STANDARD CONTRACT TERMS AND CONDITIONS
Agreement means the terms and conditions contained herein this agreement, the Application Form, the Quote and Authority to Begin Works Form;
Application Form means the application form provided by the Supplier;
Authority to Begin Works Form means the form provided by the Supplier to the Client from time to time which details the work to be completed and the Purchase Price;
Authorised Representative means the person nominated on the Application Form and any other person as nominated by the Client from time to time;
Client means the person listed on the Application Form, Quote, or Authority to Begin Works Form;
Goods means any and all goods supplied by the Supplier to the Client from time to time pursuant to the Authority to Begin Works Form, Quote, Tax Invoice or any variation thereof;
Option Form means the form outlining the options available to the Client and details which options the Client has agreed to.
Purchase Price means the costs of the Services as at the date of this Agreement and stated on the Quote as varied from timeto time by the Supplier;
Supplier means PlumbAssist Pty Ltd ACN 149 398 176;
Temporary Hot Water Solution means the temporary hot water system installed by the supplier for the client;
Quote means the Supplier’s quote provided to the Client for the Services and/or Goods related to the work/supply;
Services means any goods or services supplied by the Supplier to the Client from time to time that relate to any work or service contemplated by this Agreement and the Quote;
Substantial Change means any variation to Quote that may in any way effect the scope of Services and/or Goods to be provided as determined by the Supplier; and
Tax Invoice means the tax invoice supplied by the Supplier to the Client.
2. Acceptance of Terms and Conditions
2.1 These terms and conditions and the Quote are deemed to be accepted by the Client upon the following events occurring:
a) the Application Form, Authority to Begin Works Form, the Option Form or the Temporary Hot Water Solution is signed by the Client or their Authorised Representative ; or
b) the Client instructs the Supplier to supply the Services and/or Goods.
3.1 The Client acknowledges that the Supplier or any representative thereof has not made any representation or agreement whereby the Client has relied upon.
3.2 If any representation or agreements have been made by the Supplier or any representative thereof, the Client agrees that they have not relied upon them and this Agreement forms the entire agreement between the parties.
4.1 The price payable for the Services and/or Goods is the Purchase Price.
4.2 Prices are subject to change from time to time by the Supplier with no notice being required to be given to the Client.
4.3 Prices are current as at the date that the Application Form or Authority to Begin Works Form is signed by the Client.
4.4 The Purchase Price remains valid for a period of 30 days from the date that it is provided to the Client.
5. Terms of Payment
5.1 All payments to the Supplier:
a) must be made by either direct deposit into the Supplier’s nominated bank account or via credit card;
b) must be made within 7 days of the date as noted on the Tax Invoice or as otherwise directed by the Supplier; and
c) must be made in the manner as stated on the Tax Invoice..
5.2 The Supplier reserves the right at any time to withhold or cancel the supply of the Services and/or Goods any time, without notice, if the Client fails to comply with the terms of this Agreement.
5.3 The Supplier may withhold access to and delivery of any Goods or performance of any Services until clear payment is received.
6. Delivery of Services & Goods and Variation
6.1 The Client must provide the Authority to Begin Works Form, the Option Form or the Temporary Hot Water Solution to the Supplier prior to any Services being undertaken or Goods being supplied.
6.2 The Services and/or Goods that the Supplier is to supply are limited to the Services and/or Goods as noted on the Quote, Authority to Begin Works Form, Option Form or Temporary Hot Water Solution.
6.3 The Client acknowledges that they have considered the options contained in the Option Form and that the Supplier has explained all options to the Client.
6.4 The Client acknowledges that if an option is declined by the Client, that any future request to complete any of the declined options, a further Price is payable to the Supplier.
6.5 The Client acknowledges that they understand the hot water system provided under the Temporary Hot Water Solution is a temporary solution and that the Client is not liable for any damage should the temporary solution fail for any reason.
6.6 The Client acknowledges that they understand the hot water system provided under the Temporary Hot Water Solution is used by the Client and their own risk and that the connection is not in accordance with any standard.
6.7 At the Suppliers’ sole discretion, the costs of delivery of any Goods are in addition to the Purchase Price or for the Client’s account.
6.8 The delivery times made known to the Client are estimates only and the Supplier will not be liable for later delivery or non-delivery of the Goods or Services.
6.9 The Client must make all arrangements necessary to take delivery of the Goods or Services whenever they are tendered for delivery.
6.10 Client must ensure that there is clear and adequate access to the area where the Goods are to be delivered and Services supplied. The Supplier will not be liable for any loss or damage suffered by the Client or its property as a result of inadequate access.
6.11 In the event that the Client is unable to take delivery of the Goods or Services as arranged then the Supplier shall be entitled to charge a reasonable fee for re-delivery.
6.12 The Supplier may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in this Agreement.
6.13 The Client must examine the Goods delivered at the time of delivery.
6.14 The Supplier is not liable to the Client for Goods that have been examined and accepted by the Client or for shortages of Goods.
