TERMS OF TRADE
1.1 “H.E.” shall mean Hornsby Electric Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Hornsby Electric Pty Ltd.
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 H.E. 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 “Works” shall mean work undertaken by H.E. (and where the context so permits shall include any supply of Materials as hereinafter defined), as described on the invoices, quotation, work authorisation or any other forms as provided by H.E. to the Client and includes any advice or recommendations.
1.5 “Materials” shall mean materials:
(a) required to complete the Works; and/or
(b) supplied by H.E. to the Client (and where the context so permits shall include any supply of Works as hereinafter defined) and are as described on the invoices, quotation, order or any other forms as provided by H.E. to the Client.
1.6 “Price” shall mean the price payable for the Works as agreed between H.E. and the Client in accordance with clause 5 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 H.E. from the Client pertaining to the Works and/or Materials and/or the Client’s acceptance of Works undertaken and/or Materials supplied by H.E. 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 H.E.
3.4 The Client shall give H.E. 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 H.E. as a result of the Client’s failure to comply with this clause.
3.5 Works are undertaken and/or Materials are supplied by H.E. 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.
4.1 H.E. reserves the right to change the Price in the event of a variation to H.E.’s quotation. Any variation from the plan of scheduled Works or specifications, including but not limited to, any variation as a result of additional Works required due to hidden or unidentifiable difficulties that can only be ascertaining upon commencement of the Works, then the cost of any additional or altered work shall be borne by the Client and treated as variation and the Price adjusted accordingly.
4.2 Where additional Works are required as a result of pre-existing sub-standard / non-compliant / faulty work, substandard materials, or because of any material which is required to be replaced or removed to carry out the Works, then H.E. shall not be liable for any loss or damage suffered by the Client in relation to the Works where such loss or damage results from the state or condition of the Client’s existing building or structure and the effect of such state or condition on the Works, or the effect of the Works on the existing building or structure which could not reasonably have been foreseen by H.E. during the course of the Works.
4.3 The Client acknowledges that all Works are carried out during H.E.’s normal trading weekday Where the Client requests the performance of Works outside of these trading hours, then the Client shall be liable for all additional costs incurred by H.E.
5. Price and Payment
5.1 At H.E.’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by H.E. to the Client in respect of Works undertaken and/or Materials supplied; or
(b) H.E.’s quoted Price (subject to clause 4) which shall be binding upon H.E. provided that the Client shall accept H.E.’s quotation in writing within thirty (30) days.
5.2 At H.E.’s sole discretion:
(a) a non-refundable deposit may be required; and/or
(b) payment shall be due on completion of the Works; or
(c) payment shall be due prior to commencement of the Works; or
(d) payment for approved Clients shall be made by instalments in accordance with the “stages of completion” schedule or as agreed to between the Client and H.E.; or
(e)detailed payment claims may be submitted by H.E. at intervals not less than monthly for Works performed up to the end of each month. The value of Works so performed shall include the reasonable value of authorised variations and the value of Materials delivered to the site but not yet installed.
5.3 Time for payment for the Works and/or Materials 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.
5.4 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 (5.0%) of the Price), or by direct credit, or by any other method as agreed to between the Client and H.E.
5.5 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. 1 Subject to clause 2 it is H.E.’s responsibility to ensure that the Works start as soon as it is reasonably possible.
6.2 The Works commencement date will be put back and the duration of the Works extended by whatever time is reasonable in the event that H.E. claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond H.E.’s control including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for installation; or
(c) notify H.E. that the site is ready.
6.3 At H.E.’s sole discretion delivery of the Materials shall take place when the Client takes possession of the Materials at the Client’s nominated address (in the event that the Materials are delivered by H.E. or H.E.’s nominated carrier).
6.4 At H.E.’s sole discretion the costs of delivery are included in the Price.
6.5 The Client shall make all arrangements necessary to take delivery of the Materials whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Materials as arranged then H.E. shall be entitled to charge a reasonable fee for redelivery.
6.6 Delivery to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
6.7 E. may deliver by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.8 The failure of E. to deliver shall not entitle either party to treat this contract as repudiated.
