These are the entire Terms and Conditions of Supply of all goods and services supplied by JBT Holdings Pty Ltd (ACN 143 074 159) trading as PHOENIX TRAFFIC MANAGEMENT and its related entities, including but not limited to JBT Holdings (NSW) Pty Ltd (ACN 601 572 123) (“the Supplier”).
Clause 1 sets out a glossary to help the parties read and understand the Terms.
Clauses 2 – 4 outlines how these Terms are set up, our relationship under these Terms, and how these Terms can be changed.
⦁ DEFINITIONS AND INTERPRETATION
Account Customer means a Customer who has a Credit Account with Us and who may make purchases through that account.
Additional Expenses means any duties, fees, taxes (including GST), delivery charges, merchant fees, installation fees, storage fees and levies imposed by these Terms.
COD Customer means a Customer who is not an Account Customer and may make purchases on a pre-paid or cash-on-delivery basis only.
Credit Account means the approved commercial account You have with Us to purchase Goods and Services on credit pursuant to these Terms.
Customer means any person, firm or company placing an Order with Us for the purchase of Goods, Labour Hire and Services pursuant to these Terms and includes Your agents and permitted assigns (all of which are referred to as “You” and “Your”).
Deposit means the payment of fifty (50) percent of each Order price in respect of Goods and Services, and the payment of a minimum of 4 hours work per individual personnel in respect of Labour Hire.
Due Date means the date listed on Our invoice for Your payment of Goods, Labour Hire and/or Services.
Goods means any goods, equipment and merchandise supplied by Us to You pursuant to any Quote, Order and/or these Terms, including but not limited to traffic management and control equipment.
Industrial Law means any industrial or employment contract, award, instrument, rule, statute or legislation and amended from time to time.
Insolvency Event means any circumstances where We reasonably believe that You are unable to pay Your debts as and when they fall due or You have suffered a material adverse change in Your financial circumstances.
Labour Hire means professional personnel services provided by Us to You pursuant to any Quote, Order and/or these Terms, including the recruitment and supply of employees, contractors, agents and other personnel to perform work, labour and services for You.
Loss means any claim, demand, cause of action, loss and damage, liability, costs (including legal costs on an indemnity basis), expenses (including any GST payable) and is not limited by the Losses which were contemplated by the parties at the time of entering into these Terms.
Order means an order for the hire or purchase of Goods, Labour Hire and/or Services placed by You.
Permanent Placement Fee means a fee equivalent to 160 hours of an applicable Worker’s charge rate.
PPS Law means:
⦁ the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and
⦁ any amendment made at any time to any other legislation as a consequence of a PPS Law.
Quote means a written description of the Goods, Labour Hire and/or Services to be provided by Us to You.
Services means professional traffic management and building site services provided by Us to You pursuant to any Quote, Order and/or these Terms, including but not limited to traffic management plans and consultation, risk and hazard assessment, permit compliance, certification, traffic control solutions, forklift services, hoist and elevator services, carpentry services and other traffic management and building site related services.
Site means any place at which You request Goods, Labour Hire and/or Services to be supplied.
Supplier means the entity or entities specified in these Terms as supplying Goods, Labour Hire and/or Services to You and includes any associated, related, subsidiary and parent companies, successors and assigns (all of which are referred to as “Us”, “We” and “Our”).
Terms means the contract created by these Terms and Conditions of Supply.
Website means https://www.phoenixtraffic.com.au/ as redirected from time to time.
Worker means any person who is Our employee, agent, contractor or other personnel and supplied by Us to conduct work, labour or services for You.
In these Terms:
⦁ A Business Day is any day except Saturday, Sunday or a public holiday in the location where the Goods, Labour Hire and/or Services are being supplied;
⦁ a reference to writing includes email and any communication through Our website;
⦁ a reference to a clause or paragraph is a reference to these Terms;
⦁ a reference to a party to these Terms or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
⦁ where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
⦁ headings and any explanatory notes and paragraphs are for ease of reference only and do not affect the meaning or interpretation of these Terms; and
⦁ if these Terms require something to be done on a day that is not a Business Day (for example, payment or notice), then it must be done on the preceding Business Day.
⦁ THIS AGREEMENT AND OUR RELATIONSHIPS
⦁ These are the entire terms and conditions of sale of all Goods, Labour Hire and/or Services supplied by Us to You. Except where the parties agree otherwise (which must be by a duly authorised officer and in writing), these Terms apply notwithstanding any provisions to the contrary which may appear on any other document, including a Quote, Order or Invoice.
