Terms and conditions
1. Definitions
1.1Accord Plumbers means its successors and assigns or any person acting on behalf of and with the authority of Accord Plumbing & Gas.
1.2“Client” means the person/s ordering the Works 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.
1.3“Works” means all Works or Materials supplied by Accord Plumbers to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.4“Price” means the Price payable for the Works as agreed between Accord Plumbers and the Client in accordance with clause 5 below.
2. Acceptance
2.1The 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 any Works.
2.2These terms and conditions may only be amended with Accord Plumbers’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Accord Plumbers.
2.3The Client shall give Accord Plumbers 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 Accord Plumbers because of the Client’s failure to comply with this clause.
3. Change in Control
3.1The Client shall give Accord Plumbers 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 Accord Plumbers because of the Client’s failure to comply with this clause.
4. Variations
4.1In the event that the Client requests a variation, Accord Plumbers will give the Client a written variation document detailing the work, the Price, the estimated time to undertake the variation, and the likely delay, if any and require written acceptance of the variation before commencing work on the variation.
4.2In the event that Accord Plumbers requests a variation, Accord Plumbers will state the reason for the variation in writing and Accord Plumbers requires written acceptance of the variation before commencing work on the variation.
4.3In the event of unforeseeable problems with the site which are only revealed when undertaking the Works, the Works, Accord Plumbers may carry out any Works required to fix any such problem if Accord Plumbers considers it necessary for satisfactory and safe completion of the Works. Any additional Work necessary due to unforeseen problems is to be treated as a variation. However, if the Price is not agreed upon then the Client will be charged Accord Plumbers’ actual cost-plus twenty percent (20%) for the Works.
5. Price and Payment
5.1At Accord Plumbers’ sole discretion, the Price shall be either:
(a)as indicated on invoices provided by Accord Plumbers to the Client in respect of Works performed or Materials supplied; or
(b)Accord Plumbers’ quoted Price (subject to clause 5.2) which shall be binding upon Accord Plumbers provided that the Client shall accept Accord Plumbers’ quotation in writing within thirty (30) days.
5.2Accord Plumbers reserves the right to change the Price:
(a)if a variation to the Materials which are to supplied is requested; or
(b)if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c)where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, limitations accessing the site, poor weather conditions, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring in walls etc.) which are only discovered on commencement of the Works; or
(d)in the event of increases to Accord Plumbers in the cost of labour or materials which are beyond Accord Plumbers’ control.
5.3At Accord Plumbers’ sole discretion, a deposit may be required.
5.4Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Accord Plumbers, which may be:
(a)before completion of the Works; or
(b)on completion of the Works; or
(c)the date which is thirty (30) days following the date of any invoice given to the Client by Accord Plumbers.
(d)by way of progress payments in accordance with Accord Plumbers’ specified progress payment schedule. Such progress payment claims may include the reasonable value of authorized variations and the value of any Materials delivered to the site but not yet installed; or
(e)the date specified on any invoice or other form as being the date for payment; or
(f)failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Accord Plumbers.
5.5Accord Plumbers may submit a detailed payment claim at intervals not less than thirty (30) days for Works performed up to the end of each month. The value of Works so performed shall include the value of authorized variations, and the value of Materials delivered to the site but not yet installed.
5.6Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and Accord Plumbers.
5.7Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Accord Plumbers an amount equal to any GST Accord Plumbers must pay for any supply by Accord Plumbers under this or any other agreement for the sale of the Materials. The Client must pay GST, without deduction or set off 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 expressly included in the Price.
6. Delivery of the Works
6.1Delivery (“Delivery”) of the Materials is taken to occur at the time that:
(a)the Client or the Client’s nominated carrier takes possession of the Materials at Accord Plumbers’ address; or
6.2Accord Plumbers (or Accord Plumbers’ nominated carrier) delivers the Materials to the Client’s nominated address even if the Client is not present at the address. Subject to clause 6.3 it is Accord Plumbers’ responsibility to ensure that the Works start as soon as it is reasonably possible.
6.3The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Accord Plumbers claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Accord Plumbers’ control, including but not limited to any failure by the Client to:
(a)make a selection; or
(b)have the site ready for the Works; or
(c)notify Accord Plumbers that the site is ready.
6.4The Client must take delivery by receipt or collection 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 Accord Plumbers shall be entitled to charge a reasonable fee for delivery and/or storage.
