Terms of Trade

1.

  

Definitions
1.1   “HHW” shall mean M L & P B Davidson T/A Hornsby Hot Water, its successors and assigns or any person acting on behalf of and with the authority of M L & P B Davidson T/A Hornsby Hot Water.
1.2   “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by HHW to the Customer.
1.3   “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4   “Works” shall mean all work performed by HHW for the Customer, including any advice or recommendations (and where the context so permits shall include any supply of Materials as hereinafter defined), and are as described on the invoices, quotation, work authorisation or any other forms as provided by HHW to the Customer.
1.5   “Materials” shall mean all Materials supplied by HHW for the completion of the Works.
1.6   “Price” shall mean the cost payable for the Works as agreed between HHW and the Customer in accordance with clause 4 of this contract.
     

2.

  

The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1   Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2   Where the Customer purchases Works as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
     

3.

  

Acceptance
3.1   Any instructions received by HHW from the Customer for the performance of Works and/or the Customer’s acceptance of Works performed by HHW shall constitute acceptance of the terms and conditions contained herein.
3.2   Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3   Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of HHW.
3.4   The Customer shall give HHW not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by HHW as a result of the Customer’s failure to comply with this clause.
3.5   Works are performed by HHW only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade. 
     

4.

  

Price and Payment
4.1   At HHW’s sole discretion the Price shall be either:
(a)    as indicated on invoices provided by HHW to the Customer in respect of Works performed; or
(b)    HHW’s quoted Price (subject to clause 4.2) which shall be binding upon HHW provided that the Customer shall accept HHW’s quotation in writing within thirty (30) days. HHW’s quotation does not include:
(i)     any rock excavation or rock-like substance; and
(ii)    the diversion or repair of any services that may be required to carry out the Works; and
(iii)   the removal of excess soils and spoils created by the Works; and
(iv)   any landscape and/or electrical work that may be required; and
(v)    any work relating to water proofing, the clearing of stormwater drains or the upgrade of existing piping system may be required; and
(vi)    the supply of taps, toilets, sinks, fittings and fixtures; and
(vii)   drilling of tiles that may require special drill bits, and the subsequent purchase of the same.
4.2   HHW reserves the right to change the Price in the event of a variation to HHW’s quotation. Any variation from the plan of scheduled Works or specifications (including, but not limited to, any variation as a result of additional work required due to hidden or unidentifiable difficulties beyond the reasonable control of HHW such as hard rock barriers below the surface or iron reinforcing rods in concrete) will be detailed in writing and charged for on the basis of HHW’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3   At HHW’s sole discretion:
(a)    payment shall be due on completion of the Works; or
(b)    detailed progress payment claims may be submitted by HHW in accordance with the specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed.
4.4   Time for payment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
4.5   Payment will be made by cash, cheque, bank cheque, credit card (plus a surcharge of up to 5% of the Price), direct credit, or by any other method as agreed to between the Customer and HHW.
4.6   GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
     

5.

  

Delivery of the Works
5.1   Subject to clause 5.2 it is HHW’s responsibility to ensure that the Works start as soon as it is reasonably possible.
5.2   The Works commencement date will be put back and the completion date extended by whatever time is reasonable in the event that HHW claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond HHW’s control including but not limited to any failure by the Customer to:
(a)    make a selection; or
(b)    have the site ready for the Works; or
(c)    notify HHW that the site is ready.
5.3   The failure of HHW to deliver shall not entitle either party to treat this contract as repudiated.
5.4   HHW shall not be liable for any loss or damage whatsoever due to failure by HHW to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the control of HHW.
     

6.

  

Risk
6.1   Notwithstanding that HHW retains ownership of the Materials, all risk for the Materials passes to the Customer on delivery to the site. If any of the Materials are damaged or destroyed following delivery to the site, but prior to completion of the Works, the Customer shall be liable for any costs incurred by HHW in replacing or repairing the Materials.
6.2   The Customer acknowledges and agrees that the clearing of blocked drains does not imply that the cause of the blockage has been rectified, which can be caused by the presence of plant/tree root growth, faulty joints or broken pipes and/or blockages (including, but not limited to, children’s toys, tampons, disposable nappies, cement or fillers grout); therefore no warranty is provided against this situation arising again in the future and in respect of any work carried out in relation thereto. It is recommended to the Customer that should the blockage recur in a short time, that further investigation be carried out to determine the exact cause of the problem so that a more permanent remedy can be achieved.
     

7.