⦁ You warrant that You have obtained all the necessary authorisations to enter into and perform the contract created by these Terms.
⦁ You accept these Terms by signing and returning a copy of them to Us or by other conduct, for example by oral acceptance, making an Order, or by instructing Us to commence or continue Services.
⦁ You engage Us to provide Goods, Labour Hire and/or Services strictly as an independent contractor. We are not engaged as Your employee, partner, agent, joint venture or franchisee, nor is any other person working at Our direction.
⦁ In respect of Labour Hire under these Terms:
⦁ No contractual relationship exists between You and any Worker, and no Worker is to be construed as Your employee, independent contractor, partner, agent, joint venturer or franchisee;
⦁ Neither We, nor any Worker, has the right or authority to bind You, assume or create any obligations for You or on Your behalf, or make any representations or warranties for You or on Your behalf; and
⦁ Workers are not entitled to any benefit from You that is usually attributable to an employee.
⦁ APPLICABLE LAW
⦁ These Terms are interpreted according to the laws of the State or Territory as We may determine in Our sole discretion. Proceedings by either party may be commenced and/or continued in the State or Territory We determine in Our sole discretion. If We do not make any determination, You consent to any proceedings being commenced and heard by a Court in the State of Victoria applying the laws of that State.
⦁ CHANGES AND UPDATES TO THE TERMS
⦁ From time-to-time, and at any time, We may update or alter these Terms. Any updated or altered Terms will apply from the date of alteration. A copy of current Terms can be found on Our website or by requesting a copy from Us.
⦁ We will endeavour to notify You of any updated or altered Terms. However, there is no obligation whatsoever on Us to notify You of updated Terms and You agree that You must regularly inspect Our website for any updated Terms.
⦁ You must notify Us in writing of any material change to Your organisation, including a change of director, bank account details or change of address.
⦁ We may assign and transfer all or any of Our title, estate, interest, benefit, rights, duties and obligations in these Terms to any person, provided that the assignee agrees to assume any of Our duties and obligations owed to You in these Terms.
⦁ You must not assign, transfer, charge, encumber or otherwise deal with any of Your rights and obligations under these Terms, or attempt or purport to do so, without Our prior written consent.
Clause 5 & 6 deal with how to purchase from Us, including quotes, orders, supply and delivery
⦁ PRICES, QUOTATIONS AND ORDERS
⦁ You may hire or purchase Goods, Labour Hire and Services by placing an Order with Us verbally or in writing. You warrant that the person who places the Order is authorised by You to do so.
⦁ Unless the parties agree otherwise, any Order for Labour Hire must include:
⦁ The location and period of Labour Hire required;
⦁ The number of Workers required (including classifications and qualifications required, where applicable);
⦁ In the case of a construction or building Site, or any Labour Hire that is in respect of an Enterprise Bargaining Agreement, a minimum order of 8 hours Labour Hire per Worker required or alternatively a minimum price equivalent to 8 hours Labour Hire per Worker required; and
⦁ In the case of all other Sites, a minimum order of 4 hours Labour Hire per Worker required, or alternatively a minimum price equivalent to 4 hours Labour Hire per Worker required.
⦁ We may issue a Quote to You, but a Quote is not an offer by Us to supply Goods, Labour Hire and Services to You. All Quotes expire on the date stated on the Quote or otherwise 30 days after the date the Quote is issued by Us.
⦁ We may vary or cancel any Quote before an Order is accepted.
⦁ We may accept or decline any Order by notifying You in writing, by delivering the Goods to You, providing the Labour Hire or supplying the Services. The parties agree that these Terms apply to all Orders for the supply of Goods, Labour Hire and Services.
⦁ If You are a COD Customer:
⦁ We may ask you to pay a Deposit upon receipt of a Quote from Us;
⦁ We will not be deemed to have accepted Your Order until payment of the Deposit has been made; and
⦁ The balance price of the Order must be paid no later than three (3) days prior to delivery of the Goods or supply of the Services.
⦁ You may cancel an Order within twenty-four (24) hours of placing the Order without incurring any cancellation fees. If you cancel an Order after twenty-four (24) hours:
⦁ We may require You to make full payment of Your Order in the case of Goods, or full payment of the Deposit in the case of Labour Hire and Services if that Deposit has not already been paid; and
⦁ You agree that we will be entitled to retain any Deposit paid by You and apply the payment at Our discretion towards any sum owed to Us.
⦁ Unless the parties agree differently in writing, the price You must pay for Goods, Labour Hire and Services is specified in Our invoice and may include Additional Expenses.