6.5Accord Plumbers may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.6Any time or date given by Accord Plumbers to the Client is an estimate only. Accord Plumbers shall not be liable for any loss or damage whatsoever due to failure by Accord Plumbers to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of Accord Plumbers, or for reasons caused by the Client.
6.7In the event of a delay to the Works by virtue of clause 6.6 above resulting in Accord Plumbers incurring additional costs or expenses, then the Client shall reimburse Accord Plumbers of such costs and expenses in full upon receiving an invoice from Accord Plumbers.
7. Risk
7.1If Accord Plumbers retains ownership of the Materials under clause 14 then.
(a)Whereas Accord Plumbers supply Materials only, all risk for the Materials shall immediately be pass to the Client for delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either.
(i)the Client or the Client’s nominated carrier takes possession of the Materials at Accord Plumbers’ address; or
(ii)the Materials are delivered by Accord Plumbers or Accord Plumbers’ nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
(b)where Accord Plumbers is to both supply and install Materials, then Accord Plumbers shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
7.2Notwithstanding the provisions of clause 7.1 if the Client specifically requests Accord Plumbers to leave Materials outside Accord Plumbers’ premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client, and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.
7.3The Client acknowledges that the presence of plant or tree root growth and/or other blockages may indicate damaged pipe work and therefore where Accord Plumbers is requested to merely clear such blockages, Accord Plumbers can offer no guarantee against reoccurrence or further damage. advise the Client of the same and shall provide the Client with an estimate for the full repair of the damaged pipe work.
8. Suspension of the Works
8.1Accord Plumbers may cease or temporarily suspend the Works on the occurrence of one or more of the following events:
(a)the Client fails to pay any invoice given to the Client by Accord Plumbers within the stipulated timeframe; or
(b)Accord Plumbers are not granted access to the site where the Works would be carried out.
(c)the Client’s failure to supply electricity or water which may be required to carry out the Works by Accord Plumbers.
(d)the Client breaches its obligations under these terms and conditions.
(e)the Client fails to remedy any breaches of its obligations under these terms and conditions, whether demand has been made by Accord Plumbers; or
(f)the Client becomes unable to pay its debts to other creditors generally as they fall due, enters into receivership, administration, liquidation, or has had winding up proceedings made against it.
8.2In the event of Accord Plumbers suspending the Works, then Accord Plumbers:
(a)shall be entitled to payment of the Works carried out, including any Materials supplied, up to the day prior to the suspension.
(b)may remove all unfixed materials (if unpaid by the Client) from the site without any compensation to the Client; and
(c)remove any machinery and equipment from the site.
8.3The Client shall indemnify Accord Plumbers from any and all liabilities, losses, costs, damages, charges, legal fees and disbursements, fines, penalties, expenses, actions, suits, proceedings and demands, all of whatever kind of nature which Accord Plumbers may suffer or incur or be liable for, either directly or indirectly, because of the Client’s failure to pay any invoice given by Accord Plumbers.
8.4The Client agrees that it will not hold Accord Plumbers liable for any and all liabilities, losses, costs, damages, charges, legal fees and disbursements, fines, penalties, expenses, actions, suits, proceedings and demands, all of whatever kind of nature which the Client may suffer or incur or be liable for, either directly or indirectly, by reason of Accord Plumbers’ suspension of the Works under clause 8.
8.5The Client agrees to pay all reasonable costs, charges, expenses, and disbursements incurred by Accord Plumbers in relation to and arising from Accord Plumbers resuming or continuing the Works at the site, including mobility costs.
9. Client’s Responsibilities
9.1The Client acknowledges that in the event asbestos, or any other toxic substances are discovered at the Worksite that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify Accord Plumbers against any costs incurred by Accord Plumbers as a consequence of such discovery. Under no circumstances will Accord Plumbers handle removal of asbestos product.
9.2The Client acknowledges that it is their responsibility to ensure that all Materials, plant or equipment which Accord Plumbers is required to install (or to connect any of its Materials to) are of the correct type, size, rating, standard, quality, colour and finish, conform with all relevant Australian standards and local statutory requirements, and are as specified in the specifications, drawings and plans upon which Accord Plumbers based the quotation on and therefore, the Client agrees to indemnify Accord Plumbers against any costs incurred by Accord Plumbers in rectifying such errors if required.
