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In these Terms:
"ACL" means the Australian Consumer Law enacted as Schedule 2 of the Competition and Consumer Act 2010 (Cth);
"Agreement" means any agreement for the provision of goods or services by the Supplier to the Client;
"consumer" is as defined in the ACL and in determining if the Client is a consumer, the determination is made if Client is a consumer under the Agreement;
"Client" means the person, jointly and severally if more than one, acquiring goods or services from the Supplier;
"goods" means goods supplied by the Supplier to the Client;
"GST" means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
"PPSA" means the Personal Property Securities Act 2009 as amended;
"Supplier" means Blue Diamond Plumbing Pty Ltd as trustee for Blue Diamond Plumbing Pty Ltd Trust ABN 12146655412;
"services" means services supplied by the Supplier to the Client; and
"Terms" means these Terms and Conditions of Trade.
2.1 Unless otherwise negotiated and agreed by the Supplier in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Client’s terms and conditions of purchase (if any).
2.2 Any quotation provided by the Supplier to the Client for the proposed supply of goods and/or services is:
(a) valid until the Expiry Date set out in the quotation or where no Expiry Date is stipulated for 30 days after the date of the quotation;
(b) an invitation to treat only; and
(c) only valid if in writing.
2.3 The Terms may include additional terms in the Supplier's quotation, which are not inconsistent with the Terms.
2.4 An Agreement is accepted by the Supplier when the Supplier accepts, either in writing or by electronic means, an offer, order or direction from the Client to provide the Client with the goods or services.
2.5 The Supplier has absolute discretion to refuse to accept any offer.
2.6 The Client must provide the Supplier with its specific requirements, if any, in relation to the goods and services.
2.7 The Supplier may vary or amend these Terms by written notice to the Client at any time. Any variations or amendments will apply to orders placed after the notice date.
2.8 All quotations provided by the Supplier:
(a) make no provision for the costs associated with the identification or removal and cartage of any asbestos containing material (ACM) which may be encountered during supply of the goods and services; and
(b) are based upon the assumption that all the existing installations comply with all relevant building and plumbing legislation and relevant Australian standards.
Any costs associated with the identification and removal of ACM and any work required to bring existing installations into compliance with building and plumbing legislation and relevant Australian standards shall constitute a variation and such variation will permit additional charge for such work.
2.9 The Supplier reserves the right to change or vary any quotation given:
(a) if a variation of any of the goods to be supplied is requested or;
(b) if a variation to the services as set out in the quotation (including, without limitation, any applicable plans or specifications) is requested; or
(c) where additional services are required due to the discovery of hidden or unidentified difficulties including, but not limited to, poor weather conditions, limitations to site access, hard rock barriers below the surface, safety considerations or prerequisite work by any third party not being completed and which are only discovered upon commencement of the provision of the goods and services by the Supplier; or
(d) in the event of increases to the Supplier’s costs of labour or materials (including, but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges which are beyond the control of the Supplier).
3.1 Unless stated otherwise, prices quoted for the supply of goods and services exclude GST and any other taxes or duties imposed on or in relation to the goods and services.
3.2 If the Client requests any variation to the Agreement, the Supplier may increase the price to account for the variation.
3.3 Where there is any change in the costs incurred by the Supplier in relation to the goods or services, the Supplier may vary its price to take account of any such change, by notifying the Client.
3.4 Where any prime cost or provisional sums have been included in the quotation provided by the Supplier and a greater amount is spent than the prime cost or provisional sum allowance, the Client must pay the difference to the Supplier on the date of payment of the invoice for the goods or services. Prime cost items include fittings, materials and products provided by the Supplier at the specific directions of the Client and at the cost of the Client or, where provided by the Client at no cost to the Supplier, and the installation or use of such materials or products give rise to a cost to the Supplier in addition to any amount allowed for by the supplier in the quotation.
4.1 Unless otherwise agreed in writing, full payment for the goods and services must be made on the date of the Supplier’s invoice upon completion of the services and delivery of the goods.
4.2 Payment may be made by cash, electronic/online bank transfer, credit card (credit card merchant fees may apply) or any other method as agreed between the Supplier and the Client.
4.3 Payment terms may be revoked or amended at the Supplier’s sole discretion immediately upon giving the Client written notice.
4.4 The time for payment is of the essence.
5.1 If the Client defaults in payment by the due date of any amount payable to the Supplier, then all money which would become payable by the Client to the Supplier at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Client, and the Supplier may, without prejudice to any of its other accrued or contingent right :
(a) charge the Client interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) for the period from the due date until the date of payment in full;
(b) charge the Client for, and the Client must indemnify the Supplier from, all costs and expenses (including without limitation all legal costs and expenses together with re-stocking fees) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any goods or to mitigate the Supplier’s loss and damage arising from the default;
(c) cease or suspend supply of any further goods or services to the Client;
(d) by written notice to the Client, terminate any uncompleted contract with the Client.
5.2 Clauses 5.1(c) and (d) may also be relied upon, at the Supplier's option:
(a) where the Client is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Client is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Client.