⦁ We have the right to change the prices of Goods, Labour Hire and Services supplied under these Terms:
⦁ Without notice, before accepting any Order or request for a Quote;
⦁ With 14 days’ notice at any other time.
⦁ All amounts payable by You for Goods, Labour Hire and Services are inclusive of GST (unless expressly stated otherwise). You must pay Us GST imposed on any supply of Goods, Labour Hire and Services made under these Terms. Payment of any GST must be made at the same time as payment for the Goods, Labour Hire and Services.
⦁ Our prices for Labour Hire specifically include the services, costs and allowances listed at clause 6. (r). Our prices for Labour Hire do not include the services, costs and allowances listed at clause 6.(s) and, if required to be undertaken or paid by Us, may be charged to You as Additional Expenses.
Clause 6 outlines how Goods, Labour Hire and Services are supplied and delivered
⦁ SUPPLY AND DELIVERY
⦁ The specifications for the Goods, Labour Hire and/or Services to be supplied under these Terms are contained in the Order/s You submit from time-to-time.
⦁ At any time, We may appoint an agent to perform Our obligations of these Terms.
1. Supply and Delivery of Goods
⦁ We will use our best endeavours to call You twenty-four (24) hours prior to any scheduled delivery time of Goods.
⦁ To supply Goods to You, we may make the Goods available for Your collection or deliver the Goods. Delivery may be by a third-party carrier and delivery by instalments.
⦁ You authorise Us to deliver the Goods to the Site nominated by You. You also authorise Us to leave the Goods at the Site whether or not any person is there to accept delivery.
⦁ We are not obliged to obtain a signed receipt, signed delivery docket or other acknowledgement of the Goods being delivered. But if a signed receipt, delivery docket or other acknowledgement is obtained then that document will be conclusive evidence that you have accepted delivery of the Goods.
⦁ You must provide a suitable and safe area for Us to deliver the Goods, including a delivery site that is compliant with occupational health and safety legislation and fully insured for Our (or Our agents, employees or contractors) safe use.
⦁ All delivery times indicated by Us are estimates only. Delivery times are subject to the Goods being available and subject to Our reasonable ability to make the delivery on that date. We will endeavour to deliver Goods at the time you need, but if We fail to deliver Goods within a specified time or We fail to deliver any instalment, You are not allowed to cancel Your Order, refuse to accept delivery or refuse to pay for the Goods.
⦁ Delivery of the Goods is deemed to occur when the Goods are:
⦁ Handed to You or Your representative; or
⦁ Delivered to the site nominated by You or appearing on Your invoice for the Goods; or
⦁ Collected from Us by You or Your representative, whichever occurs first.
⦁ When delivery occurs Our delivery obligation is discharged.
⦁ If You do not collect the Goods by the nominated collection date, then We may deliver the Goods to any site nominated by You or appearing on Your invoice for the Goods. We may also store the Goods or refuse to store the Goods if full payment has not been received from You.
⦁ You agree to examine the Goods immediately on delivery.
⦁ We are not liable for any Loss suffered by You whatsoever after delivery of the Goods to You.
⦁ You must pay all costs and fees We incur due to:
⦁ Our storage or delivery of the Goods where You have failed to collect them by the nominated collection date;
⦁ Any delay in delivery of the Goods which is caused by You, the conditions of the nominated delivery site or the nature of the Goods being delivered;
⦁ Any unexpected labour, permit, licence or additional costs in connection with the delivery.
⦁ Entry onto Our premises is at Your own risk. It is also at the risk of Your agents, employees, contractors and other representatives. We are not liable for any Loss whatsoever that You (or any of Your agents, employees, contractors or other representatives) incur at Our premises.
⦁ In respect of hired Goods, You must:
⦁ Ensure that You satisfy Yourself as to the suitability, condition, and fitness for purpose of the hired Goods without relying on the skills or judgment of Us. To the extent permitted by law, You acknowledge that We have not made any representation or warranty as to the suitability, condition and fitness for purpose of the hired Goods or any other matter (other than what is expressly set out in writing);
⦁ At all times transport, load, erect, install and operate hired Goods safely, strictly in accordance with all laws, only for the intended purpose of the hired Goods and in accordance with manufacturer instructions;
⦁ Clean, fuel and maintain all hired Goods in good condition and in accordance with Ours and the manufacturer’s instructions at Your cost;
⦁ Not in any way alter, modify, tamper with or damage the hired Goods without Our prior written consent;
⦁ Store the hired Goods safely and securely to ensure that they are protected from theft, vandalism, seizure, damage or subject to adverse climate or environmental conditions that may damage the Goods (for example, corrosion or flooding);
⦁ Not use the hired Goods off-shore, over water or in a mine, or remove the hired Goods from the Site/s for which it was hired without Our prior written consent;
⦁ Not expose the hired Goods to any hazardous substance (including asbestos) without Our prior written consent. You must immediately advise Us if the hired Goods have, or are at risk of, contact with a hazardous substance;
⦁ Allow Us to inspect and maintain the hired Goods with reasonable notice during the hire period;
⦁ Return the hired Goods to Us in the same good and clean condition the Goods were in when You hired them, save for fair wear and tear.