9.3Accord Plumbers is not responsible for the removal of rubbish from or clean-up of the building/construction site/s. This is the responsibility of the Client or the Client’s agent.
10. Dimensions, Plans and Specifications
10.1All customary building industry tolerances shall apply to the dimensions and measurements of the Materials unless Accord Plumbers and the Client agree otherwise in writing.
10.2Accord Plumbers shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client
10.3If the giving of an estimate or quotation for the supply of Materials involves Accord Plumbers estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of Accord Plumbers’ estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.
10.4Should the Client require any changes to Accord Plumbers’ estimated measurements and quantities, the Client shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.
11. Surplus Materials
11.1Unless otherwise stated elsewhere in this contract.
(a)Only suitable new Materials or the Client’s reclaimed Materials will be used.
(b)Demolished Materials remain the Client’s property; and
(c)Materials which Accord Plumbers brings to the site which are surplus remain the property of Accord Plumbers.
12. Access
12.1The Client shall ensure that Accord Plumbers always has clear and free access to the work site to enable them to undertake the works. Accord Plumbers 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 Accord Plumbers.
13. Underground Locations
13.1Prior to Accord Plumbers commencing any work the Client must advise Accord Plumbers 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, fiber, optic cables, oil pumping mains, and any other services that may be on site.
13.2Whilst Accord Plumbers will take all care to avoid damage to any underground services the Client agrees to indemnify Accord Plumbers 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 13.1.
14. Title
14.1Accord Plumbers and the Client agree that ownership of the Materials shall not pass until:
(a)the Client has paid Accord Plumbers all amounts owing to Accord Plumbers; and
(b)the Client has met all of its other obligations to Accord Plumbers.
14.2Receipt by Accord Plumbers of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honored, cleared, or recognized.
14.3It is further agreed that:
(a)until ownership of the Materials passes to the Client in accordance with clause 14.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Accord Plumbers on request.
(b)the Client holds the benefit of the Client’s insurance of the Materials on trust for Accord Plumbers and must pay Accord Plumbers the proceeds of any insurance in the event of the Materials being lost, damaged, or destroyed.
(c)the production of these terms and conditions with Accord Plumbers shall be sufficient evidence of Accord Plumbers’ rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Accord Plumbers to make further enquiries.
(d)the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes, or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for Accord Plumbers and must pay or deliver the proceeds to Accord Plumbers on demand.
(e)the Client should not convert or process the Materials 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 Accord Plumbers and must sell, dispose of or return the resulting product to Accord Plumbers as it so directs.
(f)unless the Materials have become fixtures the Client irrevocably authorizes Accord Plumbers to enter any premises where Accord Plumbers believes the Materials are kept and recover possession of the Materials.
(g)Accord Plumbers may recover possession of any Materials in transit whether or not delivery has occurred.
(h)the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Accord Plumbers.
(i)Accord Plumbers may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
15. Client’s Disclaimer
15.1The Client hereby disclaims any right to rescind or cancel the contract or to sue for damages or to claim restitution arising out of any inadvertent misrepresentations made to the Client by Accord Plumbers and the Client acknowledges that the Materials are bought relying solely upon the Client’s own skill and judgement.
16. Personal Property Securities Act 2009 (“PPSA”)
16.1In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
16.2Upon 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 Materials that have previously been supplied and that will be supplied in the future by Accord Plumbers to the Client.
16.3The Client undertakes to:
(a)promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up to date in all respects) which Accord Plumbers may reasonably require to:
(i)register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register.
(ii)register any other document required to be registered by the PPSA; or
(iii)correct a defect in a statement referred to in clause 16.3 (a)(i) or 16.3(a)(ii);
(b)indemnify, and upon demand reimburse, Accord Plumbers for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby.
(c)not register a financing change statement in respect of a security interest without the prior written consent of Accord Plumbers.
(d)not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of Accord Plumbers; and
(e)immediately advise Accord Plumbers of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
16.4Accord Plumbers 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.
16.5The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
16.6The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
16.7Unless otherwise agreed to in writing by Accord Plumbers, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
16.8The Client shall unconditionally ratify any actions taken by Accord Plumbers under clauses 16.3 to 16.5.
16.9Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
17. Security and Charge
17.1In consideration of Accord Plumbers agreeing to supply the Materials, 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).
17.2The Client indemnifies Accord Plumbers from and against all Accord Plumbers’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Accord Plumbers’ rights under this clause.