6.1 Until the Supplier receives full payment in cleared funds for all goods and services supplied by it to the Client, as well as all other amounts owing to the Supplier by the Client:
(a) title and property in all goods remain vested in the Supplier and do not pass to the Client;
(b) the Client must hold the goods as fiduciary, bailee and agent for the Supplier;
(c) the Client must keep the goods separate from its goods and maintain the Supplier’s labelling and packaging (if any);
(d) the Client must hold the proceeds of sale of the goods on trust for the Supplier in a separate account with a bank to whom the Client has not given security however failure to do so will not affect the Client's obligation as trustee;
(e) in addition to its rights under the PPSA, the Supplier may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of the Supplier, and for this purpose the Client irrevocably licences the Supplier to enter such premises and also indemnifies the Supplier from and against all costs, claims, demands or actions by any party arising from such action.
7.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
7.2 For the purposes of the PPSA:
(a) terms used in this clause 7 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and the Supplier has a Purchase Money Security Interest in all present and future goods supplied by the Supplier to the Client and the proceeds of the goods;
(c) The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Client at any particular time; and
(d) the Client must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by the Supplier on the Personal Property Securities Register.
7.3 The security interest arising under this clause 7 attaches to the goods when the goods are collected or dispatched from the Supplier's premises and not at any later time.
7.4 Where permitted by the PPSA, the Client waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
7.5 To the extent permitted by the PPSA, the Client agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Client or which place obligations on the Supplier will apply only to the extent that they are mandatory or the Supplier agrees to their application in writing; and
(b) where the Supplier has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
7.6 The Client must immediately upon the Supplier's request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by the Supplier to be relevant to its security position such agreements and waivers (including as equivalent to those above) as the Supplier may at any time require.
7.7 The Supplier may allocate amounts received from the Client in any manner the Supplier determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by the Supplier.
8.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Client immediately on the goods being delivered to the Client or taken from the Supplier’s premises.
8.2 The goods are sold to the Client on the basis that the Client has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.
8.3 The Client assumes all risk and liability for loss, damage or injury to persons or to property of the Client, or third parties arising out of the use, installation or possession of any of the goods sold by the Supplier, unless recoverable from the Supplier on the failure of any statutory guarantee under the ACL.
9.1 Any period or date for delivery of goods or provision of services stated by the Supplier is an estimate only and not a contractual commitment.
9.2 The Supplier will use its reasonable endeavours to meet any estimated dates for delivery of the goods and provision of the services but will not be liable for any loss or damage suffered by the Client or any third party for failure to meet any estimated date.
9.3 If the Supplier cannot complete the services by any estimated date, it will complete the services within a reasonable time.
10.1 Subject to the provisions of this clause 10.1 the Supplier will arrange for the delivery of the goods to the Client.
10.2 The Client is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Client to the point of delivery.
10.3 The Supplier may make part delivery of goods or provision of services and the Supplier may invoice the Client for any part of the goods or services provided.
10.4 The Client indemnifies the Supplier against any loss or damage suffered by the Supplier, its sub-contractors or employees as a result of delivery, except where the Client is a consumer and the Supplier has not used due care and skill.
10.5 If delivery is attempted and is unable to be completed the Client is deemed to have taken delivery of the goods. The Client is liable for storage charges payable monthly on demand.
11.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods or services or the ACL, the Agreement does 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 goods or services or any contractual remedy for their failure.
11.2 If the Client is a consumer nothing in these Terms restricts, limits or modifies the Client's rights or remedies against the Supplier for failure of a statutory guarantee under the ACL.
11.3 If the Client on-supplies the goods to a consumer:
(a) if the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of the Supplier's liability to the Client;
(b) otherwise, payment of any amount required under section 274 of the ACL is the absolute limit of the Supplier's liability to the Client;
however arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Client or any third party.
11.4 If clause 11.2 or 11.3 do not apply, then other than as stated in the Terms or any written warranty statement, the Supplier is not liable to the Client in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Client or any third party.
11.5 The Supplier is not liable for any indirect or consequential losses or expenses suffered by the Client or any third party, however caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL..
11.6 The Client acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by the Supplier in relation to the goods or services or their use or application.
(b) it has not made known, either expressly or by implication, to the Supplier any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Client.
11.7 Nothing in the Terms 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.
12.1 If the Supplier is unable to deliver or provide the goods or services, then it may cancel the Client's order (even if it has been accepted) by written notice to the Client.
12. 2 No purported cancellation or suspension of an order or any part of it by the Client is binding on the Supplier once the order has been accepted.
13.1 Subject to clause2 and 13.4, the Supplier will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless the Client notifies the Supplier with full details and description within 10 days of delivery otherwise the Client is deemed to have accepted the goods.
13.2 When any shortages, claim for damaged goods or non-compliance with the Agreement specifications is accepted by the Supplier, the Supplier may, at its option, replace the goods, or refund the price of the goods.
13.3 Subject to clause 4, the Supplier will not under any circumstances accept goods for return that:
(a) have been specifically produced, imported or acquired to fulfil the Agreement;
(b) are discontinued goods or no longer stocked by the Supplier;
(c) have been altered in any way;
(d) have been used; or
(e) are not in their original condition and packaging.
13.4 If the Client is a consumer, nothing in this clause 13 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
14.1 The Supplier is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, pandemic, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, the Supplier may suspend or terminate the Agreement by written notice to the Client.
15.1 The law of Victoria from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the Courts and Tribunals of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
15.2 The Supplier’s failure to enforce any of these Terms shall not be construed as a waiver of any of the Supplier’s
15.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
15.4 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.
15.5 The Client must comply with the National Privacy Principles in connection with any personal information supplied to it in connection with this Agreement.
