Terms and Conditions
1.1 “Contractor” shall mean Sydney Metropolitan Plumbing Services its successors assigns or any person acting on behalf of and with the authority of Sydney Metropolitan Plumbing Services.
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 the Contactor to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Good supplied by the Contactor to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Contractor to the Customer.
1.5 “Services” shall mean all Services supplied by the Contractor to the Customer and includes any advice or recommendation (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between the Contactor and Customer in accordance with clause 5 of this contact.
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, except to the extent permitted by those Acts where applicable.
3. Application of these term and conditions to consumers
3.1 Clause 10 (Defects), and clause 11 (Warranty) shall NOT apply to the Customer where the Customer is purchasing Goods or Services not for resale or hire where the Price of the Goods or Services does not exceed $40,000, or where the Price of Goods or Services does not exceed $40,000 and are of a kind ordinarily acquired for personal, domestic or household use or consumption, or where the Customer is in any other way a consumer within the meaning of the TPA or the FTA of the relevant state or territories of Australia.
4.1 Any instructions received by the Contractor from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Contractor shall constitute acceptance of the terms and conditions contained herein.
4.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and servery liable for all payments of the Price.
4.3 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 the Contactor.
4.4 The Customer shall give the Contractor no 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 the Contractor as a result of the Customer’s failure to comply with this clause.
5. Price And Payment
5.1 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 Goods supplies; or
(b) the Contractor’s quotes price (subject to clause 5.2) which shall be binding upon the Contactor provided that the Customer shall accept the Contractor’s quotation in writing within thirty (30) days.
5.2 The Contractor reserves all right to change the Price in the event of a variation to the Contractor’s quotation.
5.3 At the Contractors sole discretion a deposit may be required.
5.4 The Seller may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed.
5.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated than payment shall be due seven (7) days following the date of invoice.
5.6 Payment will be made by cash, or by cheque, or by MasterCard, or by Visa or by American Express, or by any other method as agreed to between the Customer and the Contractor.
5.7 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.
6. Delivery Of Goods
6.1 At the Contactor’s sole discretion delivery of the Goods shall take place when the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Contactor of the Contactor’s nominated carrier).
6.2 At the Contractor’s sole discretion the costs of delivery are included in the Price.
6.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged the Contractor shall be entitled to charge reasonable fee for redelivery.
6.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
6.5 The Contractor may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.6 The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated.
6.7 The Contactor to deliver shall not be liable for any loss or damage whatever due to the Contractor to deliver the Goods (or any of them) promptly or at all due to circumstances beyond the control of the Contactor.
7.1 If the Contractor retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Contractor is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Contractor is sufficient evidence of the Contractor’s rights to receive the insurance proceeds without the need of any person dealing with the Contractor to make further enquiries.
7.3 The Customer acknowledges and agrees that the presence of plant/tree root growth and/or blockages generally indicates damaged pipes. Accordingly the Customer agrees that these pipes cannot be fixed by simply removing plant/tree root growth or cleaning the drain, therefore no warranty is provided against this situation arising again in future and in respect of any work carried out in relation hereto.
7.4 In the event that any of the Contractor’s equipment becomes lodged in the Customer’s faulty drain the Customer will be liable for all costs incurred by the Contractor in retrieving and/or repairing the equipment
8. Underground Locations
8.1 Prior to the Contractor commencing any work the Customer must advise the Contractor of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, plumbing services, sewer connections, sewer sludge mains, water mains, irrigation pipes, Telstra cables, fibre optic cables, oil plumbing mains, and any other services that may be on site.
8.2 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 8.1.
9.1 The Contractor and Customer agree that the ownership of the Goods shall not pass until:
(a) the Customer has paid the Contractor all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to the Contractor in respect of all contracts between the Contractor and the Customer.
9.2 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 and until the Contractor’s ownership or rights in respect of the Goods shall continue.