6.9 E. shall not be liable for any loss or damage whatsoever due to failure by H.E. to deliver the Works and/or Materials (or any part of them) promptly or at all, where due to circumstances beyond the control of H.E.
7.1 If H.E. retains ownership of the Materials nonetheless, all risk for the Materials passes to the Client on delivery.
7.2 Where the Client expressly requests H.E. to deliver the Materials to an unattended location then such Materials shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all.
7.3 If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Client, H.E. is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by H.E. is sufficient evidence of H.E.’s rights to receive the insurance proceeds without the need for any person dealing with H.E. to make further enquiries.
8. Underground Locations
8.1 Prior to H.E. commencing the Works the Client must advise H.E. 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 H.E. will take all care to avoid damage to any underground services the Client agrees to indemnify H.E. 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 1.
9.1 H.E. and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid H.E. all amounts owing for the particular Materials; and
(b) the Client has met all other obligations due by the Client to H.E. in respect of all contracts between H.E. and the Client.
9.2 Receipt by H.E. 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 H.E.’s ownership or rights in respect of the Materials shall continue.
9.3 It is further agreed that:
(a) where practicable the Materials shall be kept separate and identifiable until H.E. shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Materials shall pass from H.E. to the Client H.E. may give notice in writing to the Client to return the Materials or any of them to H.E. Upon such notice the rights of the Client to obtain ownership or any other interest in the Materials shall cease; and
(c) H.E. shall have the right of stopping the Materials in transit whether or not delivery has been made; and
(d) if the Client fails to return the Materials to H.E. then H.E. or H.E.’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 Materials are situated and take possession of the Materials; and
(e) the Client is only a bailee of the Materials and until such time as H.E. has received payment in full for the Materials then the Client shall hold any proceeds from the sale or disposal of the Materials, up to and including the amount the Client owes to H.E. for the Materials, on trust for H.E.; and
(f) the Client shall not deal with the money of H.E. in any way which may be adverse to H.E.; and
(g) the Client shall not charge the Materials in any way nor grant nor otherwise give any interest in the Materials while they remain the property of H.E.; and
(h) H.E. can issue proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials may not have passed to the Client; and
(i) until such time that ownership in the Materials passes to the Client, if the Materials are converted into other products, the parties agree that H.E. will be the owner of the end products, unless they have become fixtures.
10. Defects, Errors and Omissions
10.1 The Client shall inspect the Works on completion (or Materials on delivery) and shall within seven (7) days (time being of the essence) notify H.E. of any alleged defect, error or omission, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford H.E. an opportunity to inspect the Works (Materials) within a reasonable time following such notification if the Client believes the Works (Materials) are defective in any If the Client shall fail to comply with these provisions the Works (Materials) shall be presumed to be free from any defect or damage. For defective Works (Materials), which H.E. has agreed in writing that the Client is entitled to reject, H.E.’s liability is limited to either (at H.E.’s discretion) replacing the Works (Materials) or rectifying the Works (repairing the Materials) except where the Client has acquired Works (Materials) 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 (Materials), rectification of the Works (repair of the Materials) or replacement of the Works (Materials).
10.2 At the sole discretion of H.E., Materials will not be accepted for return other than in accordance with 10.1 above.
11.1 H.E. may (at their sole discretion) accept the return of Materials for credit but this may incur a handling fee of up to thirty-five percent (35%) of the value of the returned Materials plus any freight costs. Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 1; and
(b) H.E. has agreed in writing to accept the return of the Materials; and
(c) the Materials are returned at the Client’s cost within seven (7) days of the delivery date; and
(d) H.E. will not be liable for Materials which have not been stored or used in a proper manner; and
(e) the Materials 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 reasonably possible in the circumstances.
12.1 For Materials not manufactured by H.E., the warranty shall be the current warranty provided by the manufacturer of the Materials. H.E. 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.
12.2 To the extent permitted by statute, no warranty is given by H.E. as to the quality or suitability of the Works for any purpose and any implied warranty is expressly excluded. H.E. shall not be responsible for any loss or damage to the Works, or caused by the Works, or any part thereof however arising.
