Terms & Conditions of Trade

1. Definitions
1.1. “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular Customer and website, and can be accessed either by the web server or the Customer’s computer. If the Customer does not wish to allow Cookies to operate in the background when using the Contractor’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.

1.2. 'Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, Customer information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

1.3. “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.4. “Contractor” means All Plant Equipment Sales Pty Ltd T/A A-Team Earthmoving QLD its successors and assigns or any person acting on behalf of and with the authority of All Plant Equipment Sales Pty Ltd T/A A-Team Earthmoving QLD.

1.5. “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Contractor to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
a. if there is more than one Customer, is a reference to each Customer jointly and severally; and
b. if the Customer is a partnership, it shall bind each partner jointly and severally; and
c. if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
d. includes the Customer’s executors, administrators, successors and permitted assigns.

1.6. “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

1.7. “Intended Use” means a building product and the use thereof, for which the building product is intended to be, or is reasonably likely to be, associated with a building.

1.8. “Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:
a. the product is not, or will not be, safe; or
b. does not, or will not, comply with the relevant regulatory provisions; or
c. the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.

1.9. “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between the Contractor and the Customer in accordance with clause 6 below.

1.10 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by the Contractor to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.11. “Worksite” means the address nominated by the Customer to which the Materials are to be supplied by the Contractor.

2. Acceptance
2.1. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.

2.2. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

2.3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4. The Customer acknowledges that the supply of Works on credit shall not take effect until the Customer has completed a credit application with the Contractor and it has been approved with a credit limit established for the account.

2.5. In the event that the supply of Works requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Contractor reserves the right to refuse delivery.

2.6. Any advice, recommendation, information, assistance or service provided by the Contractor in relation to Materials or Works (including the laying of concrete slabs, foundations or similar Works) supplied is given in good faith to the Customer, or the Customer’s agent, and is based on the Contractor’ own knowledge and experience and shall be accepted without liability on the part of the Contractor. Where such advice or recommendations are not acted upon then the Contractor shall require the Customer or their agent to authorise commencement of the Works in writing. The Contractor shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.

2.7. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2011 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Authorised Representatives
3.1. The Customer acknowledges that the Contractor shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to the Contractor, that person shall have the full authority of the Customer to order any Works and/or to request any variation thereto on the Customer’s behalf. The Customer accepts that they will be solely liable to the Contractor for all additional costs incurred by the Contractor (including the Contractor’s profit margin) in providing any Works or variation/s requested thereto by the Customer’s duly authorised representative.

4. Errors and Omissions
4.1. The Customer acknowledges and accepts that the Contractor shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
a. resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this Contract; and/or
b. contained in/omitted from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Works.

4.2. In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

4.3. In circumstances where the Customer is required to place an order for Materials, in writing, or otherwise as permitted by these terms and conditions, the Customer is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Materials (whether they are made to order Materials or not). ('Customer Error'). The Customer must pay for all Materials it orders from the Contractor notwithstanding that such Materials suffer from a Customer Error and notwithstanding that the Customer has not taken or refuses to take delivery of such Materials. The Contractor is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Customers Errors.

5. Change in Control
5.1. The Customer shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by the Contractor as a result of the Customer’s failure to comply with this clause.

6. Price and Payment
6.1. At the Contractor’s sole discretion the Price shall be either:
a. as indicated on invoices provided by the Contractor to the Customer in respect of Works performed or Materials supplied; or
b. the Price as at the date of delivery of the Works according to the Contractor’s current Price list; or
c. the Contractor’s quoted Price (subject to clause 6.2) which shall be binding upon the Contractor provided that the Customer shall accept the Contractor’s quotation in writing within sixty (60) days.

6.2. The Contractor reserves the right to change the Price:
a. if a variation to the Materials which are to be supplied is requested; or
b. if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
c. where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the Worksite, obscured building/Worksite defects, incorrect measurements, plans and/or specifications provided by the Customer, safety considerations (discovery of asbestos, etc.), availability of machinery including crane, hoist or other lifting or demolition equipment, prerequisite work by any third party not being completed, lack of required utilities, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, hard rock barriers below the surface, iron reinforcing rods in concrete or hidden pipes and wiring, etc.) which are only discovered on commencement of the Works; or
d. in the event of increases to the Contractor in the cost of labour or Materials which are beyond the Contractor’s control.

6.3. Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Customer shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

6.4. At the Contractor’s sole discretion, a non-refundable deposit may be required.

6.5. Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by the Contractor, which may be:
a. before delivery of the Works; or
b. on completion of the Works; or
c. seven (7) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
d. the date specified on any invoice or other form as being the date for payment; or
e. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Contractor.

6.6. Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and the Contractor.

