TERMS AND CONDITIONS OF SUPPLY
These T&Cs, and no terms and conditions of the Customer, will apply to any order for and any supply of Services by the Supplier to the Customer.
2. Order for Services
2.1 Any Order by the Customer to the Supplier and/or any acceptance of any Services by the Customer will constitute agreement to these T&Cs by the Customer.
2.2 No Order by the Customer will be binding on the Supplier unless the Supplier accepts the Order.
2.3 If the Supplier accepts an Order, the parties will have created a binding Contract and the Supplier will supply the Services to the Customer, and the Customer will pay the Price to the Supplier in accordance with the terms of the Contract (which will include these T&Cs).
2.4 The Customer is not entitled to cancel any Order or Contract and must pay to the Supplier any costs associated with the Customer purporting to cancel any Order or Contract.
2.5 The Customer must provide to the Supplier all information, instructions, and facts relevant to the Services at the time the Customer requests any quotation from the Supplier and prior to providing any Services to the Supplier.
2.6 If at any time the Supplier considers that any information, instructions or facts provided by the Customer to the Supplier are not sufficient to enable the Supplier to supply the Services to the Customer in accordance with the Contract, the Customer must, at the Customer’s cost, provide such further information, documents or assistance as the Supplier considers reasonably necessary.
2.7 The Supplier will be entitled to rely on the accuracy of any information, instructions, reports, plans, specifications, and facts provided by the Customer.
2.8 If there are any errors in any information, instructionsor facts provided by the Customer to the Supplier, the Supplier will, in addition to the Supplier’s other rights under these T&Cs or at law, be entitled to vary the Price of the Services.
2.9 The Supplier may cancel any Contract at any time prior to delivery of the Services with no liability other than to repay any amount of the Price paid in advance of the cancellation.
3. Price and payment
3.1 Unless otherwise agreed by the Supplier in writing, and at the Supplier’s sole discretion, the Price will be either as indicated on any invoice provided by the Supplier to the Customer.
3.2 Time for payment for the Services being of the essence, the Price will be payable by the Customer within 14 days from date of invoice:
3.3 Unless otherwise agreed by the Supplier in writing, the Supplier may invoice the Customer for Services on the date the Supplier supplies the Services.
3.4 Unless otherwise stated by the Supplier in writing, the Price is exclusive of any delivery charges and exclusive of GST.
3.5 The Customer must not withhold, make deductions from, or set-off, payment of any money owed to the Supplier for any reason.
3.6 The Supplier may charge, in addition to the Price, any other fees, charges and surcharges that the Supplier notifies to the Customer from time to time.
3.7 If the Customer defaults in payment by the due date of any amount payable to the Supplier, then all money which would become payable by the Customer to the Supplier at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Supplier may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 2% for the period from the due date until the date of payment in full;
(b) charge the Customer for all expenses and costs (including without limitation all legal costs and expenses and mercantile agent’s commissions) incurred by the Supplier in taking whatever actions it deems appropriate to recover any sum due;
(c) cease or suspend supply of Services to the Customer without liability to the Customer or any third party for any loss or damage whether directly or consequentially;
(d) by written notice to the Customer, terminate any uncompleted contract with the Customer;
(e) enforce any security granted by the Customer to the Supplier in these T&Cs.
4. Security by the Customer and Personal Property Securities Act
4.1 In consideration of the Supplier agreeing to supply the Services, the Customer hereby charges all of its right, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, which are owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these T&Cs includingthe payment of monies owed to the Supplier.
4.2 The Customer hereby consents to the registration by the Supplier of a caveat against the title of any property owned by the Customer to protect the charge created in clause 4.1.
4.3 The Customer hereby irrevocably appoints the Supplier, the Supplier’s solicitors, each officer of the Supplier, each Receiver appointed by the Supplier and each of the Supplier’s assigns jointly and also severally to be the true and lawful attorney or attorneys of the Customer with full power and at the expense of the Customer and in the name of the Customer or in the name of the Supplier but for the sole use and benefit of the Supplier and without giving the Customer any notice whatsoever, from time to time to enter into and execute complete and amend all deeds, instruments, contracts, transfers, legal mortgages, agreements, notices, demands and writings as the Customer has covenanted or is otherwise required to do and to collect in, sue for and recover and deal with all book debts of the Customer and to do all such other acts, matters and things which under all or any of the covenants and agreements herein contained or implied ought to be done by the Customer or which the Supplier or a Receiver is authorised or empowered to do by these T&Cs, the securities referred to under this clause or by Statute.