17.3The Client irrevocably appoints Accord Plumbers and each director of Accord Plumbers as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.
18. Guarantee and Indemnity
18.1The Client, including the directors of the Client (if the Client is a corporate entity), including any other persons nominated or required by Accord Plumbers, shall jointly and severally act as guarantors to the Client under these Terms (“Guarantor”) and enter into this Guarantee and Indemnity with Accord Plumbers (“Guarantee and Indemnity”).
18.2The Guarantor shall guarantee:
(a)the performance of the obligations of the Client under this contract.
(b)the performance of the obligations of the Client under these terms and conditions.
(c)payment to Accord Plumbers of the Price and any invoices given by Accord Plumbers, without any deduction or set off; and
(d)payment of other monies now or in the future owing to Accord Plumbers.
18.3The Client and the Guarantor will indemnify and keep Accord Plumbers indemnified against any damages or costs incurred by Accord Plumbers as a result of the Client’s beach of these terms and conditions.
18.4The Client and the Guarantor agree that this is a continuing guarantee, and this guarantee is not affected if Accord Plumbers grants any extension of time for payment or varies the terms of these terms and conditions.
18.5The Guarantor must on demand:
(a)pay to Accord Plumbers all monies, interests, and/or damages which the Client fails to pay in default of the Client’s obligations under this contract, and these terms and conditions; or
(b)remedy any breach of the Client’s obligations under this contract, and these terms and conditions which the Client fails to observe and perform.
18.6The Guarantor, jointly and severally, irrevocably agree that the PPSA provisions in clause 16 shall apply to them, and acknowledge that:
(a)they have either:
(i)sought legal advice, if necessary, as to the purport, effect and consequences of and obligations created by this Guarantee and Indemnity from a lawyer independent of Accord Plumbers; or
(ii)having had the opportunity to seek such legal advice, determined such advice was not necessary, waived their rights to seek such advice, and that they understood the effect and consequences of, and obligations created by this Guarantee and Indemnity, before executing these Terms; and
(b)the Guarantor enters into this Guarantee and Indemnity freely after considering such advice or electing not to obtain such advice.
19. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
19.1The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify Accord Plumbers 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 Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Accord Plumbers to inspect the Materials or to review the Works provided.
19.2Under 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).
19.3Accord Plumbers acknowledges that nothing in these terms and conditions is purported to modify or exclude the Non-Excluded Guarantees.
19.4Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Accord Plumbers makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. Accord Plumbers’ liability in respect of these warranties is limited to the fullest extent permitted by law.
19.5If the Client is a consumer within the meaning of the CCA, Accord Plumbers’ liability is limited to the extent permitted by section 64A of Schedule 2.
19.6If Accord Plumbers is required to replace any Materials under this clause or the CCA, but is unable to do so, Accord Plumbers may refund any money the Client has paid for the Materials.
19.7If Accord Plumbers is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then Accord Plumbers may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.
19.8If the Client is not a consumer within the meaning of the CCA, Accord Plumbers’ liability for any defect or damage in the Materials is:
(a)limited to the value of any express warranty or warranty card provided to the Client by Accord Plumbers at Accord Plumbers’ sole discretion.
(b)limited to any warranty to which Accord Plumbers is entitled, if Accord Plumbers did not manufacture the Materials.
(c)Otherwise negated absolutely.
19.9Subject to this clause 19, returns will only be accepted provided that:
(a)the Client has complied with the provisions of clause 19.1; and
(b)Accord Plumbers has agreed that the Materials are defective; and
(c)the Materials are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d)the Materials are returned in as close a condition to that in which they were delivered as is possible.
19.10Notwithstanding clauses 19.1 to 19.9 but subject to the CCA, Accord Plumbers shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a)the Client failing to properly maintain or store any Materials.
(b)the Client using the Materials for any purpose other than that for which they were designed.
(c)the Client continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user.
(d)interference with the Works by the Client or any third party without Accord Plumbers’ prior approval.
(e)the Client failing to follow any instructions or guidelines provided by Accord Plumbers.
(f)fair wear and tear, any accident, or act of God.
19.11Notwithstanding anything contained in this clause if Accord Plumbers is required by law to accept a return, then Accord Plumbers will only accept a return on the conditions imposed by that law.
20. Intellectual Property
20.1Where Accord Plumbers has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules, and products shall remain vested in Accord Plumbers, and shall only be used by the Client at Accord Plumbers’ discretion.