1. Supply and Delivery of Labour Hire
⦁ We will:
⦁ Supply Workers who are appropriately qualified, experienced, trained and resourced to undertake the work required;
⦁ Ensure that all Workers have the right to work in Australia and that appropriate visa and work rights checks are made in accordance with the Migration Act 1958 (Cth); and
⦁ Make all reasonable attempts to ensure that Workers comply with all work health and safety requirements of the state or territory in which the Labour Hire work is carried out, together with Your reasonable health and safety policies and procedures and site operational requirements, to ensure the health and safety of Workers at all times.
⦁ We are responsible for:
⦁ Payment of remuneration and other entitlements that a Worker may be entitled under any Industrial Law, including salaries and wages, allowances, minimum wage entitlements, superannuation, annual leave, sick leave, long service leave, carer’s leave, rostered-days-off, redundancy entitlements and public holiday entitlements. We are responsible for these entitlements whether they are paid or unpaid;
⦁ Payment of all taxes and duties in respect of a Worker’s remuneration and entitlements, including payroll tax;
⦁ Payment and maintenance of relevant insurances, including public liability insurance for the sum of $20M and worker’s compensation insurance in respect of Workers supplied;
⦁ Provision or cost of all personal protective equipment (PPE) which may be required under the respective occupational health and safety legislation; and
⦁ Compliance and the cost of compliance with all Industrial Laws with respect to Workers supplied.
⦁ You must:
⦁ Conduct a safety induction for all Workers, and ensure that all Workers complete such safety induction, prior to any Worker commencing work with You;
⦁ Provide and maintain safe working environments and work systems for the Workers in accordance with all applicable occupational health and safety legislation and Industrial Law to ensure that there are no risks to health and safety of Workers;
⦁ Provide (or pay Us to supply) any non-regulation PPE that You or Your safety policies and procedures require to manage a Site-specific occupational hygiene or safety hazard;
⦁ Provide adequate supervision, information and direction of Workers to ensure that the Labour Hire work is carried out correctly and in a safe manner;
⦁ Provide or pay for Site-specific costs or allowances, including travel, meals and tools required by Workers; and
⦁ Otherwise take full care and control of all Workers and their duties for the duration of the Labour Hire period from the time that the Worker first commences work for the Labour Hire period.
⦁ Workers are deemed to have been supplied and delivered by Us under these Terms when they commence the period of Labour Hire.
⦁ Labour Hire is not exclusive to You and We may provide Labour Hire to other customers that are similar or the same as You.
1. Supply and Delivery of Services
⦁ The Services are provided to You with all due skill and care in accordance with Our professional and ethical standards.
1. Access and Information
⦁ Provision of the Services is dependent on Your timely co-operation and performing Your obligations under this Contract, including promptly providing to Us with all reasonable care, skill and attention:
⦁ accurate and complete instructions, materials and information that We reasonably require;
⦁ access to files, records and information technology systems, premises, reasonable working facilities for Us to use, third parties where applicable and people (whether senior executives, management or staff) with the relevant skills and experiences;
⦁ all resources that are reasonably necessary to ensure timely approval, development and sign-off of all project plans, licenses and permits, specifications, accounts and deliverables, including inspecting and reviewing all reports and other work product prepared by Us;
⦁ permission to access third party premises and use any third-party information or intellectual property rights We require to perform the Services. You remain responsible for any and all obligations with respect to agreements for such third-party services and warrant that You have obtained or agree that You will obtain all third-party consents and security clearances needed.