6.15 The Client agrees that once the Goods have been delivered then the Client is deemed to have examined the Goods and is satisfied.
6.16 Despite any negligence on the part of the Supplier, or its agents, the Supplier will not be liable for any loss, damage, delay, cost or expense occasioned to the Client or any third parties arising from late or non-delivery or late installation of the Goods or Services caused by the delivery carrier, or its agents.
6.17 The Services and/or Goods that the Supplier will provide to the Client are limited to those Services and/or Goods as contained in the Quote and any additional Services and/or Goods or variations thereof that may be required may incur an additional fee which shall be determined by the Supplier upon assessment.
6.18 The Client must notify the Supplier of any Substantial Change and acknowledges that any Substantial Change may affect the scope of Services and/or Goods to be provided and may incur an additional fee.
6.19 The Supplier will attempt, in all possible circumstances, to limit the Supplier’s downtime in the performance of Services and supply of the Goods.
6.20 The Supplier will, on becoming aware of any actual or potential delay in providing any Services and/or Goods, provide the Client with notice as to the nature and cause of the delay and provide an amended timeframe for the Services and/or Goods to be supplied.
6.21 The Supplier is not liable to the Client for any failure to perform or supply the Services and/or Goods, or delay for performing of supplying the Services and/or Goods.
6.22 The Client further agrees to indemnify the Supplier for any additional cost incurred by the Supplier in the event that the Services and/or Goods to be provided fall outside the scope of work to be performed or supplied pursuant to the Quote.
7. Defective Goods
7.1 The Client will, within 48 hours of delivery of the Goods, notify the Supplier, in writing, of any defects.
7.2 Upon it notifying the Supplier of such defect, the Client, within a reasonable time, will afford the Supplier an opportunity to inquire in regards to the defect.
7.3 Subsequent to the Supplier’s inspection of the alleged defective Goods/Services, the Supplier will notify the Client in writing whether the Client is entitled to reject the Goods as delivered. This does not constitute cancellation of the Agreement.
7.4 In the event that the Client fails to comply with this clause, the Goods shall be deemed free from any defect or damage.
7.5 In the event that the Supplier agrees, in writing, that the Client is entitled to reject the Goods provided, the Supplier’s liability is limited to either replacing or rectifying the Goods or Services provided that the Client has complied this clause.
7.6 For the purposes of clarity the supplier:
a) will not accept the return of Goods by the Client and the Client acknowledges that the Supplier is not required to accept the return of Goods; and
b) has the sole discretion to accept return of defective Goods
8. Warranties and Indemnities
8.1 The Client warrants:
a) that all information provided to the Supplier is accurate and acknowledges that the Supplier has placed reliance on the information provided and is not required to make any enquires to determine the validity of the information provided;
8.2 The Client authorises the Supplier to:
a) the extent permitted by law, to collect, retain and use any information about the Client; and
b) disclose any information obtained by any person for the purposes of delivering the Services and/or Goods.
8.3 The Client indemnifies the Supplier against:
a) any penalty or liability incurred by the Supplier for any breach by the Client of this Agreement; and
b) all actions, claims, demands, losses, damages, costs and expenses which the Supplier may sustain or incur or for which the Supplier may become liable whether during or after the term of this Agreement, by reason of any act or omission or negligence by the Supplier and its respective employees or any other authorised person.
8.4 The Supplier is not liable for any defect or damage caused by the Supplier providing or supplying the Services and/or Goods.
8.5 The Supplier is not liable to compensate the Client for any losses incurred for failure or delay if such is due to fire, cyclone, earthquake, flood, tsunami, inclement weather, strike, labour dispute, war, government order, riot, revolution, pandemic, civil commotion or any other cause beyond its reasonable control
9.1 All risk shall pass to the Client upon receipt of the Goods by the delivery carrier or upon receipt of the Goods by the Client, whichever is earlier.
9.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Supplier is entitled to receive all insurance proceeds payable for the Goods.
9.3 The production of these terms and conditions by the Supplier is sufficient evidence of the Suppliers’ rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
10.1 Ownership of the Goods does not pass from the Supplier to the Client until:
a) full and complete payment of the Purchase Price has been received by the Supplier; and
b) any other obligations under this Agreement have been fulfilled by the Client.
10.2 Receipt by the Supplier 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 Supplier’s’ ownership or rights in respect of the Goods shall continue.
10.3 It is further agreed that:
a) if the Client fails to return the Goods to the Supplier then the Supplier or the Suppliers’ 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 Goods are situated and take possession of the Goods;
b) the Client is only a bailee of the Goods and until such time as the Supplier has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to the Supplier for the Goods, on trust for the Supplier;
c) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest, including but not limited to a security interest, in the Goods while they remain the property of the Supplier;
d) the Supplier can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
e) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the Supplier will be the owner of the end products.