  

Access
7.1   The Customer shall ensure that HHW has clear and free access to the site at all times to enable them to undertake the Works. HHW shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of HHW.
     

8.

  

Underground Locations
8.1   Prior to HHW commencing the Works, the Customer must advise HHW of the precise location of all underground services on the site 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 site.
8.2   Whilst HHW will take all care to avoid damage to any underground services the Customer agrees to indemnify HHW 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 8.1.
     

9.

  

Title
9.1   HHW and the Customer agree that ownership of the Materials shall not pass until:
(a)    the Customer has paid HHW all amounts owing for the particular Materials; and
(b)    the Customer has met all other obligations due by the Customer to HHW in respect of all contracts between HHW and the Customer.
9.2   Receipt by HHW 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 HHW’s ownership or rights in respect of the Materials and this agreement shall continue.
9.3   It is further agreed that:
(a)    where practicable the Materials shall be kept separate and identifiable until HHW shall have received payment and all other obligations of the Customer are met; and
(b)    until such time as ownership of the Materials shall pass from HHW to the Customer HHW may give notice in writing to the Customer to return the Materials or any of them to HHW.  Upon such notice the rights of the Customer to obtain ownership or any other interest in the Materials shall cease; and
(c)    HHW shall have the right of stopping the Materials in transit whether or not delivery has been made; and
(d)    if the Customer fails to return the Materials to HHW then HHW or HHW’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Materials are situated and take possession of the Materials; and
(e)    the Customer is only a bailee of the Materials and until such time as HHW has received payment in full for the Materials then the Customer shall hold any proceeds from the sale or disposal of the Materials, up to and including the amount the Customer owes to HHW for the Materials, on trust for HHW; and
(f)    the Customer shall not deal with the money of HHW in any way which may be adverse to HHW; and
(g)    the Customer shall not charge the Materials in any way nor grant nor otherwise give any interest in the Materials while they remain the property of HHW; and
(h)    HHW can issue proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials may not have passed to the Customer; and
(i)    until such time that ownership in the Materials passes to the Customer, if the Materials are converted into other products, the parties agree that HHW will be the owner of the end products.
     

10.

  

Personal Property Securities Act 2009 (“PPSA”)
10.1   In this clause:
(a)    financing statement has the meaning given to it by the PPSA;
(b)    financing change statement has the meaning given to it by the PPSA;
(c)    security agreement means the security agreement under the PPSA created between the Customer and HHW by these terms and conditions; and
(d)    security interest has the meaning given to it by the PPSA.
10.2   Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions:
(a)    constitute a security agreement for the purposes of the PPSA; and
(b)    create a security interest in:
(i)    all Materials previously supplied by HHW to the Customer (if any);
(ii)    all Materials that will be supplied in the future by HHW to the Customer.
10.3   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 HHW 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 10.3(a)(i) or 10.3(a)(ii);
(b)    indemnify, and upon demand reimburse, HHW 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 HHW;
(d)    not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of HHW; and
(e)    immediately advise HHW 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.
10.4   HHW 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.
10.5   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.
10.6   The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7   Unless otherwise agreed to in writing by HHW, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
10.8   The Customer shall unconditionally ratify any actions taken by HHW under clauses 10.3 to 10.5.
     

11.

  

Security and Charge
11.1   Despite anything to the contrary contained herein or any other rights which HHW may have howsoever:
(a)    where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to HHW or HHW’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that HHW (or HHW’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b)    should HHW elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify HHW from and against all HHW’s costs and disbursements including legal costs on a solicitor and own client basis.
(c)    the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint HHW or HHW’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 11.1.
     

12.

  

Errors and Omissions
12.1   The Customer shall inspect the Works on completion and shall within seven (7) days of such time (being of the essence) notify HHW of any alleged defect, error or omission, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford HHW an opportunity to inspect the Works within a reasonable time following such notification if the Customer believes the Works are defective in any way. If the Customer shall fail to comply with these provisions the Works shall be presumed to be free from any defect or damage. For defective Works, which HHW has agreed in writing that the Customer is entitled to reject, HHW’s liability is limited to either (at HHW’s discretion) replacing the Works or rectifying the Works except where the Customer has acquired Works as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Works, or rectification of the Works, or replacement of the Works.
12.2   HHW may (at their sole discretion) accept the return of Materials for credit but this may incur a handling fee of up to forty-five percent (45%) of the value of the returned Materials plus any freight costs.
     

13.