Your Obligations and Acknowledgements
⦁ You acknowledge and agree that:
⦁ Our Services are limited to the particular issue, advice, consultation, project, solution, tasks, activities or other scope of work that We have agreed to carry out and the specific circumstances that apply in the course of Our engagement;
⦁ We are entitled to rely on the accuracy of and completeness of the information (written or oral) provided to, or obtained by, Us, whether the information is provided by, or obtained from, You, Your officers or staff, or Your advisors or consultants. You acknowledge and agree that We will not verify the accuracy or completeness of such information, unless provided for in the Services;
⦁ Any Services provided are based on information that is made available or is available to us at the time. You acknowledge and agree that actual results may be different from any objectives, budgets, projections or forecasts since anticipated events frequently do not occur as expected and the variation may be material;
⦁ You must promptly notify Us of any change in information that may have a material impact on the Services or if anything occurs after information is provided to Us which renders such information untrue, unfair or misleading. If required by Us, You must take all necessary steps to correct any announcement, communication or document issued which contains, refers to or is based upon, such information;
⦁ You must not assume that We have information either provided by others on Your behalf or known by any of Our related entities not engaged in the provision of the Services. You must advise Us of any information that You require Us to consider in providing the Services;
⦁ Our original Services (including advice, plans, solutions, licenses, permits and reports) may not be applicable or appropriate in circumstances where a project is delayed, or is to be repeated, or an apparently similar project is to be undertaken, or arises in the future. In those circumstances, We will rely on You to ask Us to review any original advice already given;
⦁ We are not required to update any advice, plan or report (whether oral or written) for events occurring after the provision of Services, unless otherwise agreed between the parties;
⦁ If We provide general advice, the application of that advice to any particular circumstances may be affected by anything that We are not aware of. Specific advice should always be sought, and all material information provided to Us in relation to a particular situation;
⦁ You may only rely on our final agreed Services. You may not rely on oral advice, draft plans or presentations, interim advice or reports, or any other draft or interim documents provided by Us. If We provide Our advice in abbreviated or shortened format at Your request, You acknowledge that You will not receive all the information You would have had We provided a full written report or had more time in which to carry out the Services.
⦁ Estimates of time for completion of the Services are made in good faith and given on the assumption that We receive the required co-operation and commitment from You and other organisations, government bodies, advisers and consultants. If You do not provide, or delay in providing that co-operation, We may charge additional fees and expenses that are incurred as a result (in addition to any other rights We may have).
⦁ Our staff may carry out procedures at Your premises when providing the Services. When Our staff are working at Your premises, You must provide them with a working environment which is safe, healthy and complies with any relevant work health and safety legislation and government regulation.
⦁ You must ensure that appropriate back-up, security (including anti-virus and anti-spyware software), licensing and virus checking procedures are in place for any computers You use in connection with the Services or provided to Us. You acknowledge and agree that We will not be responsible for any security breach, including fraud, which affects Your computers due to any virus or malicious software.
Engaging Third Parties
⦁ We may engage (as Your agent or as principal) other organisations or experts to assist in providing the Services. If You do not consent to the engagement of these third parties, We may decline to provide all or part of the Services.
⦁ Where You ask Us to engage third parties on Your behalf (as Your agent), We may ask You to provide Us with sufficient funds in advance to pay their fees. You agree that We do so strictly as Your agent and You take full responsibility for all applicable costs and fees regardless of whether We introduced You to the third party. We are entitled to rely on advice obtained from such third parties without further investigation or consideration. We are not responsible for the quality, content or effect of such advice, and You release Us from all liability arising from that advice unless otherwise agreed by Us in writing.
Clauses 7 – 10 outline how we get paid including making payment, credit accounts and security
⦁ PAYMENT AND CREDIT
⦁ If We provide you with Services and/or Labour Hire, You must:
⦁ Ensure that each Worker maintains a timesheet recording the number of hours worked and where those hours are worked;
⦁ In situations where We reasonably require time records, ensure that time sheets are maintained for Services (including vehicles used in delivering Services and time worked for trades); and
⦁ Approve timesheets each week by checking the timesheets for accuracy and having Your authorised representative sign the timesheets.
⦁ Unless the parties agree differently in writing, You must pay for Goods, Labour Hire and Services on or before the Due Date.
⦁ At Our discretion, We may provide You with a discount on the price of Goods, Labour Hire or Services where You pay Our invoice at least 7 days before the Due Date. Any offer to discount will be displayed on Our invoice and does not apply automatically.
⦁ If You believe You have a set-off or claim against Us (including any query, dispute or claim about timesheets), You cannot withhold any payment on that basis without Our prior written consent.