6.7. The Contractor may in its discretion allocate any payment received from the Customer towards any invoice that the Contractor determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Contractor may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Contractor, payment will be deemed to be allocated in such manner as preserves the maximum value of the Contractor’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.

6.8. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Customer must notify the Contractor in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Contractor investigates the dispute claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Contractor placing the Customer’s account into default and subject to default interest in accordance with clause 20.1.

6.9. Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other contract for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.

7. Provision of the Works
7.1. Subject to clause 7.2 it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2. The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to any failure by the Customer to:
a. make a selection; or
b. have the Worksite ready for the Works; or
c. notify the Contractor that the Worksite is ready.

7.3. At the Contractor’s sole discretion, the cost of delivery is included in the Price.

7.4. Any time specified by the Contractor for delivery of the Works is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Works as agreed solely due to any action or inaction of the Customer, then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

8. Risk
8.1. If the Contractor retains ownership of the Materials under clause 15 then:
a. where the Contractor is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by the Contractor or the Contractor’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address); or
b. where the Contractor is to both supply and install Materials then the Contractor shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.

8.2. Notwithstanding the provisions of clause 8.1 if the Customer specifically requests the Contractor to leave Materials outside the Contractor’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.

8.3. All potential surfaces are subject to an inspection by the Contractor prior to the commencement of the Works. In the event that the surface is deemed unsuitable, then the Contractor reserves the right to halt the Works until such time as it is agreed between the Contractor and the Customer as to the additional cost in further preparation of the surface in order to make it fit for the Works to commence. The additional cost shall be charged as a variation to the quotation as per clause 6.2.

8.4. The Contractor shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. In the event that any of this information provided by the Customer and/or marking out of the proposed area by the Customer is inaccurate, the Contractor accepts no responsibility for any loss, damages, or costs however resulting from these inaccuracies where installation decisions need to be made by the Contractor in the Customer absence because the Customer has failed to comply with this clause.

8.5. The Customer acknowledges and accepts that, under no circumstances, will the Contractor handle removal of asbestos product. In the event asbestos (or other hazardous material) is discovered on Worksite:
a. the Contractor shall suspend the Works;
b. the Customer shall be fully responsible for the resolution of any resulting problems; and
c. any additional cost incurred by the Contractor shall be added to the Price under clause 6.2.

8.6. In the event that during the course of the Contractor discovers any fossils, artefacts or any other remains of geological or archaeological interest then the Contractor reserves the right to halt all Works and immediately notify the Customer. The Customer accepts and agrees that all additional costs that may be incurred by the Contractor as a result of any such delays shall be borne by the Customer and shall be treated as a variation in accordance with clause 6.2.

8.7. The Contractor shall not be liable for any defect in the Works, (including, but not limited to, any loss or damage to the Works that is caused by any other tradesmen during and after the completion of the Works or delays caused by any other third party suppliers that impacts on the provision of the Works by the Contractor.

9. Customer’s Responsibilities
9.1. Where the Contractor requires that materials, equipment and machinery, or plant and tools required for the Works be stored at the Worksite, the Customer shall supply the Contractor a safe area for storage and shall take all reasonable efforts to protect all items from possible destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Customer’s responsibility.

9.2. Unless otherwise agreed it shall be the Customer’s responsibility to (where applicable) to ensure that, prior to commencement of the Works that:
a. appropriate surveying is completed (including, but not limited to, detailed excavation including footings, bored pier wall detail etc);
b. any excavation and the removal of rock, rubbish, tree waste and/or vegetation or contaminated soil is removed;
c. traffic management and a street sweeper are arranged;
d. concrete is supplied for any construction works that may be required;
e. arrangement is made for any demolition works;
f. arrangement is made for the removal of any spoil resulting from dry fill;
g. all gas and electricity are cancelled and disconnected (from the main supply at the street); and
h. a safety fence is erected around the perimeter of the Worksite to ensure public safety.

10. Insurance
10.1 The Contractor shall have public liability insurance of at least ten million dollars ($10m). It is the Customer’s responsibility to ensure that they are similarly insured.

11. Worksite Access and Condition
11.1. The Contractor is not responsible for the removal of rubbish from or clean-up of the building/construction Worksite/s. All rubbish generated by the Contractor will be placed in a designated area appointed by the Customer but the responsibility of removal of same is the Customer or the Customer’s agent, unless otherwise agreed.

11.2. It is the intention of the Contractor and agreed by the Customer that:
a. it is the responsibility of the Customer to provide crushed rock for access if required and to ensure that access is suitable to accept the weight of laden trucks, trailers front end loaders or other equipment as may be deemed necessary by the Contractor;
b. the Customer shall ensure that the Contractor has clear and free access to the Worksite at all times to enable them to undertake the Works (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Materials). The Contractor shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Contractor;
c. it is the Customer’s responsibility to provide the Contractor, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities; and
d. the Customer shall contact adjoining neighbours and gain their permission to remove any walls or fences on boundaries and unless otherwise agreed, it shall be the Customer’s responsibility to organise either temporary fencing and/or security guards to secure the Worksite during the performance of the Works by the Contractor and shall be liable for all costs associated in taking all reasonable precautions to protect against destruction or damage by way of vandalism or theft. Failure to comply with this clause 11.2(d) in the event that the Worksite is destroyed or damaged due to vandalism then the cost of repair or replacement shall be borne by the Customer.