13. Intellectual Property
13.1 Where H.E. has designed, drawn or written Works and/or Materials for the Client, then the copyright in those designs and drawings and documents shall remain vested in H.E., and shall only be used by the Client at H.E.’s discretion.
13.2 The Client warrants that all designs or instructions to H.E. will not cause H.E. to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify H.E. against any action taken by a third party against H.E. in respect of any such infringement.
13.3 Where H.E. has designed or drawn Works for the Client then the Client undertakes to acknowledge H.E.’s design or drawings in the event that images of the Works are utilised in advertising or marketing material by the Client. Further, the Client hereby authorises H.E. to utilise images of the Works designed or drawn by H.E. in advertising, marketing, or competition material by H.E.
14. Default and Consequences of Default
14.1 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 H.E.’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by H.E.
14.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify H.E. from and against all costs and disbursements incurred by H.E. in pursuing the debt including legal costs on a solicitor and own client basis and H.E.’s collection agency costs.
14.4 Without prejudice to any other remedies H.E. may have if at any time the Client is in breach of any obligation (including those relating to payment) H.E. may suspend or terminate the Works and/or the supply of Materials to the Client and any of its other obligations under the terms and conditions. H.E. will not be liable to the Client for any loss or damage the Client suffers because H.E. has exercised its rights under this clause.
14.5 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.
14.6 Without prejudice to H.E.’s other remedies at law H.E. shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to H.E. shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to H.E. becomes overdue, or in H.E.’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.
15. Security and Charge
15.1 Despite anything to the contrary contained herein or any other rights which H.E. 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 H.E. or H.E.’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 H.E. (or H.E.’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 H.E. elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify H.E. from and against all H.E.’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 H.E. or H.E.’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 1.
16.1 E. may cancel any contract to which these terms and conditions apply or cancel the Works and/or delivery of Materials at any time before the Works have commenced and/or Materials are delivered by giving written notice to the Client. On giving such notice H.E. shall repay to the Client any sums paid in respect of the Price. H.E. shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels the Works and/or delivery of Materials, then the Client shall be liable for any loss incurred by H.E. (including, but not limited to, any amounts owing for Works already undertaken and any loss of profits) up to the time of At H.E.’s sole discretion a call-out charge may be applicable where cancellation is only notified to H.E. upon arrival at the Client’s nominated site.
16.3 Cancellation of orders for Materials made to the Client’s specifications or non-stocklist items will definitely not be accepted, once the order has been processed.
17. Privacy Act 1988
17.1 The Client and/or the Guarantor/s agree for H.E. 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 H.E.
17.2 The Client and/or the Guarantor/s agree that H.E. 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.
17.3 The Client consents to H.E. being given a consumer credit report to collect overdue payment on commercial credit (Section 18K (1) (h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by H.E. for the following purposes and for other purposes as shall be agreed between the Client and H.E. or required by law from time to time:
(a) provision of Works and/or Materials; and/or
(b) marketing of Works and/or Materials by H.E., its agents or distributors in relation to the Works and/or Materials; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Works and/or Materials; 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 Works and/or Materials.
17.5 H.E. 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.
18. Unpaid H.E.’s Rights
18.1 Where the Client has left any item with H.E. for repair, modification, exchange or for H.E. to perform any other Service in relation to the item and H.E. has not received or been tendered the whole of the Price, or the payment has been dishonoured, H.E. shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while H.E. is in possession of the item;
(c) a right to sell the item
18.2 The lien of H.E. shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
19. Building and Construction Industry Security of Payments Act 1999
19.1 At H.E.’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 H.E. 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 H.E. of these terms and conditions.
20.4 In the event of any breach of this contract by H.E. the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Works and/or Materials.
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 H.E. nor to withhold payment of any invoice because part of that invoice is in dispute.
20.6 H.E. 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 H.E. 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 H.E. 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 events beyond the reasonable control of either
20.9 The failure by H.E. to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect H.E.’s right to subsequently enforce that provision.