⦁ If You do not pay for Goods, Labour Hire and Services by the Due Date, We may:
⦁ Charge You a reasonable surcharge for processing payments made by credit card, at an amount advised by us from time to time;
⦁ Charge You interest on all overdue accounts at a rate which is 4% higher than the cash rate last published by the Reserve Bank of Australia as at the Due Date, calculated and payable daily and compounded from the due date until the invoice is paid in full. The parties agree that this interest charge is not a penalty, but a true measure of damages incurred by Us;
⦁ Require You to pay cash on delivery of any further Goods, Labour Hire and Services, or suspend any further deliveries of Goods, or cease supplying Goods, Labour Hire and Services to You;
⦁ Demand Your immediate payment of all outstanding monies;
⦁ Charge You a reasonable fee if any payment is dishonoured or returned by Your financial provider (or where we are otherwise unable to process any payment from Your financial provider);
⦁ Credit any payments received from You first against any interest charges and costs and all such charges will be payable on demand; and
⦁ Preclude You from participating in any special deals, discounts, bonus payments redemptions, rebates and all other incentive programs until Your account is no longer overdue.
⦁ You may apply for a Credit Account with Us to hire or purchase Goods and to purchase Labour Hire and Services. We have no obligation to provide or continue to provide credit facilities to You. You are not entitled to credit facilities until You receive an approved Credit Account with Us.
⦁ A Credit Account must only be used by You, which means it cannot be assigned, transferred or made available for use by any other entity or person (including by a subsequent purchaser of You) without Our prior written consent. Any credit limit placed on Your Credit Account is for Our administrative purposes only and does not constitute a term of this or any other contract You have with Us.
⦁ If You exceed the credit limit placed on Your Credit Account, We may require You to make immediate payment on Your Credit Account to return Your Credit Account to the credit limit before placing any further Orders.
⦁ You also authorise Us to debit Your Credit Account with the price of Goods, Labour Hire and Services supplied to You and all other amounts owed by You to Us (including fees and interest payable under the Contract).
⦁ We may apply any payments You make to Us towards any debt You owe Us. We may also set-off any credit amount that We owe to You against any debt owed to Us by You.
⦁ Time is of the essence in relation to this section. This section survives expiry or termination of these Terms.
⦁ RISK AND OWNERSHIP
⦁ Unless the parties agree differently in writing, all risk in Goods, Services and Labour Hire passes to You when:
⦁ Goods are delivered to You (or Your agent, representative or nominated carrier) or when the Goods are collected by You (or Your agent or nominated carrier);
⦁ Services are delivered to You; and/or
⦁ Workers commence the period of Labour Hire.
⦁ Legal ownership of hired Goods does not pass to You whatsoever. Even if You go into external administration during the hire period, We (or any third party sub-hirer, as the case may be) retain title to the hired Goods at all times. Your rights to use hired Goods are as bailee only and You are not entitled to offer, sell, assign, sub-let, mortgage, pledge or otherwise deal with hired Goods in any way which is inconsistent with Our (or any third-party sub-hirer) ownership of the hired Goods.
⦁ Legal ownership of Goods sold does not pass to You until We have received all amounts owing by You on any account whatsoever with Us including any Additional Expenses.
⦁ Until legal ownership of purchased Goods passes to You, Goods sold are held by You for Us as bailee. You must store the Goods separately from Your own or anyone else’s Goods. Storage must be in a way that clearly identifies the Goods as Our property and prevents the Goods from being damaged or spoiled.
⦁ You may resell any Goods sold before legal ownership passes to You, provided that You:
⦁ Resell the Goods to a third party in the ordinary course of business;
⦁ Act in any transaction as Our fiduciary agent;
⦁ Hold the proceeds of sale of Goods on trust for Us and in a separate account with separate records;
⦁ Account to Us for those proceeds or any other payment made by a third party for any sale of the Goods; and
⦁ Allow us to inspect any records of any payments received for Goods.
⦁ If You do not pay for any Goods by the Due Date or You suffer an Insolvency Event, then We may repossess the Goods wherever they are located. You irrevocably grant Us (including Our agents or any other nominated representative) an unrestricted right and licence to enter any premises occupied by You without notice for the purpose of identifying and repossessing any of the Goods. We reserve these repossession rights without being liable to You or any other third party in any way.
⦁ You must insure all Goods at Your own cost and expense. Insurance must be to the full extent of the price paid or payable for those Goods and remain valid at all times. This includes, but is not limited to, between the time that risk in the Goods passes to You and the date that any title in the Goods passes to You.