11.3. The Customer agrees to be present at the Worksite when and as reasonably requested by the Contractor and its employees, contractors and/or agents.

11.4. Worksite Inductions
a. in the event the Customer requires an employee or sub-contractor of the Contractor to undertake a Worksite induction during working hours, the Customer will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Customer shall be liable to pay the Contractor’s standard (and/or overtime, if applicable) hourly labour rate; or
b. where the Contractor is in control of the Worksite, the Customer and/or the Customer’s third party contractors must initially carry out the Contractor’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Customer and/or third party acting on behalf of the Customer must at all times be accompanied by the Contractor.

12. Underground Locations
12.1. Prior to the Contractor commencing any work the Customer must advise the Contractor of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Customer 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 the Worksite.

12.2. Whilst the Contractor will take all care to avoid damage to any underground services the Customer agrees to indemnify the Contractor 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 12.1.

13. Compliance with Laws
13.1. The Customer and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any work health and safety laws (WHS) relating or any other relevant safety standards or legislation pertaining to the Works.

13.2. Both parties acknowledge and agree:
a. to comply with the National Construction Code of Australia (NCC) and comply with section74AA (products associated with building works and/or the intended use) and section 74AE (Chain of Responsibility) of the QBCC Act 1991, in respect of all workmanship and building products to be supplied during the course of the Works; and
b. that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.

13.3. Where the Customer has supplied products for the Contractor to complete the Works, the Customer acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in the Contractor’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with state and/or territory regulations, then the Contractor shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.

13.4. The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.

14. Modern Slavery
14.1. For the purposes of this clause:
a. “Act” means the Modern Slavery Act 2018 (cth)
b. “Modern Slavery”, “Modern Slavery Statement” and “Reporting Entity” have the meanings given by the Act.

14.2. If the Customer is a Reporting Entity, it shall comply with all of its obligations under the Act.
14.3. Whether the Customer is a Reporting Entity or not, the Customer shall:
a. use reasonable endeavours to identify, assess and address risks of modern slavery practices in its operations and supply chains;
b. use its reasonable endeavours to ensure that the personnel responsible for managing the operations and supply chains used for the purposes of the Contract have undertaken suitable training to identify and report Modern Slavery;
c. use its reasonable endeavours to ensure that if at any time the Customer becomes aware of Modern Slavery practices in its operations and supply chains, the Customer must as soon as reasonably practicable take all reasonable steps to address or remove these practices;
d. provide to the Contractor a copy of any Modern Slavery Statement that it submits under the Act within seven (7) days of so doing; and
e. within seven (7) days of the Contractor’s request (or such longer period as the Contractor agrees), provide to the Contractor any information or assistance reasonable requested by the Contractor;
i. concerning the Customer’s compliance with the Act;
ii. concerning the Customer’s operations and supply chains;
iii. to enable the Contractor to prepare a Modern Slavery Statement or otherwise comply with the Act; or
iv. to enable the Contractor to assess and address risks of Modern Slavery practices in its operations and supply chains.

14.4. The parties agree that in the circumstances a breach arises pursuant to this clause or the terms of the Act, the parties will try and resolve the breach by way of remediation and the Contractor will be able to terminate the Contract for any breach by the Customer.

14.5. The Customer warrants that any information supplied to the Contractor is true and accurate and may be relied upon for the purposes of the Act.

14.6. The Customer shall indemnify the Contractor against any loss or liability suffered by the Contractor as a result of the Customer’s breach of this clause 14.

15. Title
15.1. The Contractor and the Customer agree that ownership of the Materials shall not pass until:
a. the Customer has paid the Contractor all amounts owing to the Contractor; and
b. the Customer has met all of its other obligations to the Contractor.

15.2. Receipt by the Contractor 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.

15.3. It is further agreed that until ownership of the Materials passes to the Customer in accordance with clause 15.1:

a. the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Contractor on request;

b. the Customer holds the benefit of the Customer’s insurance of the Materials on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;

c. the production of these terms and conditions by the Contractor shall be sufficient evidence of the Contractor’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Contractor to make further enquiries;

d. the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for the Contractor and must pay or deliver the proceeds to the Contractor on demand;

e. the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Contractor and must sell, dispose of or return the resulting product to the Contractor as it so directs;

f. unless the Materials have become fixtures the Customer irrevocably authorises the Contractor to enter any premises where the Contractor believes the Materials are kept and recover possession of the Materials;

g. the Contractor may recover possession of any Materials in transit whether or not delivery has occurred;

h. the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Contractor;

i. the Contractor may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.