5. Force Majeure
5.1 The Supplier will not be liable to the Customer for any failure to perform, or delay in performing, the Supplier’s obligations under these T&Cs if the failure or delay is due to any cause beyond the Supplier’s reasonable control and if any such failure or delay continues for a period of 14 days the Supplier may terminate any affected Contract.
6. Confidential Information and Intellectual Property
6.1 The Customer will not use, or disclose, any Confidential Information disclosed to the Customer.
6.2 All Intellectual Property Rights in all designs, drawings, technical information and documents created by the Supplier in relation to the Services will remain with the Supplier and will not be assigned to the Customer and no supply of Services to the Customer will grant to the Customer any Intellectual Property Rights in respect of the Services or such designs, drawings, technical information or documents.
6.3 If the Supplier supplies any designs, drawings, technical information or documents to the Customer as part of the Services, the Supplier grants the Customer a non-exclusive, non-transferrable, right to use the designs, drawings, technical information and documents strictly and only for the purposes of the Customer’s use of the Services.
6.4 The Customer warrants that the Supplier’s use of any designs, instructions or documents provided by the Customer to the Supplier will not infringe the Intellectual Property Rights of any other party.
7. Limitation of liability
7.1 The Customer must at all times confirm that the Services are in every way suitable to the expected use.
7.2 These T&Cs do not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Services or any contractual remedy for their failure.
7.3 If the Customer is a consumer within the meaning of Schedule 2 to the Competition and Consumer Act 2010 (Cth) and Schedule 2 thereto (known as Australian Consumer Law or ACL) nothing in these T&Cs restricts, limits or modifies the Customer’s rights or remedies against the Supplier for failure of a statutory guarantee under the ACL.
7.4 If clause 7.3 does not apply, the Supplier is not liable to the Customer in any way (whether under Statute, contract, tort, negligence or otherwise) arising under or in connection with the provision of the Services to the Customer or any third party.
7.5 The Supplier is not liable for any consequential loss or expense suffered by the Customeror any third party however caused, including but not limited to loss of profits, business, revenue, savings, opportunity, reputation, access to markets, publicity or goodwill or any such liability to the Customeror a third party, except to the extent of any liability imposed by the ACL.
7.6 The Customer acknowledges and agrees that:
(a) it has not relied on any service involving skill and judgment, or on any advice, recommendation, information, reports, tests or assistance provided by the Supplier in relation to the Services. Any advice, recommendations, information, reports, tests or assistance provided by the Supplier in relation to the Services supplied by it or their use or application is given in good faith, and is believed by the Supplier to be appropriate and reliable. However, as far as permitted by law, the Supplier is not liable for any loss or damage arising therefrom.
(b) it has not made known, either expressly or by implication, to the Supplier any purpose for which it requires the Services and it has the sole responsibility of satisfying itself that the Services are suitable for the use of the Customer;
(c) all written or verbal comments made by the Supplier or Supplier’s representatives are made on an “as is” basis without warranties of any kind either express or implied.
7.7 Nothing in these T&Cs is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
8. Release and Indemnity
11. 1 The Customer indemnifies the Supplier and each member of the Supplier’s Personnel from and against any Liability or Claim arising directly or indirectly in relation to:
(a) the accuracy of all information provided by the Customer to the Supplier in relation to the Services or any other matters;
(b) the Customer’s breach of these T&Cs or any Contract;
(c) the negligence or wilful misconduct of the Customer or any member of the Customer’s Personnel;
(d) the Supplier or any member of the Supplier’s Personnel delivering the Services in accordance with the Customer’s instructions;
(e) the Supplier or any member of the Supplier’s Personnel entering a premises;
(f) damage to the property of the Customer or any third party during any delivery of Services;
(g) the Services not being fit for any particular purpose;
(h) the Customer or any member of the Customer’s Personnel directly or indirectly causing any delay in the supply of any Services;
(i) the Supplier having to undertake any rework as a result of the actions or omissions of the Customer or any third party;
(j) the Customer or any member of the Customer’s Personnel refusing to accept any delivery of Services;
(k) the Customer or any member of the Customer’s Personnel purporting to cancel any Order or Contract; and
(l) any proceedings, claims and demands in relation to any secured property.