⦁ SECURITY OVER REAL ESTATE
⦁ To secure payment of all monies You owe Us for the supply of Goods, Labour Hire and Services, You:
⦁ Charge all of Your interest in real and personal property (including all property acquired after the date of these Terms) in favour of Us, whether or not a demand has been made on You (“Charge”). This Charge constitutes a General Security Agreement for the purposes of the PPSA;
⦁ Authorise and consent to Us taking all actions necessary to give effect to the Charge, including the lodgement of a caveat upon any title of Your real property, whether held in Your own right or as trustee of any trust, or any other security document; and
⦁ Agree to deliver to Us within seven (7) days of written demand a Memorandum of Mortgage in registrable form. You agree that any amount payable to Us payable on demand incorporating the covenants contained in Memorandum No. Q860000 registered at the Land Registry Services New South Wales as amended to comply with and reflect any appropriate laws in the jurisdiction(s) where You have any beneficial interest in real and personal property and as amended appropriately to comply with any formal requirements of registration.
⦁ Irrevocably appoint Us and any person nominated by Us severally as Your attorney, with power to execute, sign and deliver (which delivery may be subject to such terms and conditions as the attorney thinks fit) such caveat, mortgage or other security document to effect the Charge granted under this part.
⦁ PERSONAL PROPERTY SECURITIES ACT 2009 (CTH)
⦁ These Terms constitute a security agreement for the purposes of the PPSA (“Security Agreement”) and create a security interest in the Goods supplied by Us from time to time and any proceeds of the hire or sale of Goods to secure payment for the Goods (“Security Interest”).
⦁ Each sale or supply of Goods by Us under these Terms is subject to the Security Agreement for the purposes of the PPSA.
⦁ We may lodge a financing statement on the Personal Property Securities Register (“PPSR”) in respect of the Security Interest in the Goods and the proceeds of the hire or sale of the Goods, including as a purchase money security interest (as that term is defined in the PPSA) (“PMSI”), pursuant to these Terms.
⦁ You must do all things, provide all information and sign all documents that are necessary and reasonably required to enable Us to acquire a perfected Security Interest in the Goods, including for the purposes of:
⦁ Ensuring that any Security Interest created under, or provided for, by these Terms:
⦁ Attaches to the collateral that is intended to be covered by that Security Interest; and
⦁ Is enforceable, perfected and otherwise effective; and
⦁ Has the priority required by Us.
⦁ Enabling Us to prepare and register a financing statement or financing change statement;
⦁ Enabling Us to register a PMSI under the PPSA; and
⦁ Enabling Us to exercise and maintain any of the Our rights or powers in connection with any such Security Interest.
⦁ If You dispose of the Goods, You must:
⦁ Immediately pay any proceeds to Us in reduction of all amounts owing by You to Us, which We may apply towards amounts owing by You to Us in such order as specified by subsection 14(6)(c) of the PPSA, unless otherwise specified by Us in writing; and
⦁ Not allow any other charge or security interest to exist over those proceeds without Our written consent if that security interest could rank ahead of Our Security Interest.
⦁ If a higher-priority security interest does arise in the Goods despite Your obligations under this section, You must:
⦁ Ensure that You receive cash proceeds for the Goods of at least equal to the market value of the Goods; and
⦁ Immediately pay those proceeds to Us in reduction of all amounts owing by You to Us, which We may apply towards amounts owing by You to Us in such order as We see fit.
⦁ You must not change Your name, structure, status or partnership, or assign or sell Your business to another party, or initiate any change to any registered documentation, or act in any other manner which would impact on Our registered Security Interest without Our prior written consent. You agree that Your liability under these Terms is not affected by such an event until a new application for credit in Your new entity name as restructured or changed is made and approved by Us in writing.
Exclusion of Notices and Other Obligations
⦁ To the extent permitted by law and for the purposes of sections 115(1) and 115(7) of the PPSA:
⦁ We do not need to comply with sections 95, 118, 121(4), 125, 129(2), 129(3), 130, 132(3)(d) or 132(4); and
⦁ Sections 142 and 143 are excluded;
⦁ For the purposes of section 115(7) of the PPSA, We do not need to comply with sections 132 and 137(3).
⦁ To the extent permitted by law, You agree to waive:
⦁ Your rights to receive any notice that is required by any provision of the PPSA (including a notice of a verification statement) or any other law before a secured party or a receiver exercises a right, power or remedy; and
⦁ Any time period that must otherwise lapse under any law before a secured part or a receiver exercises a right, power or remedy.
⦁ If the law that requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the law allows to be agreed (whichever is the longer).
