1.1 “Plumber” shall mean a holder of an appropriate License with the Office of Fair Trading (OFT) and its successors and assigns.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Plumber to the Client (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Plumber to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 “Price” shall mean the cost of the Goods as agreed between the Plumber and the Client subject to clause 4 of this contract.
2.1 Any instructions received by the Plumber from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by the Plumber shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Plumber.
2.4 None of the Plumber’s agents or representatives are authorized to make any representations, statements, conditions or agreements not expressed by the manager of the Plumber in writing nor is the Plumber bound by any such unauthorized statements.
2.5 The Client undertakes to give the Plumber not less than fourteen (14) days prior written notice of any proposed change in the Client’s name and/or any other change in the Client’s details(including but not limited to, changes in the Client’s address, facsimile number, or business practice).
3.1 The Goods are as described on the invoices, quotation, work authorization or any other work commencement forms as provided by the Plumber to the Client.
4.PRICE AND PAYMENT
4.1 At the Plumber’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Plumber to the Client in respect of Goods supplied; or
(b) the Plumber’s quoted Price (subject to clause 4.2) which shall be binding upon the Plumber provided that the Client shall accept in writing the Plumber’s quotation within thirty (30) days.
4.2 Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Plumber’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 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.4 At the Plumber’s sole discretion, payment for approved Clients shall be made by instalments in accordance with the Plumber’s delivery/payment schedule.
4.5 At the Plumber’s sole discretion, for certain approved Clients payment will be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Client and the Plumber.
4.7 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent those taxes are expressly included in any quotation given by the Plumber.
5.DELIVERY OF GOODS/SERVICES
5.1 Delivery of the Goods shall be made to the Client’s address. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
5.2 The Plumber may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.3 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.4 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:-
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.5 The failure of the Plumber to deliver shall not entitle either party to treat this contract as repudiated.
5.6 The Plumber shall not be liable for any loss or damage whatever due to failure by the Plumber to deliver the Goods (or any of them) promptly or at all.
6.1 If the Plumber retains property in the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Client, the Plumber is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Plumber is sufficient evidence of the Plumber’s rights to receive the insurance proceeds without the need for any person dealing with the Plumber to make further enquiries.
7.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Plumber and the Client acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Plumber shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Client and shall not be transferable to any subsequent Client.
8.1 The Client shall inspect the Goods on delivery and shall within one (1) months of delivery notify the Plumber of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Plumber an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.2 For defective Goods, which the Plumber has agreed in writing that the Client is entitled to reject, the Plumber’s liability is limited to either (at the Plumber’s discretion) replacing the Goods or repairing the Goods provided that:-
(a) the Client has complied with the provisions of clause 8.1;
(b) the Plumber will not be liable for Goods which have not been stored or used in a proper manner;
(c) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonable possible in the circumstances.
9.1 For Goods not manufactured by the Plumber, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Plumber shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
10.THE COMMONWEALTH TRADE PRACTICES ACT 1974 AND FAIR TRADING ACTS
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11.1 Where the Plumber has designed or drawn Goods for the Client, then the copyright in those designs and drawings shall remain vested in the Plumber, and shall only be used by the Client at the Plumber’s discretion.
11.2 The Client warrants that all designs or instructions to the Plumber will not cause the Plumber to infringe any patent, registered design or trademark in the execution of the Client’s order.
12.DEFAULT & CONSEQUENCES OF DEFAULT
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
12.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Plumber from and against all the Plumber’s costs and disbursements including on a solicitor and own client basis and in addition all of the Plumber’s nominee’s costs of collection.
12.3 Without prejudice to any other remedies the Plumber may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Plumber may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Plumber will not be liable to the Client for any loss or damage the Client suffers because the Plumber exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the Goods or Services an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
12.5 In the event that:-
a) any money payable to the Plumber becomes overdue, or in the Plumber’s opinion the Client will be unable to meet its payments as they fall due; or
b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client, then without prejudice to the Plumber’s other remedies at law:
d) the Plumber shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies; and
e) all amounts owing to the Plumber shall, whether or not due for payment, immediately become payable in addition to the interest payable under clause 12.1 hereof.
13.1 It is the intention of the Plumber and agreed by the Client that property in the Goods shall not
(a) The Client has paid all amounts owing for the particular Goods, and
(b) The Client has met all other obligations due by the Client to the Plumber in respect of all contracts between the Plumber and the Client, and that where practicable the Goods shall be kept separate until the Plumber shall have received payment and all other obligations of the Client are met.