9.1 The Supplier may immediately terminate, or suspend the performance of, any Contract and the Customer must immediately pay any money owed to the Supplier if:
(a) the Customer breaches a term of these T&Cs or any Contract and does not remedy the breach within 7 days of receiving a notice from the Supplier requiring the Customer to do so;
(b) the Customer breaches a term of these T&Cs or any Contract which is not capable of remedy;
(c) there is any change in the Control of the Customer; or
(d) an Insolvency Event arises in relation to the Customer.
In these T&Cs:
“Approvals” means all approvals, authorisations, permits, consents, determinations and licences which are issued, or required to be issued, by any Authority to permit the full and proper performance of the Supplier’s obligations under these T&Cs;
“Authority” means any government or governmental, semi-governmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister, statutory corporation, instrumentality or entity;
“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
“Confidential Information” means information, whether in visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to the Supplier or any related entity of the Supplier including but not limited to any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter;
“Contract” means a contract formed as a result of the acceptance of an Order by the Supplier;
“Control” has the meaning set out in the Corporations Act;
“Corporations Act” means the Corporations Act 2001 (Cth);
“Customer” means the customer set out in any quotation, offer or other document provided by the Supplier (or, in the absence of such information, the customer who placed the Order);
“Insolvency Event” means any of the following, or any analogous, events:
(a) the Customer disposes of the whole or any part of the Customer’s assets, operations or business other than in the ordinary course of business;
(b) the Customer ceases, or threatens to cease, carrying on business;
(c) the Customer is unable to pay the Customer’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Customer’s assets, operations or business;
(e) any step is taken for the Customer to enter into any arrangement or compromise with, or assignment for the benefit of, the Customer’s creditors or any class of the Customer’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of the Customer’s assets, operations or business;
“Intellectual Property Rights” means any present or future rights conferred by statute, common law or equity in any part of the world in relation to any confidential information, copyright, trade marks, service marks, designs, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields;
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
“Order” means any written or verbal order by the Customer to the Supplier for Services;
“Personnel” means any employee, servant, contractor, subcontractor, agent, partner, director or officer of a party;
“PPSA” means Personal Property Securities Act 2009 (Cth);
“Price” means the price of the Services as nominated by the Supplier from time to time;
“Services” means the asbestos removal services;
“Supplier” means All Care Asbestos Removal Vic Pty Ltd (ACN625 756 541)and its related entities, successors and assigns; and
“T&Cs” means these Terms and Conditions of Supply.
11.1 The parties agree:
(a) no Contract will create any partnership, joint venture, agency or relationship of employment between the parties;
(b) these T&Cs or any Contract may only be amended with the Supplier’s express written agreement;
(c) any waiver by the Supplier must be express and in writing;
(d) the Supplier’s rights under these T&Cs or any Contract do not exclude any other rights of the Supplier;
(e) no Contract will be a sale by sample;
(f) in the event of any dispute, the Supplier’s records will be conclusive evidence;
(g) the actions of any person claiming to have the Customer’s authority will bind the Customer to the extent permitted by law;
(h) if any provision of these T&Cs or any Contract is unenforceable, the provision will be severed and the remaining provisions will continue to apply;
(i) the Customer must immediately provide written notice to the Supplier if there is any change in the Control of the Customer;
(j) the Supplier may assign any rights or benefits under any Contract or these T&Cs or any Contract to any third party;
(k) the Customer may only assign any rights or benefits under any Contract or these T&Cs or any Contract with the Supplier’s prior written consent; and
(l) these T&Cs and any Contract will be governed by the laws of, and the parties submit to the jurisdiction of the courts of, the state in which the Services are delivered.
11.2 In these T&Cs:
(a) the headings will not affect interpretation;
(b) the singular includes the plural and vice versa;
(c) any other grammatical form of a word or expression defined in these T&Cs has a corresponding meaning;
(d) a reference to a document includes the document as novated, altered, supplemented or replaced;
(e) a reference to a party includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;
(f) a reference to a person includes a natural person, body corporate, partnership, trust, association or any other entity;
(g) a reference to a statute, ordinance, code or law includes regulations, rules and other instruments under the statute, ordinance, code or law and any consolidations, amendments, re-enactments or replacements;
(h) a word or expression defined in the Corporations Act has the meaning given to the word or expression in the Corporations Act;
(i) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;
(j) any agreement, representation, warranty or indemnity by two or more parties binds those parties jointly and severally;
(k) any undertaking by a party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;
(l) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these T&Cs; and
(m) if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day.
Signed for and on behalf of