- "Agent" means PREH Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of PREH Pty Ltd.
- "Client" means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
- "Goods" means all Goods or Services supplied by the Agent to the Client at the Client's request from time to time (where the context so permits the terms 'Goods' or 'Services' shall be interchangeable for the other).
- "Price" means the Price payable (plus any GST where applicable) for the Goods as agreed between the Agent and the Client in accordance with clause 5
- "GST" means Goods and Services Tax (GST) as defined within the "A New Tax System (Goods and Services Tax) Act 1999".
- The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
- These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Agent.
3. Electronic Transactions Act 2001
- Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 (insert applicable section) of the Electronic Transactions Act 2001 (insert year) or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
- The Client shall give the Agent not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client's details (including but not limited to, changes in the Client's name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Agent as a result of the Client's failure to comply with this clause.
5. Price and Payment
- At the Agent's sole discretion, the Price shall be either:
- The Agent reserves the right to change the Price:
- The Agent reserves the right to change the Price if a variation to the Agent's quotation is requested. Any variation from the plan of scheduled services or specifications (including, but not limited to, any variation as a result of additional services required due to unforeseen circumstances such as poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed or as a result of any increase to PREH in the cost of goods and labour).
- Variations will be charged for on the basis of the Agent's quotation, and will be detailed in writing, and shown as variations on the Agent's invoice. The Client shall be required to respond to any variation submitted by the Agent within ten (10) working days. Failure to do so will entitle the Agent to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
- At the Agent's sole discretion, a deposit may be required.
- Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and the Agent.
- 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 the Agent nor to withhold payment of any invoice because part of that invoice is in dispute.
- Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Agent an amount equal to any GST the Agent must pay for any supply by the Agent under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods
- Delivery ("Delivery") of the Goods is taken to occur at the time that:
- At the Agent's sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
- Subject to clause 6.5 it is the Agent's responsibility to ensure that the Services start as soon as it is reasonably possible.
- Any time specified by the Agent for delivery of the Goods is an estimate only and the Agent will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Agent is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then the Agent shall be entitled to charge a reasonable fee for redelivery and/or storage.
- The Client shall ensure that Agent has clear and free access to the work site at all times to enable them to undertake the services. Agent shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Agent.
8. Underground Locations
- Prior to Agent commencing any work the Client must advise Agent 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.
- Whilst Agent will take all care to avoid damage to any underground services the Client agrees to indemnify Agent 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 2.
- Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
- If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Agent is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Agent is sufficient evidence of the Agent's rights to receive the insurance proceeds without the need for any person dealing with the Agent to make further enquiries.
- If the Client requests the Agent to leave Goods outside the Agent'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.
- Where the Client is to supply the Agent with any design specifications (including, but not limited to CAD drawings) the Client shall be responsible for providing accurate data. The Agent shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Client.
- All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Act, Regulations and Codes of Practice. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
- The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or dangerous access to roofing), the Agent reasonably forms the opinion that the Client's premises are not safe for the installation of Goods to proceed then the Agent shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 5 above) until the Agent is satisfied that it is safe for the installation to proceed.
- Where the Client has supplied goods for the Agent to complete the Services, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the goods. The Agent shall not be responsible for any defects in the goods, any loss or damage to the Services (or any part thereof), howsoever arising from the use of goods supplied by the Client.
- The Client acknowledges that the Agent is only responsible for parts that are replaced by the Agent, and in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify the Agent against any loss or damage to the Services, or caused by the Goods, or any part thereof howsoever arising.
- The Client acknowledges and agree that where the Agent has performed temporary repairs that:
- The Client acknowledges that Goods supplied may:
10. Care of Materials
- The Agent may at its discretion notify the Client that it requires to store at the work site materials, fittings and appliances, or plant and tools required for the Services, in which event the Client shall supply the Agent a safe area for storage and shall take all reasonable efforts to protect all items so stored from possible destruction, theft or damage. In the event that any such items are destroyed, stolen or damaged then the cost of repair or replacement shall be the Client's responsibility.
11. Accuracy of Client's Plans and Measurements
- The Agent shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, the Agent accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
12. Compliance with Laws
- The Client and the Agent 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.
- The Agent and the Client agree that ownership of the Goods shall not pass until:
- It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 1:
- The Client holds the benefit of the Client's insurance of the Goods on trust for the Agent and must pay to the Agent the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
- The Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Agent and must pay or deliver the proceeds to the Agent on demand.
