Trading Terms and Conditions for South City Plaster Pty Ltd
- 1. Supply of Goods and Works
(a) These Terms apply to all Orders for the supply of Goods and Works by the Company to the Customer and supplement any additional terms and conditions listed on any Quote or Quote acceptance.
(b) These Terms prevail over any other terms of the Company inconsistent with these Terms to the extent of inconsistency.
(c) All Goods supplied by the Company are suitable for the purpose which they are used and unless otherwise stated in the Quote, those Goods are new.
(d) All Works completed by the Company will be carried out in a proper and workmanlike manner with reasonable skill and care in accordance with the Specifications set out in the Quote.
(e) All Works will be carried out in accordance with all relevant laws and legal requirements.
- 2. Quotes
(a) All Quote Acceptances are to be signed by an authorised representative of the Customer and returned to the Company within seven (7) days of receipt.
(b) The Company will not supply any Goods or Works until the Quote Acceptance has been received.
(c) Any Quote given by the Company is based on current industry rates and cost of materials to Site.
(d) Any Quote that has not been accepted within fourteen (14) days will be invalid and the Customer will need to obtain a new Quote unless otherwise agreed by the Company.
(e) These Terms are included in the Quote and the Customer is taken to have read, understood and agreed to these Terms.
- 3. Orders
(a) Any Order by the Customer for the supply of Goods and Works must be subject to these Terms and such additional terms as the Company may in its absolute discretion require.
(b) Any Order by the Customer for the supply of Goods and Works shall constitute acceptance of these Terms.
(c) The Customer may not vary, amend or cancel any Order made unless agreed to in writing by the Company.
- 4. Price and Payment
Unless otherwise agreed in writing between the Parties, the Customer must pay the Company the Price for the Goods and Works, plus GST and payable as follows:
(a) 20% deposit required seven (7) days prior to the Works commencing;
(b) 35% upon Completion Hang;
(c) 30% upon completion of Stopping;
(d) 10% upon sanding and cornice work (if applicable); and
(e) 5% of the balance upon completion.
4.2 All Prices are exclusive of GST and other statutory charges or levies unless specified otherwise. The Customer indemnifies the Company in respect of any such taxes or charges payable as a result of any supply of Goods and Works by the Company to the Customer.
Unless otherwise agreed between the parties, the Company will invoice the Customer for the Goods and Works after the Company receives the signed Quote Acceptance from the Customer.
(a) For the purposes of this clause 4.4, the terms “Adjustment Event”, “Adjustment Note” and “Tax Invoice” have the same meaning as in the GST Law; “GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(b) If GST has any application to any supply made under or in connection with these Terms, the Party making the supply (for the purposes of this clause 4 only, “Supplier”) may in addition to any amount or consideration expressed as payable elsewhere in this Agreement, recover from the recipient of the supply (for the purposes of this clause 4.4 only, “Recipient”) an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by the Recipient for the relevant supply by the prevailing GST rate.
(c) Any additional amount on account of GST recoverable from the Recipient under this clause 4.4 shall be calculated without any deduction or set-off of any amount, and is payable by the Recipient at the same time and in the same manner as paying the amount or consideration for the relevant supply under these Terms.
(d) The Supplier must issue to the Recipient a Tax Invoice, and must do anything else which may be reasonably required to enable or assist the Recipient to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under these Terms or in respect of any supply under these Terms.
(e) Where an Adjustment Event in relation to a supply under these Terms has occurred, the Supplier must issue an Adjustment Note to the Recipient no later than ten (10) business days after that Adjustment Event.
- 5. Delivery of Goods and Works, Risk and Title
(a) The Company will deliver the Goods and provide Works to the Delivery Address given by the Customer.
(b) It is the Customers responsibility to ensure that that when the Company is called in to provide the Goods and Works that the Site is ready and the work area has been prepared as all Works are charged upon an estimated number of continuous hours to complete the task. Any delay caused in effecting the Goods and Works will be charged as time Variations to the Customer.
(c) It is the Customers responsibility to ensure that the Delivery Address specified on a quotation or invoice is correct and complete, including the state and post code. Orders that are undeliverable due to incorrect or incomplete addresses will be subject to re-delivery costs by the Customer.
(d) The Company will use reasonable endeavours to supply/execute Goods & Works in accordance with the Customer’s schedule. However, should supply/execution of the Goods and Works be early or delayed for any reason beyond the control of the Company or as a result of any cause which the Client is or should reasonably have been aware of, all Loss arising will be the Client’s responsibility and the Client shall indemnify the Company in respect of such Loss.
(e) The Customer will not hold the Company responsible for any Loss or damage whatsoever as a result of incomplete or incorrect delivery details.
(f) Upon delivery of the Goods, the Customer shall immediately inspect Goods for any damage to the Goods or shortage of Goods.