20.2The Client warrants that all designs, specifications, or instructions given to Accord Plumbers will not cause Accord Plumbers to infringe any patent, registered design, or trademark in the execution of the Client’s order and the Client agrees to indemnify Accord Plumbers against any action taken by a third party against Accord Plumbers in respect of any such infringement.
20.3The Client agrees that Accord Plumbers may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Accord Plumbers has created for the Client.
21. Default and Consequences of Default
21.1Interest 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 Accord Plumbers’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
21.2If the Client owes Accord Plumbers any money the Client shall indemnify Accord Plumbers from and against all costs and disbursements incurred by Accord Plumbers in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Accord Plumbers’ collection agency costs, and bank dishonor fees).
21.3Without prejudice to any other remedies Accord Plumbers may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Accord Plumbers may suspend or terminate the supply of Works to the Client. Accord Plumbers will not be liable to the Client for any loss or damage the Client suffers because Accord Plumbers has exercised its rights under this clause. Without prejudice to Accord Plumbers’ other remedies at law Accord Plumbers shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Accord Plumbers shall, whether or not due for payment, become immediately payable if:
(a)any money payable to Accord Plumbers becomes overdue, or in Accord Plumbers’ opinion the Client will be unable to make payment when it falls due.
(b)the Client becomes insolvent or bankrupt, 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.
22. Compliance with Laws
22.1The Client and Accord Plumbers 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.
22.2The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the works.
22.3The 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.
23. Dispute Resolution
23.1If 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.
24. Cancellation
24.1Accord Plumbers may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works commenced by giving written notice to the Client. On giving such notice Accord Plumbers shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Accord Plumbers for Works already performed. Accord Plumbers shall not be liable for any loss or damage whatsoever arising from such cancellation.
24.2In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by Accord Plumbers as a direct result of the cancellation (including, but not limited to, any loss of profits).
24.3Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
25. Privacy Act 1988
25.1The Client agrees for Accord Plumbers to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Accord Plumbers.
25.2The Client agrees that Accord Plumbers may exchange information about the Client 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 the 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 creditworthiness of the Client. The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
25.3The Client consents to Accord Plumbers being given a consumer credit report to collect overdue payment on commercial credit under the Privacy Act 1988
25.4The Client agrees that personal credit information provided may be used and retained by Accord Plumbers for the following purposes (and for other purposes as shall be agreed between the Client and Accord Plumbers or required by law from time to time):
(a)the provision of Works; and/or
(b)the marketing of Works by Accord Plumbers, its agents, or distributors; and/or
(c)analyzing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
(d)processing of any payment instructions, direct debit facilities and/or credit facilities requested by the 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.
25.5Accord Plumbers 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.
(b)allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
25.6The information given to the credit reporting agency may include:
(a)personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s license number);
(b)details concerning the Client’s application for credit or commercial credit and the amount requested.
(c)advice that Accord Plumbers is a current credit provider to the Client.
(d)advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started.
(e)that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed.
(f)information that, in the opinion of Accord Plumbers, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations).
(g)advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonored more than once.
(h)that credit provided to the Client by Accord Plumbers has been paid or otherwise discharged.
26. Construction Contracts Act 2004
26.1At Accord Plumbers’ sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Construction Contracts Act 2004 may apply.
26.2Nothing in this agreement is intended to have the effect of contracting out of any provisions of the Construction Contracts Act 2004 of Western Australia, except to the extent permitted by the Act where applicable.
27. General
27.1The failure by Accord Plumbers to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Accord Plumbers’ 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.
27.2These terms and conditions and any contract to which they apply shall be governed by the laws of the state of Western Australia in which Accord Plumbers has its principal place of business and are subject to the jurisdiction of the courts in that state.
27.3Subject to clause 19 Accord Plumbers 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 Accord Plumbers of these terms and conditions (alternatively Accord Plumbers’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
27.4The 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 Accord Plumbers nor to withhold payment of any invoice because part of that invoice is in dispute.
27.5Accord Plumbers may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
27.6The Client agrees that Accord Plumbers may amend these terms and conditions at any time. If Accord Plumbers makes a change to these terms and conditions, then that change will take effect from the date on which Accord Plumbers notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Accord Plumbers to provide any Works to the Client.
27.7Neither 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.
27.8The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorizations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.