- The Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Agent and must sell, dispose of or return the resulting product to the Agent as it so directs.
- The Client irrevocably authorises the Agent to enter any premises where the Agent believes the Goods are kept and recover possession of the Goods.
- The Agent may recover possession of any Goods in transit whether or not delivery has occurred.
- The Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Agent.
- The Agent may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
14. Personal Property Securities Act 2009 ("PPSA")
- In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
- Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) - being a monetary obligation of the Client to the Agent for Services - that have previously been supplied and that will be supplied in the future by the Agent to the Client.
- The Client undertakes to:
- The Agent and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
- The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
- The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
- Unless otherwise agreed to in writing by the Agent, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
- The Client must unconditionally ratify any actions taken by the Agent under clauses 3 to 14.5.
15. Security and Charge
- In consideration of the Agent agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
- The Client indemnifies the Agent from and against all the Agent's costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Agent's rights under this clause.
- The Client irrevocably appoints the Agent and each director of the Agent as the Client's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client's behalf.
16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
- The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify the Agent in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Agent to inspect the Goods.
- Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
- The Agent acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
- Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Agent makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Agent's liability in respect of these warranties is limited to the fullest extent permitted by law.
- If the Client is a consumer within the meaning of the CCA, the Agent's liability is limited to the extent permitted by section 64A of Schedule 2.
- If the Agent is required to replace the Goods under this clause or the CCA, but is unable to do so, the Agent may refund any money the Client has paid for the Goods.
- Notwithstanding clauses 1 to 16.8 but subject to the CCA, the Agent shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
- Notwithstanding anything contained in this clause if the Agent is required by a law to accept a return then the Agent will only accept a return on the conditions imposed by that law.
17. Intellectual Property
- Where the Agent has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Agent. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Agent.
- The Client warrants that all designs, specifications or instructions given to the Agent will not cause the Agent to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify the Agent against any action taken by a third party against the Agent in respect of any such infringement.
- The Client agrees that the Agent may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Agent has created for the Client.
18. Default and Consequences of Default
- 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 the Agent's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- If the Client owes the Agent any money the Client shall indemnify the Agent from and against all costs and disbursements incurred by the Agent in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Agent's contract default fee, and bank dishonour fees).
- Further to any other rights or remedies the Agent may have under this contract, if a Client has made payment to the Agent, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Agent under this clause 3 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client's obligations under this agreement.
- Without prejudice to the Agent's other remedies at law the Agent shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Agent shall, whether or not due for payment, become immediately payable if:
- The Agent 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 the Agent shall repay to the Client any money paid by the Client for the Goods. The Agent shall not be liable for any loss or damage whatsoever arising from such cancellation.
- In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Agent as a direct result of the cancellation (including, but not limited to, any loss of profits).
20. Privacy Act 1988
- The Client agrees for the Agent to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Agent.
- The Client agrees that the Agent may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
- The Client agrees that personal credit information provided may be used and retained by the Agent for the following purposes (and for other agreed purposes or required by):
- The Agent may give information about the Client to a CRB for the following purposes:
- The Client shall have the right to request (by e-mail) from the Agent:
- The Client can make a privacy complaint by contacting the Agent via e-mail. The Agent will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au.
21. Unpaid Seller's Rights
- Where the Client has left any item with the Agent for repair, modification, exchange or for the Agent to perform any other service in relation to the item and the Agent has not received or been tendered the whole of any monies owing to it by the Client, the Agent shall have, until all monies owing to the Agent are paid:
- The lien of the Agent shall continue despite the commencement of proceedings, or judgment for any monies owing to the Agent having been obtained against the Client.
22. Service of Notices
- Any written notice given under this contract shall be deemed to have been given and received:
23. Electricians Queensland
- All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations 2002. All of the cabling work will comply with the relevant Australian Communication Industry Wiring Rules technical standard.
24. Building and Construction Industry Payments Act 2004
- At the Agent'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 Payments Act 2004 may apply.
- Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
- The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party's right to subsequently enforce that provision. 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.
- Subject to clause 16 the Agent 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 the Agent of these terms and conditions (alternatively the Agent's liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
- Neither party shall assign or sub-contract all or any part of their rights and obligations under this agreement without the written consent of the other party.
- The Client agrees that the Agent may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Agent to provide Goods to the Client.
- 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.
- Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.