  

Warranty
13.1   For Materials not manufactured by HHW, the warranty shall be the current warranty provided by the manufacturer of the Materials. HHW shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.
13.2   To the extent permitted by statute, no warranty is given by HHW as to the quality or suitability of the Works for any purpose and any implied warranty, is expressly excluded. HHW shall not be responsible for any loss or damage to the Works, or caused by the Works, or any part thereof however arising.
     

14.

  

Intellectual Property
14.1   Where HHW has designed, drawn or written plans or a schedule of Works for the Customer, then the copyright in those designs, plans, schedules, drawings and documents shall remain vested in HHW, and shall only be used by the Customer at HHW’s discretion.
14.2   The Customer warrants that all designs or instructions to HHW will not cause HHW to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify HHW against any action taken by a third party against HHW in respect of any such infringement.
     

15.

  

Default and Consequences of Default
15.1   Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at HHW’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2   In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by HHW.
15.3   If the Customer defaults in payment of any invoice when due, the Customer shall indemnify HHW from and against all costs and disbursements incurred by HHW in pursuing the debt including legal costs on a solicitor and own client basis and HHW’s collection agency costs.
15.4   Without prejudice to any other remedies HHW may have, if at any time the Customer is in breach of any obligation (including those relating to payment) HHW may suspend or terminate the Works and any of its other obligations under the terms and conditions. HHW will not be liable to the Customer for any loss or damage the Customer suffers because HHW has exercised its rights under this clause.
15.5   If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
15.6   Without prejudice to HHW’s other remedies at law HHW shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to HHW shall, whether or not due for payment, become immediately payable in the event that:
(a)    any money payable to HHW becomes overdue, or in HHW’s opinion the Customer will be unable to meet its payments as they fall due; or
(b)    the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c)    a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
     

16.

  

Cancellation
16.1   HHW may cancel any contract to which these terms and conditions apply or cancel the Works at any time before the Works are completed by giving written notice to the Customer. On giving such notice HHW shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to HHW for Works already performed. HHW shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2   In the event that the Customer cancels the Works, then the Customer shall be liable for any loss incurred by HHW (including, but not limited to, any amounts owing by the Customer to HHW for Works already performed and any loss of profits) up to the time of cancellation.
     

17.

  

Privacy Act 1988
17.1   The Customer and/or the Guarantor/s (herein referred to as the Customer) agree for HHW to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by HHW.
17.2   The Customer agrees that HHW may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a)    to assess an application by the Customer; and/or
(b)    to notify other credit providers of a default by the Customer; and/or
(c)    to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d)    to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
17.3   The Customer consents to HHW being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4   The Customer agrees that personal credit information provided may be used and retained by HHW for the following purposes (and for other purposes as shall be agreed between the Customer and HHW or required by law from time to time):
(a)    the provision of Works; and/or
(b)    the marketing of Works by HHW, its agents or distributors; and/or
(c)    analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Works; and/or
(d)    processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e)    enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Works.
17.5   HHW may give information about the Customer to a credit reporting agency for the following purposes:
(a)    to obtain a consumer credit report about the Customer;
(b)    allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
17.6   The information given to the credit reporting agency may include:
(a)    personal particulars (the Customer’s name, sex, address, previous  addresses, date of birth, name of employer and driver’s licence number;
(b)    details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c)    advice that HHW is a current credit provider to the Customer;
(d)    advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e)    that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f)    information that, in the opinion of HHW, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers credit obligations);
(g)    advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h)    that credit provided to the Customer by HHW has been paid or otherwise discharged.
     

18.

  

Building and Construction Industry Security of Payments Act 1999
18.1   At HHW’s sole discretion, if there are any disputes or claims for unpaid Works and/or Materials then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
18.2   Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
     

19.

  

Dispute Resolution
19.1   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:
(a)    referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b)    conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
     

20.

  

General
20.1   If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2   If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
20.3   These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the Hornsby Local Court.
20.4   HHW shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by HHW of these terms and conditions.
20.5   In the event of any breach of this contract by HHW the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price.
20.6   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 HHW nor to withhold payment of any invoice because part of that invoice is in dispute.
20.7   HHW may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.8   The Customer agrees that HHW may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which HHW notifies the Customer of such change. Except where HHW performs further Works for the Customer and the Customer accepts such Works, the Customer shall be under no obligation to accept such changes.
20.9   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.
20.10   The failure by HHW to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect HHW’s right to subsequently enforce that provision.

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