery at any time before the Services are delivered by giving written notice to the Client. On giving such notice the Seller shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to the Seller for Services already provided. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels Delivery within five (5) days of the agreed Delivery date, the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Goods made to the Client’s specifications will definitely not be accepted once production has commenced, or an order has been placed.
Privacy Act 1988
The Client agrees for the Seller to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Seller.
The Client agrees that the Seller may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
to assess an application by the Client; and/or
to notify other credit providers of a default by the Client; and/or
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
to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.
The Client agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other agreed purposes or required by):
the provision of Services; and/or
analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
enabling the collection of amounts outstanding in relation to the Services.
The Seller may give information about the Client to a CRB for the following purposes:
to obtain a consumer credit report;
allow the CRB to create or maintain a credit information file about the Client including credit history.
The information given to the CRB may include:
personal information as outlined in 1 above;
name of the credit provider and that the Seller is a current credit provider to the Client;
whether the credit provider is a licensee;
type of consumer credit;
details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Seller has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
information that, in the opinion of the Seller, the Client has committed a serious credit infringement;
advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Client shall have the right to request (by e-mail) from the Seller:
a copy of the information about the Client retained by the Seller and the right to request that the Seller correct any incorrect information; and
that the Seller does not disclose any personal information about the Client for the purpose of direct marketing.
The Seller will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
The Client can make a privacy complaint by contacting the Seller via e-mail. The Seller will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au.
Dispute Resolution
If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
Other Applicable Legislation
At the Seller’s sole discretion, if there are any disputes or claims for unpaid Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 (New South Wales) and the Building and Construction Industry Payments Act 2004 (Queensland) may apply.
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 1 (each as applicable), except to the extent permitted by the Act where applicable.
General
The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision. 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.
These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which the Seller has its principal place of business, and are subject to the jurisdiction of the Southport Court in that state.
Subject to clause 13, the Seller shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price).
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 Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
The Seller may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
The Client agrees that the Seller may amend these terms and conditions at any time. If the Seller makes a change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Seller to provide Services to the Client.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
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