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terms of trade
Kim Kelly Plastering Co. – Terms & Conditions of Trade
1.1 “KKP” shall mean Kim Kelly Plastering Co. its successors and assigns or any person acting on behalf of and with the authority of Kim Kelly Plastering Co.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by KKP to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by KKP to the Client (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 KKP to the Client.
1.5 “Services” shall mean all Services supplied by KKP to the Client and includes any advice or recommendations (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 KKP and the Client 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, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by KKP from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by KKP shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of KKP.
3.4 The Client shall give KKP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any 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). The Client shall be liable for any loss incurred by KKP as a result of the Client’s failure to comply with this clause.
3.5 Goods are supplied by KKP only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’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 KKP’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by KKP to the Client in respect of Goods supplied; or
(b) KKP’s quoted Price (subject to clause 4.2) which shall be binding upon KKP provided that the Client shall accept KKP’s quotation in writing within thirty (30) days.
4.2 KKP reserves the right to change the Price in the event of a variation to KKP’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of increases to KKP in the cost of materials and labour) will be charged for on the basis of KKP’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 KKP’s sole discretion a non-refundable deposit may be required.
4.4 At KKP’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Clients shall be made by instalments in accordance with KKP’s payment schedule.
4.5 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 then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to five percent (5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and KKP.
4.7 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.
5. Delivery Of Goods
5.1 At KKP’s sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by KKP or KKP’s nominated carrier).
5.2 At KKP’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Client’s account.
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 failure of KKP to deliver shall not entitle either party to treat this contract as repudiated.
5.5 KKP shall not be liable for any loss or damage whatsoever due to failure by KKP to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of KKP.
6.1 If KKP retains ownership of 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 following delivery but prior to ownership passing to the Client, KKP is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by KKP is sufficient evidence of KKP’s rights to receive the insurance proceeds without the need for any person dealing with KKP to make further enquiries.
6.3 Where the Client expressly requests KKP to leave Goods outside KKP’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
6.4 The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. KKP will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
7. Client Responsibilities
7.1 It is the intention of KKP and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding to enable the works to be undertaken (where in KKP’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.
7.2 The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the works and agrees that KKP shall not be liable for any damage caused to those items through the Clients failure to comply with this clause.
7.3 The Client shall ensure that KKP has clear and free access to the worksite (during all hours allowed by relevant statutory authorities) in order for KKP to complete the works.
8. Underground Locations
8.1 Prior to KKP commencing any work the Client must advise KKP of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client 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 KKP will take all care to avoid damage to any underground services the Client agrees to indemnify KKP 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 KKP and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid KKP all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to KKP in respect of all contracts between KKP and the Client.
9.2 Receipt by KKP 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 KKP’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 KKP shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from KKP to the Client KKP may give notice in writing to the Client to return the Goods or any of them to KKP. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) KKP shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to KKP then KKP or KKP’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; and
(e) the Client is only a bailee of the Goods and until such time as KKP has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to KKP for the Goods, on trust for KKP; and
(f) the Client shall not deal with the money of KKP in any way which may be adverse to KKP; and
(g) 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 KKP; and
(h) KKP can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that KKP will be the owner of the end products.
10.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify KKP of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford KKP 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 presumed to be free from any defect or damage. For defective Goods, which KKP has agreed in writing that the Client is entitled to reject, KKP’s liability is limited to either (at KKP’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods 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 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 For Goods not manufactured by KKP, the warranty shall be the current warranty provided by the manufacturer of the Goods. KKP 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.
11.2 To the extent permitted by statute, no warranty is given by KKP as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. KKP shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
12. Intellectual Property
12.1 Where KKP has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in KKP, and shall only be used by the Client at KKP’s discretion.
12.2 The Client warrants that all designs or instructions to KKP will not cause KKP to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify KKP against any action taken by a third party against KKP in respect of any such infringement.
12.3 The Client hereby authorises KKP to utilise images of the Goods designed or drawn by KKP in advertising, marketing, or competition material by KKP.
13. Default & Consequences of Default
13.1 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 one half percent (2.5%) per calendar month (and at KKP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by KKP.
13.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify KKP from and against all costs and disbursements incurred by KKP in pursuing the debt including legal costs on a solicitor and own client basis and KKP’s collection agency costs.
13.4 Without prejudice to any other remedies KKP may have, if at any time the Client is in breach of any obligation (including those relating to payment), KKP may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. KKP will not be liable to the Client for any loss or damage the Client suffers because KKP has exercised its rights under this clause.
13.5 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.
13.6 Without prejudice to KKP’s other remedies at law KKP shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to KKP shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to KKP becomes overdue, or in KKP’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.
14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which KKP 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 KKP or KKP’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that KKP (or KKP’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 KKP elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify KKP from and against all KKP’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint KKP or KKP’s nominee as the Client’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. Compliance with Laws
15.1 The Client and KKP 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.
15.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the works.
15.3 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
16. Dispute Resolution
16.1 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.
17.1 KKP 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 Client. On giving such notice KKP shall repay to the Client any sums paid in respect of the Price. KKP shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by KKP (including, but not limited to, any loss of profits) up to the time of cancellation.
17.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
18. Privacy Act 1988
18.1 The Client and/or the Guarantor/s agree for KKP 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 KKP.
18.2 The Client and/or the Guarantor/s agree that KKP may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(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/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
18.3 The Client consents to KKP being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
18.4 The Client agrees that personal credit information provided may be used and retained by KKP for the following purposes and for other purposes as shall be agreed between the Client and KKP or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by KKP, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’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 Client; and/or
(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 Goods.
18.5 KKP 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.
19. Building and Construction Industry Security of Payments Act 1999
19.1 At KKP’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.
19.2 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.
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 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.
20.3 KKP shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by KKP of these terms and conditions.
20.4 In the event of any breach of this contract by KKP the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
20.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by KKP nor to withhold payment of any invoice because part of that invoice is in dispute.
20.6 KKP may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.7 The Client agrees that KKP 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 KKP notifies the Client of such change.
20.8 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.
20.9 The failure by KKP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect KKP’s right to subsequently enforce that provision.
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