11. Site Issues
11.1 Blocked drains: Client acknowledges that the presence of plant root growth and blockages generally is an indication of damaged pipes that cannot be properly fixed by simply removing the root growth or blockage. If Client does not instruct Supplier to carry out the work to repair or replace damages pipes or drains, then the Supplier gives no warranty that the same or similar problems will not recur. If any of Supplier’s equipment becomes lodged or is damaged while in Client’s pipes or drains, Client agrees to pay the costs of removal of the equipment including any necessary excavation and restoration work.
11.2 Rock and filled ground: unless otherwise agreed the supply of Services does not include the excavation, relocation, repair or removal of any rocks, surfaces or other obstructions which are necessary in order for Supplier to supply the Goods or Services.
11.3 Restoration: Supplier will take care when supplying the Goods or Services to minimise any disturbance or damage to surrounding areas including walls, ceilings, floors, garden beds and paint. Any repair or restoration required after the supply of the Goods or Services is not included in Supplier’s quotation and must be carried out at Client’s cost.
12.1 The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warrantiesmay be implied in these Terms and Conditions and there are rights and remedies conferred on the Client in relation to the provision of the Services and/or Goods which cannot be excluded, restricted or modified by the Agreement (“Non-excludable Rights”).
12.2 The Supplier disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Client, 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 Supplier for a breach of a Non-Excludable Right is limited, at the Supplier’s option, to the supplying of the Services and/or Goods again or payment of the cost of having the Services and/or Goods supplied again.
12.3 The Supplier’s liability for any claim in relation to this Agreement or the supply or performance of the Services and/or Goods (whether under statue, contract, tort, negligence or otherwise) will be limited to the amount of the fee paid by the Client to the Supplier.
12.4 The Supplier is not be liable to the Client for any claim of any kind arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any direct or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) of any remote abnormal of unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties, as a result of or in connection with the provision of the supply or performance of the Services and/or Goods.
12.5 The Client agrees that they waive any claim, future or present, that they may have or may arise against the Supplier that is in any way connected directly or indirectly with the supply of the Services and/or Goods.
12.6 Notwithstanding any other provision of this Agreement, the Supplier 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 Client 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 Supplier’s failure to complete or delay in supply of the Services and/or Goods.
12.7 The Client further indemnifies the Supplier from any costs or charges that in anyway either directly or indirectly relate to the supply of the Services and/or Goods and further for any services or goods that the Supplier performs or supplies.
13.1 If the Client:
a) makes default in any payment;
b) breaches any terms contained herein this Agreement;
c) commits any act of bankruptcy or goes into bankruptcy;
d) has a judgment awarded against it by any court or tribunal;
13.2 then Supplier may terminate this Agreement and all Tax Invoices and other monies owing to the Supplier become immediately due and payable.
13.3 In the event of default under this clause, the Supplier may, at its discretion:
a) elect to apply an interest charge against the Client’s account at the rate of 5% of the outstanding monies per month or part thereof;
b) charge an administration fee each month, or portion thereof, that an amount owing by the Client is overdue;
c) commence proceedings against the Client;
d) recover against the Client all moneys that are owed to the Supplier including incidental costs that are incurred in relation to the Client’s default;
e) list the default in payment with the appropriate credit reporting agency; and
f) perform any other action that the Supplier deems appropriate to enforce this Agreement and recovery monies owed.
14.1 If the Client wishes to cancel the supply of Services and/or Goods then they must give 10 business days notice in writing to the Supplier notifying them of termination.
14.2 In the event that the Client wishes to terminate the agreement between the parties the Client must make payment for the remaining monetary obligation owed under the agreement to the Supplier in addition to payment for the Services and/or Goods already performed and/or supplied or part thereof.
14.3 The Supplier may terminate this Agreement at any time if the Client breaches the terms and conditions contained herein without notice to the Client..
15.1 Nothing in this Agreement shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricted or modifying any condition, warranty, guarantee, right or remedy implied by the law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
15.2 These terms and conditions supersede all terms and conditions previously issued by the Supplier.
15.3 The parties acknowledge that this Agreement is intended as a contract for the supply of Services and/or Goods and not any other relationship and, in particular, not the relationship of employer and employee, principal and agent or the relationship of partnership.
15.4 This Agreement is personal to the Client and must not be assigned without the prior written consent of the Supplier. Such consent must be reasonably given by the Supplier and must not be unreasonable withheld.
15.5 A communication required by this Agreement, by a party to another, must be in writing and may be given to them by being:
a) Delivered personally;
b) Posted to their address specified in this agreement, or as later notified by them, in which case it will be treated as having been received on the second business day after posting;
c) Faxed to the facsimile number of the party with acknowledgment of receipt received electronically by the sender, when it will be treated as received on the day of sending; or
d) Sent by email to their email address, when it will be treated as received on that day.
15.6 This Agreement will be governed by the laws of Victoria, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria.
15.7 This Agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the Agreement will be the date on which it is executed by the last party.