(g) Any claim for a shortage of Goods, damage or defects to the Goods or non-compliance with Specifications must be made in writing by email to email@example.com and accompanied by high resolution photographs within 24 hours of delivery. If the Customer fails to advise the Company of any shortage, damage, defect or non-compliance with 24 hours of delivery, the Customer is deemed to have accepted the Goods.
(h) The Company reserves the right to inspect the Goods and to seek its own assessment of any goods notified under clause 5.1.
(i) Damaged Goods will be collected by the Company within seven (7) days of receipt of the Goods. Replacement of the Goods will be despatched subject to availability.
5.2 Risk and Title
(a) Risk in the Goods shall pass to the Customer immediately upon delivery. Title in the Goods delivered will not pass to the Customer if the Customer has not paid the Company for those Goods in full.
(b) The Customer will hold all Goods on trust and as bailee for the Company until all amounts owed by the Customer to the Company have been paid in full.
(c) The right of the Customer to deal with the Goods ceases immediately upon the appointment to the Customer of any liquidator, receiver, receiver and manager, administrator, provisional liquidator, or bankruptcy trustee.
- 6. Personal Property and Securities
(a) For the purposes of this clause 6:
(i) “Collateral” means the Goods;
(ii) “PMSI” has the meaning given to the term “purchase money security interest” in section 14 of the PPSA;
(iii) “PPSA” means the Personal Property Securities Act 2009 (Cth);
(iv) Security Interest has the meaning given to that term in section 12 of the PPSA; and
(v) “proceeds”, “control”, “verification statement”, “financing statement”, and “financing change statement” each have the meaning given to those terms in the PPSA.
(b) The Customer acknowledges and agrees that by virtue of clause 5.2, the Company has a Security Interest in the Goods and the proceeds relating to the Goods for the purposes of the PPSA.
(c) The Customer agrees that the Company may do anything the Company considers reasonably necessary including, but not limited to, registering those Security Interests under the PPSA (including as a PMSI) in order to perfect the Security Interests and comply with the requirements of the PPSA.
(d) The Customer agrees that it will do all things necessary to assist the Company to take the steps referred to in clause 6(c).
(e) The Customer agrees that the Company has an absolute discretion to apply any money received as a result of supplying the Goods or which represent the proceeds of enforcement of any Security Interests it holds, whether as contemplated under clause 5.2 or otherwise, in reduction of any part or parts of the moneys secured to the Company by any such Security Interests, whether and on whatever account it became secured, despite any principle or presumption of law to the contrary or any direction given to the Company at the time of receipt and without the need to communicate the Company’s election to any person
(f) The Customer and the Company agree that, pursuant to section 115 of the PPSA, the provisions of the PPSA referred to in section 115(1)(a), (c), (d), (e), (f), (h), (l), (m), (n), (p), (q) and (r) of the PPSA do not apply in relation to the security interest created under clause 5.2 to the extent, if any, mentioned in that section.
(g) The Customer and the Company agree that, subject to section 275(7) of the PPSA, neither of them will disclose information of the kind mentioned in section 275(1) of the PPSA pursuant to section 275(4) of the PPSA.
(h) The Customer irrevocably and unconditionally waives its right to receive a copy of any financing statement, financing change statement or verification statement that is or may be registered, issued or received at any time.
(i) Upon termination or cessation of a Security Interest in favour of the Company under these Terms, the Company must, on request from Customer, do all things necessary to remove or withdraw the registration of the Security Interest from the PPSR as soon as practicable and in any event within 14 days of receiving the request from the Customer.
(j) The provisions of this clause 6 apply notwithstanding any arrangement under which the Company grants credit to Customer.
- 7. Security and Charge
(a) Where the Customer and/or Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under these Terms. The Customer and/or Guarantor acknowledge and agree that the Company (or the Company’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 been met.
- 8. Variations
The Company is not obliged to carry out any Variation which is outside the scope of the Goods and Works. Any Variation that the Company does carry out shall be subject to these Terms and shall be charged to and paid for by the Customer at an agreed rate or failing agreement, at a rate determined by the Company.
- 9. Indemnity & Liability
(a) The Customer assumes all risks and liability in respect of any use of the Goods, whether used along or in conjunction with other goods and Goods.
(b) The Company’s liability for damages, whether based upon the Company’s negligence, breach of contract, breach of warranty or otherwise, shall not exceed the Price with respect to which a claim is based and shall not include liability for special, incidental, indirect, punitive or consequential damages including, but not limited to, lost profits, injury to good will, and damages for injuries to persons or to property. This limitation of liability shall include the Company’s liability for damage to persons or property resulting from the use of the Goods in manufacturing processes, or in combination with other substances, or otherwise. The Company assumes no obligation or liability for any technical or safety advice it furnishes concerning the Goods, the parties agreeing that all such advice is given without charge or warranty and accepted at the Customer’s risk.
