- “Contractor” shall mean Peter James Stannard T/A Peter Stannard Plumbing Gas & Airconditioning its successors and assigns or any person acting on behalf of and with the authority of Peter James Stannard T/A Peter Stannard Plumbing Gas & Airconditioning.
- ‘Client’ shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by the Contractor to the Client.
- “Guarantor” means that person (or persons) or entity who agrees to be liable for the debts of the Client on a principal debtor basis.
- “Goods” shall mean Goods supplied by the Contractor to the Client (and where the context so permits shall include any supply of Services as hereinafter deed) and are as described on the invoices, quotation, work authorisation, or any other forms as provided by the Contractor to the Client.
- “Services” shall mean all Services supplied by the Contractor to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
- “Price” shall mean the price payable for the Goods as agreed between the Contractor and the Client in accordance with clause 4 of this contract.
The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FlA”) and application of these terms and conditions to consumers.
- Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
- Clause 10 (Defects) and clause 11 (Warranty) may NOT apply to the Client where the Client is purchasing Goods or Services not for resale or hire where the Price of the Goods or Services does not exceed $40,000, or where the Price of the Goods or Services does exceed $40,000 and are of a kind ordinarily acquired for personal, domestic or household use or consumption, or where the Client is in any other way a consumer within the meaning of the TPA or the FTA of the relevant state or territories of Australia.
- Any instructions received by the Contractor from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by the Contractor shall constitute acceptance of the terms and conditions contained herein.
- Where more than one Client has entered into this agreement, the Client shall be jointly and severally liable for all payments of the Price.
- Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of the Contractor.
- The Client shall give the Contractor 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 the Contractor as a result of the Client’s failure to comply with his clause.
- Goods are supplied by the Contractor only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
Price and Payment
- At the Contractor’s sole discretion the Price shall be either:
- as indicated on invoices provided by the Contractor to the Client in respect of Goods supplied; or
- the Contractors quoted Price (subject to clause 4.2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days.
- The Contractor reserves the right to change the Price in the event of a variation to the Contractor’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances, or as a result of increases to the Contractor in the cost of materials and labour) will be charged for on the basis of the Contractor’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
- At the Contractor’s sole discretion payment for approved Clients shall be due thirty (30) days following the end of the month in which an invoice is posted to the Client’s address or address for notices.
- Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is state then payment shall be due seven (7) days following the date of the invoice.
- Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price) or by direct credit, or by any other method as agreed to between the Client and the Contractor.
- GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Delivery Of Goods
- At the Contractor’s sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by the Contractor or the Contractor’s nominated carrier).
- At the Contractor’s sole discretion the costs of delivery are included in the Price.
- The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Contractor shall be entitled to charge a reasonable fee for redelivery.
- The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated.
- The Contractor shall not be liable for any loss or damage whatsoever due to failure by the Contractor to deliver the Goods (or any of them) promptly or at all where due to circumstances beyond the control of the Contractor.
- If the Contractor retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
- If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Contractor is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Contractor is sufficient evidence of the Contractor’s rights to receive the insurance proceeds without the need for any person dealing with the Contractor to make further enquiries.
- Where the Client expressly requests the Contractor to leave Goods outside the Contractor’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 and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
- The Client acknowledges and agrees that the presence of plant/tree root growth and/or blockages generally indicates damaged pipes. Accordingly the Client agrees that these pipes cannot be fixed by simply removing plant/tree root growth or cleaning the drain, therefore no warranty is provided against this situation arising again in the future and in respect of any work carried out in relation thereto.
The Client shall ensure that the Contractor has clear and free access to the work site at all times to enable them to undertake the works. The Contractor 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 the Contractor.
- Prior to the Contractor commencing any work the Client must advise the Contractor 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 an other services that may be on site.
- Whilst the Contractor will take all care to avoid damage to any underground services the Client agrees to indemnify the Contractor 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 8.1.
- The Contractor and the Client agree that ownership of the Goods shall not pass until:
- the Client has paid the Contractor all amounts owing for the particular Goods; and
- the Client has met all other obligations due by the Client to the Contractor in respect of all contracts between the Contractor and the Client.
- Receipt by the Contractor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Contractor’s ownership or rights in respect of the Goods shall continue.
- It is further agreed that;
- where practicable the Goods shall be kept separate and identifiable until the Contractor shall have received payment and all other obligations of the Client are met; and
- until such time as ownership of the Goods shall pass from the Contractor to the Client the Contractor may give notice in writing to the Client to return the Goods or any of them to the Contractor. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
- the Contractor shall have the right of stopping the Goods in transit whether or not delivery has been made; and
- if the Client fails to return the Goods to the Contractor then the Contractor or the Contractor’s agent may enter upon and into land and premises owned, occupied or used by the Client or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
- the Client is only bailee of the Goods and until such time as the Contractor has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to the Contractor for the Goods, up to and including the amount the client owes to the contractor for the Goods, on trust for the Contractor; and
- the Client shall not deal with the money of the Contractor in any way which may be adverse to the Contractor; and
- the Client shall not charge the Goods in any way not grant not otherwise give any interest in the Goods while they remain the property of the Contractor; and
- the Contractor can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership in the Goods may not have passed to the Client; and
- until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the Contractor will be the owner of the end products.