16. Personal Property Securities Act 2009 (“PPSA”)
16.1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

16.2. Upon assenting to these terms and conditions in writing the Customer 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 Materials and/or collateral (account) – being a monetary obligation of the Customer to the Contractor for Works – that have previously been supplied and that will be supplied in the future by the Contractor to the Customer.

16.3. The Customer undertakes to:

a. 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 Contractor may reasonably require to:

i. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

ii. register any other document required to be registered by the PPSA; or

iii. correct a defect in a statement referred to in clause 16.3(a)(i) or 16.3(a)(ii);

b. indemnify, and upon demand reimburse, the Contractor 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 Materials charged thereby;
c. not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;

d. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of the Contractor;

e. immediately advise the Contractor of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.

16.4. The Contractor and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

16.5. The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

16.6. The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

 16.7. Unless otherwise agreed to in writing by the Contractor, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.

16.8. The Customer shall unconditionally ratify any actions taken by the Contractor under clauses 16.3 to 16.5.

16.9. Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

17. Security and Charge
17.1. In consideration of the Contractor agreeing to supply the Materials, the Customer 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 Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

17.2. The Customer indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising the Contractor’s rights under this clause.

17.3. The Customer irrevocably appoints the Contractor and each director of the Contractor as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Customer’s behalf.

18. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)
18.1. The Customer must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify the Contractor in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Contractor to inspect the Materials or to review the Works provided.

18.2. 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).

18.3. The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

18.4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.

18.5. If the Customer is a consumer within the meaning of the CCA, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2.

18.6. If the Contractor is required to replace any Materials under this clause or the CCA, but is unable to do so, the Contractor may refund any money the Customer has paid for the Materials.

18.7. If the Contractor is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then the Contractor may refund any money the Customer has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Customer which were not defective.

18.8. If the Customer is not a consumer within the meaning of the CCA, the Contractor’s liability for any defect or damage in the Materials is:

a. limited to the value of any express warranty or warranty card provided to the Customer by the Contractor at the Contractor’s sole discretion;
b. limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Materials;
c. otherwise negated absolutely.

18.9. Subject to this clause 18, returns will only be accepted provided that:
a. the Customer has complied with the provisions of clause 18.1; and
b. the Contractor has agreed that the Materials are defective; and
c. the Materials are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
d. the Materials are returned in as close a condition to that in which they were delivered as is possible.

18.10. Notwithstanding clauses 18.1 to 18.9 but subject to the CCA, the Contractor shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
a. the Customer failing to properly maintain or store any Materials;
b. the Customer using the Materials for any purpose other than that for which they were designed;

c. the Customer continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

d. interference with the Works by the Customer or any third party without the Contractor’s prior approval;

e. the Customer failing to follow any instructions or guidelines provided by the Contractor;

f. fair wear and tear, any accident, or act of God.

18.11. The Contractor may in its absolute discretion accept non-defective Materials for return in which case the Contractor may require the Customer to pay handling fees of up to twenty-five percent (25%) of the value of the returned Materials plus any freight costs.

18.12. Notwithstanding anything contained in this clause if the Contractor is required by a law to accept a return, then the Contractor will only accept a return on the conditions imposed by that law.

18.13. Subject to clause 18.1, customised, or non-stocklist items or Materials made or ordered to the Customer’s specifications are not acceptable for credit or return.

19. Intellectual Property
19.1. Where the Contractor has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Contractor, and shall only be used by the Customer at the Contractor’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Contractor.

19.2. The Customer warrants that all designs, specifications or instructions given to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.

19.3. The Customer agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Contractor has created for the Customer.

20. Default and Consequences of Default
20.1. 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 Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

20.2. If the Customer owes the Contractor any money, the Customer shall indemnify the Contractor from and against all costs and disbursements:
a. incurred; and/or
b. which would be incurred and/or

c. for which by the Customer would be liable;

in regard to legal costs on a solicitor and own Customer basis, internal administration fees, the Contractor’s contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.

20.3. Further to any other rights or remedies the Contractor may have under this Contract, if a Customer has made payment to the Contractor, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 20 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.

20.4. Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:
a. any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Customer will be unable to make a payment when it falls due;
b. the Customer has exceeded any applicable credit limit provided by the Contractor;

c. the Customer becomes insolvent or bankrupt, 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

d. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

21. Cancellation
21.1. Without prejudice to any other remedies the Contractor may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Works to the Customer. The Contractor will not be liable to the Customer for any loss or damage the Customer suffers because the Contractor has exercised its rights under this clause.

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