(c) Provisions of the Competition and Consumer Act 2010 (Cth) or any applicable State, Territory or Commonwealth legislation may imply warranties, confer statutory guarantees or impose other obligations on the Company which cannot be excluded, restricted or modified at all or except to a limited extent. To the extent permitted by law, the Company’s liability under such provisions shall be limited at the Company’s option to:
(i) the replacement of any affected Goods and/or Services;
(ii) the refund of the price paid for any affected Goods or Services;
(iii) the payment of any amount equal to the cost of replacing any affected Goods or Services.
(d) All other conditions and warranties apart from those referred to in clause 9.1(c), whether express or implied or applied by law in respect of the Goods and Works are expressly excluded and negatived.
(e) To the extent permitted by law, the Customer indemnifies the Company, its Affiliates and their employees, agents, contractors and keeps them indemnified and held harmless from and against any liability, cost, claim, expense (including attorney’s fees and expenses) or any loss or damage of any other kind whatsoever including, without limitation, any material or immaterial damage in the form of personal injury, illness or death to any person or damage to any property arising directly from or in direct connection with any breach of failure to perform obligations under these Terms by the Customer.
(f) The Customer shall make no claims relating to the Goods or Works unless the Company receives sufficient written notification of the facts relating to such claims as soon as the Customer becomes aware of those facts. Such written notification must also be adequately documented to the Company’s satisfaction.
(a) The Company is not responsible for any failure to perform any obligation under these Terms if its performance has become impossible due to fire, lightning, explosion, flood, earthquake, storm, hurricane, action of the elements, riots, civil commotion, malicious damage, armed conflicts, acts of terrorism, war (declared or undeclared), blockade, revolution, sabotage, radioactive contamination, toxic or dangerous chemical contamination, natural catastrophes or any other events beyond the reasonable control of the Company (each a “Force Majeure Event”).
(b) If by reason of a Force Majeure Event, the delay or non-performance of the Company’s obligations continues for more than ninety (90) consecutive days, the Company may refund any monies paid for Goods and Works that have not been delivered and cancel any Order.
(a) If the Customer is a company, a director of the Customer company agrees to be the guarantor of the Customer and guarantees to the Company the performance by the Customer of all of its obligations under these Terms and indemnifies the Company from and against all and any costs claims damages and expenses whatsoever and howsoever arising out of the breach or non-performance by the Customer of these Terms.
(b) The guarantee and indemnity referred to in clause 11 continues during the currency of these Terms and until all obligations under these Terms have been satisfied to the discretion of the Company. The guarantor’s liability shall not be affected by the Company giving time or any other concession indulgence or compromise to the Customer for the performance of its obligations.
(c) This guarantee and indemnity may be enforced against the guarantor without the Company first taking action against the Customer or pursuing any other available recourse and may be enforced despite any neglect or omission to enforce any rights against the Customer or if any of the agreements between the Company and Customer are wholly or partially unenforceable or if the Customer goes into liquidation.
(a) The Company reserves the right to change these Terms at any time without notification or consent. Any variation to these Terms must be in writing and signed by the Company.
(b) These Terms are governed by the laws of the State of Victoria. The Parties submit to the non-exclusive jurisdiction of the courts in the State of Victoria in relation to these Terms.
(c) If any part of clause of these Terms is held illegal or unenforceable then that clause or part may be severed with the remaining clauses or parts remaining in full force and effect.
13.Definitions and Interpretation
In this Agreement, unless the context otherwise necessarily requires:
(a) Company means South City Plaster Pty Ltd;
(b) Completion Hang means the completed fixing of plasterboard to the customer’s ceiling and/or wall frame;
(c) Customer means any person, firm or corporation including successors, administrators and assignors who have requested the supply of Goods and Works by the Company;
(d) Delivery Address means the delivery point for the Goods specified by the Customer;
(e) Goods means any goods which the Company has agreed to supply to the Customer;
(f) Loss means any liability, however it arises (including as a result of negligence) and includes any loss, claim, damage, demand, injury or death and a fine or penalty imposed by a statutory or other authority;
(g) Order means the Goods and Works that the Company has agreed to supply the Customer in accordance with these Terms and the Quote;
(h) Parties means the Company and the Customer, and each is referred to in these Terms as a “Party”;
(i) PPSA means the Personal Properties Securities Act 2009 (Cth);
(j) PMSI means a purchase money security interest as defined by the PPSA;
(k) Price means the amount payable by the Company to the Customer for the Goods;
(l) Quote means the price payable for the agreed Goods and Works as set out in the Company’s standard form given to the Customer;
(m) Security Interest and purchase money security interest and all related terms have the meanings given to them by PPSA;
(n) Site means the location for supply/performance of the Goods and Works specified in the Quote;
(o) Completion Stopping means the completed filling and trowelling of all penetrations in the plasterboard as a result of fixing;
(p) Variation means an omission or addition to the Work or a change in the scope of the Goods and Works; and
(q) Works means the works and services that the Company has agreed to supply the Customer in accordance with the Quote