9.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Contractor shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from the Contractor to the Customer the Contractor may give notice in writing to the Customer to return the Goods or any other of them to the Contractor . Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Contractor shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to the Contactor then the Contractor or the Contactor’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as the Contractor has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Contractor; and
(f) the Customer shall not deal with the money of the Contractor in any way which may be averse to the Contactor; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain in the property of the Contactor; and
(h) the Contractor can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Contactor will be the owner of the end products.
10.1 The Customer shall inspect the Goods on delivery and shall within three (3) months of delivery (time being of the essence) notify the Contactor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Contractor an opportunity to inspect to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free of any defect or damage. For defective Goods, which the Contactor has agreed in writing that the Customer is entitled to reject, the Contactor’s liability is limited to either (at the Contractor’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWith) 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 Goods, or repair of the Goods, or replacement of the Goods.
10.2 Goods will not be accepted for return other than in accordance with 10.1 above.
11.1 Subject to the conditions of warranty set out in clause 11.2 the Contactor warrants that if any defect in any workmanship of the Contractor becomes apparent and is reported to the Contactor within twelve (12) months of the date of delivery (time being of the essence) the Contractor will either (at the Contactor’s sole discretion) replace or remedy the workmanship.
11.2 The conditions applicable to the warranty given by clause 11.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Contactor; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and the Contractor shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Contractor’s consent.
(c) The warranty shall not cover consumables e.g. washers etc.
(d) In respect of all claims the Contactor shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in property assessing the Customer’s claim.
11.3 For Goods not manufactured by the Contactor, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Contactor 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 Goods.
12. Intellectual Property
12.1 Where the Contactor has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in the Contractor, and shall only be used by the Customer at the Contractor’s discretion.
12.2 The Customer warrants that all designs or instructions to the Contactor 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 by a third party against the Contactor in respect of any such infringement.
13. Default & Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when the payment becomes due, until the date of payment at the rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
13.2 If the customer defaults in payment of any invoice when due, the Customer shall indemnify the Contractor from and against all costs and disbursements incurred by the Contactor in pursuing the debt including legal costs on a solicitor and own client basis and the Contractor’s collection agency costs.
13.3 Without prejudice to any other remedies the Contactor may have, if at any time the Customer is in breach of any obligation (including those relating to payment); the Contractor may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. 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.
13.4 If any account remains overdue after thirty (30) days than the amount of the greater of twenty dollars ($20.00) or ten present (10.00%) 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.
13.5 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 in the event that:
(a) any money payable to the Contractor becomes overdue, or in the Contractor’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 purposes 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.
14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which the Contractor 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 change all of their joint and/or several interest on the land, realty or any other asset to the Contractor (or the Contractor’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 the Contractor elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or the Guarantor shall indemnify the Contractor from and against all the Contractor’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 the Contractor or the Contractor’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 14.1.
15.1 The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving notice such notice the Contractor shall repay to the Customer any sums paid in respect of the Price. The Contactor shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Contractor (including, but not limited to, any loss of profits) up to the time of cancellation.
16. Privacy Act 1988
16.1 The Customer and/or the Guarantor/s agree for the Contractor to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the customer.
16.2 The Customer and/or the Guarantor/s agree that the Contractor may exchange information about the Customer and the Guarantor/s 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 asses an application by 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 credit worthiness of Customer and/or Guarantor/s.
16.3 The Customer consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The customer agrees that personal credit information provided may be used and retained by the Contractor for the following purposes as shall be agreed between the Customer and Contractor or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by the Customer, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; 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 Goods.
16.5 The Contractor 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; and/or
(b) allow the credit reporting agency to create a or maintain a credit information file containing information about the Customer.
17. Building and Construction Industry Security of Payments Act 1999
17.1 At the Contractor’s 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.
17.2 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.
18.1 If any 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.
18.2 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 courts of New South Wales.
18.3 The Contractor shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of breach by the Contractor of these terms and conditions.
18.4 In the event of any breach of this contract by the Contractor the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of Goods.
18.5 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.
18.6 The Contractor may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.7 The Customer agrees that the Contractor 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 the Contractor notifies the Customer of such Change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
18.9 The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’s right to subsequently enforce that provision.