- The Client shall inspect the Goods on delivery and shall within seven (7) days of the delivery (time being of the essence) notify the Contractor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Contractor an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods which the Contractor has agreed in writing that the Client is entitled to reject, the Contractors liability is limited to either (at the Contractor discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWith) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods or repair of the Goods or replacement of the Goods.
- Goods will not be accepted for return other than in accordance with 10.1 above.
- Subject to the conditions of warranty set out in clause 11.2 the Contractor warrants that is any defect in any workmanship of the Contractor becomes apparent and is reported to the Contractor within three (3) months of the date of delivery (time being of the essence) then the Contractor will either (at the Contractors sole discretion) replace or remedy the workmanship.
- The conditions applicable to the warranty given by clause 11.1 are:
- the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
- failure on the part of the Client to properly maintain any Goods; or
- failure on the part of the- Client to follow any instructions or guidelines provided by the Contractor: or
- any use of any Goods otherwise than for any application specified on a quote or order form; or
- the continued use of any Goods after any defect becomes apparent to a reasonably prudent operator or user; or
- fair wear and tear, any accident or act of God.
- the warranty shall cease and the Contractor shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired altered or overhauled without the Contractor’s consent.
- in respect of all claims the Contractor shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
- the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
- For Goods not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Contractor shall not be bound by nor he responsible for any term condition, representation or warranty other than that which is given by the manufacturer of the Goods.
Default & 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 Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- In the event that the Clients payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by the Contractor.
- If the Client defaults in payment of any invoice when due, the Client shall identify the Contractor from and against all costs and disbursements incurred by the Contractor in pursuing the debt including legal costs on a solicitor and own client basis and the Contractors collection agency costs.
- Without prejudice to any other remedies the Contractor may have if any time the client is in breach of an obligation (including those relating to payment) the Contractor may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised the right under this clause.
- If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
- Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall whether or not due for payment, become immediately payable in the event that:
- any money payable to the Contractor becomes overdue, or in the Contractors opinion the client will be unable to meet its payments they fall due or;
- the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benet of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect to the Client or any asset of the Client.
Security And Charge
- Despite anything to the contrary contained herein or any other rights which the Contractor may have howsoever:
- where the Client and/or the Guarantor (if any) is the owner of land, reality or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, reality or any other asset to the Contractor or the Contractor’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Contractor (or the Contractor’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
- should the Contractor elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis.
- the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Contractor or the Contractor’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give e‑ect to the provisions of this clause 13.1.
Compliance with Laws
- The Client and the Contractor shall comply with the provisions of all statutes, regulations and by laws of government, local and other public authorities that may be applicable to the works.
- The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the works.
- The 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.
- If 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:
- referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia: and
- conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
- The Contractor 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 Contractor shall repay to the Client any sums paid in respect of the Price. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellations.
- In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by the Contractor (including, but not limited to, any loss of profits) up to the time of cancellation.
Privacy Act 1988
- The Client and/or the Guarantor/s agree for the Contractor to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Contractor.
- The Client and/or the Guarantor/s agree that the Contractor may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
- to assess an application by Client: and/or
- to notify other credit providers of a default by the Client: and/or
- 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
- to assess the credit worthiness of Client and/or Guarantors.
- The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1 )(h) Privacy Act 1988).
- The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes and for other purposes as shall be agreed between the Client and Contractor or required by law from time to time:
- provision of Goods: and/or
- marketing of Goods by the Contractor. Its agents or distributors in relation to the Goods: and/or
- analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
- processing of any payment instructions. direct debit facilities and/or credit facilities requested by Client; and/or
- enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
- The Contractor may give information about the Client to a credit reporting agency for the following purposes:
- to obtain a consumer credit report about the Client; and/or
- allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
Construction Contracts Act 2004
- At the contractors sole discretion, if there are any disputes or claims for unpaid Goods and/or services then the provisions of the Construction Contracts 2004 may apply.
- Nothing in this agreement is intended to have the a‑ect of contracting out of any provisions of the Construction Contract Act 2004 of Western Australia, except to the extent permitted by the Act where applicable.
- 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, prejudice or impaired.
- These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia and are subject to the jurisdiction of the courts of Western Australia.
- The Contractor 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 Contractor of these terms and conditions.
- In the event of any breach of this contract by the Contractor the remedies of the Client shall be limited to damages which under no circumstance shall exceed the Price of the Goods.
- The Client shall not be entitled to set o‑ against, or deduct from the Price, any sum owed or claimed to be owed to the Client by the Contractor nor to without payment of any invoice because part of that invoice is in dispute.
- The Contractor may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
- The Client agrees that the Contractor may review these terms and conditions at any time. If following any such review, there is to be any change to these terms and conditions, them that change will take effect from the date on which the Contractor notifies the Client of such change.
- 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.
- The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’s right to subsequently enforce that provision.
Existing electrical and gas must comply with all State Regulations. Upgrades and repairs to facilitate this be invoiced separately to any other work completed.