13.2 Receipt by the Plumber 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 recognized and until then the Plumber’s ownership of rights in respect of the Goods shall continue.
13.3 It is further agreed that:-
(a) Until such time as ownership of the Goods shall pass from the Plumber to the Client the Plumber may give notice in writing to the Client to return the Goods or any of them to the Plumber. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease.
(b) The Plumber shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(c) If the Client fails to return the Goods to the Plumber then the Plumber or the Plumber’s 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.
(d) The Client is only a bailee of the Goods and until such time as the Plumber has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for the Plumber.
(e) The Client shall not deal with the money of the Plumber in any way which may be adverse to the Plumber.
(f) The Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Plumber.
(g) The Plumber may require payment of the Price or the balance of the Price due together with any other amounts due from the Client to the Plumber arising out of these terms and conditions, and the Plumber may take any lawful steps to require payment of the amounts due and the Price.
(h) The Plumber can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client.
(i) Until such time that ownership in the Goods passes to the Client, if the Goods are so converted, the parties agree that the Plumber will be the owner of the end products.
14.SECURITY AND CHARGE
14.1 Despite anything to the contrary contained herein or any other rights which the Plumber may have howsoever:-
(a) Where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client 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 the Plumber or the Plumber’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Plumber (or the Plumber’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Plumber elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Plumber from and against all the Plumber’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Client and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Plumber or the Plumber’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Plumber and/or the Plumber’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Client and/or the Guarantor in any land, realty or asset in favor of the Plumber and in the Client’s and/or Guarantor’s name as may be necessary to secure the said Client’s and/or Guarantor’s obligations and indebtedness to the Plumber and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Plumber’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
15.1 The Plumber may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Plumber shall not be liable for any loss or damage whatever arising from such cancellation. At the Plumbers sole discretion the Client may cancel delivery of Goods. In the event that the Client cancels delivery of Goods the Client shall be liable for any costs incurred by the Plumber up to the time of cancellation.
16.PRIVACY ACT 1988
16.1 The Client and/or the Guarantor/s agree for the Plumber to obtain from a credit-reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Plumber.
16.2 The Client and/or the Guarantor/s agree that the Plumber may exchange information about Client and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:-
(a) To assess an application by Client;
(b) To notify other credit providers of a default by the Client;
(c) To exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and
(d) To assess the credit worthiness of Client and/or Guarantor/s.
16.3 The Client consents to the Plumber being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Client agrees that Personal Data provided may be used and retained by the Plumber for the following purposes and for other purposes as shall be agreed between the Client and Plumber or required by law from time to time:-
(a) provision of Services & Goods;
(b) marketing of Services and/or Goods by the Plumber, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services and Goods.
16.5 The Plumber may give, information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.UNPAID PLUMBER’S RIGHTS TO DISPOSE OF GOODS
17.1 In the event that:-
(a) the Plumber retains or regains possession or control of the Goods; and
(b) payment of the Price is due to the Plumber; and
(c) the Plumber has made demand in writing of the Client for payment of the Price in terms of this contract; and
(d) the Plumber has not received the Price of the Goods, then, whether the property in the Goods has passed to the Client or has remained with the Plumber, the Plumber may dispose of the Goods and may claim from the Client the loss to the Plumber on such disposal.
18.BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENTS ACT 1999
18.1 At the Plumbers sole discretion, if there are any disputes or claims for unpaid Goods and/or Services 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 effect 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.LIEN & STOPPAGE IN TRANSIT
19.1 Where the Plumber has not received or been tendered the whole of the price, or the payment has been dishonoured, the plumber shall have:-
(a) a lien on the goods;
(b) the right to retain them for the price while the plumber is in possession of them:
(c) a right of stopping the goods in transit whether or not delivery has been made or ownership has passed, and
(d) a right of resale,
(e) the foregoing right of disposal, provided that the lien of the plumber shall continue despite the commencement of proceedings or judgement for the price having been obtained.
20.BURIED OR UNSEEN SERVICES
20.1 The Client will indemnify the Plumber and keep the Plumber indemnified against any liability, loss, claim or proceedings of any kind (whether arising under statute or common law) arising from services which are buried or unseen being disturbed or damaged. The Plumber will not be liable for any repair work and any repair work required will be paid at the Clients expense Such liability, loss, claims or proceedings includes but is not limited to:-
a) Damage to the property, real or personal;
b) Death or personal injury; and
c) Consequential or economic loss of any kind.