Provision of Information
⦁ You agree not to exercise Your rights to make any request of Us under section 275(6) of the PPSA, to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section.
⦁ The parties must not disclose information of the kind mentioned in section 275(1) of the PPSA, except in the circumstances where:
⦁ Disclosure is required by sections 275(7)(b) to (e) of the PPSA; and/or
⦁ We disclose information of a kind mentioned in section 275(1) of the PPSA to the extent that We are not doing so in response to a request made by an “interested person” (as defined in section 275(9) of the PPSA) pursuant to section 275(1) of the PPSA.
⦁ Notwithstanding the obligations of this section, You shall only authorise the disclosure of information for the purposes of section 275(7)(c) of the PPSA, or request information under section 275(7)(d) of the PPSA, if We approve such disclosure or request for information in writing.
⦁ Nothing in this part prevents any disclosure of information by Us that We believe is reasonably necessary to comply with any other obligations that We may have under the PPSA.
⦁ If You default in the timely performance of any obligation owed to Us, We may enforce the Security Interest by exercising all or any of Our rights under these Terms, the general law and the PPSA.
⦁ Nothing in this part limits or is limited by any other provision of these Terms and Conditions or any other agreement between the parties.
Clauses 11 – 13 set out how to deal with issues that may arise, including returns, loss or damage of hire equipment and retention of workers
⦁ If You think any Goods supplied are defective, damaged, missing or misdelivered, You must notify Us in writing and within seven (7) days of delivery/collection of those Goods. You must take all steps necessary to mitigate any Loss arising from any defect in the Goods supplied. You will be deemed to accept the Goods (including any responsibility for any defects) if You do not notify Us in accordance with these Terms.
⦁ All notifications under this section must be accompanied by:-
⦁ Proof of purchase or hire;
⦁ Written details of the alleged defect including photographs;
⦁ Appropriate documentation (such as installation and maintenance records); and
⦁ You must allow Us or Our authorised representatives access to the Goods for inspection.
⦁ Unless We agree differently in writing, We are not required to accept returned Goods from You.
⦁ If We agree to accept Goods by return, You must provide Your proof of purchase or hire for the Goods being returned. We may charge You reasonable restocking, disposal or repacking charges which We incur from the Goods being returned.
⦁ Any Goods which are not in original or resaleable condition cannot be returned.
⦁ You are responsible for any Additional Expenses associated with any return of Goods
⦁ To the extent permitted by law, We give no warranties beyond the manufacturers or supplier’s warranties for Goods. Goods which are not manufactured by Us are subject solely to the warranties (if any) specified by the manufacturers or the third-party suppliers to Us.
⦁ If You are not satisfied with the work done by a particular Worker, You must notify Us within 24 hours of that Worker commencing the period of Labour Hire. In our absolute discretion, We may agree to replace the Worker within 2 business days of being notified by You.
⦁ If We do agree to replace a Worker, We will withdraw any further charges associated with a Worker who has been replaced for any period after notice was given in accordance with this section. However, We may still require You to pay the Deposit for any Worker who has been replaced.
⦁ LOST, STOLEN, DAMAGED OR BROKEN-DOWN HIRE EQUIPMENT
⦁ You are responsible for any loss, theft or damage to hired Goods during the hire period for any cause whatsoever, except where that loss, theft or damage has been directly caused by Us.
⦁ If the hired Goods are lost, stolen or damaged, you are responsible for:
⦁ The cost of repairs; or
⦁ Replacement (if the hired Goods cannot be repaired, which will be determined at Our reasonable discretion); and
⦁ Continuing hire charges until the hired Goods are repaired or replaced, unless otherwise determined by Us; and
⦁ Other Additional Expenses associated with the repair and/or replacement of the hired Goods.
⦁ If the hired Goods break down or become unsafe to use during the hire period then:
⦁ You must:
⦁ Immediately stop using the hired Goods and notify Us;
⦁ Take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the hired Goods;
⦁ Take all steps necessary to prevent further damage to the hired Goods; and
⦁ Not repair or attempt to repair the hired Goods without Our prior written consent.
⦁ We must:
⦁ Repair the hired Goods or provide suitable substitute hire Goods as soon as practicable after, but only where the hired Goods have broken down or become unsafe to use through no act or omission by You; and
⦁ Not impose hire charges for that portion of the hire period the Goods could not be used for, nor any costs associated with any repair or replacement of the hired Goods.
⦁ If the hired Goods break down or become unsafe to use due to an act or omission by You, including Your misuse, recklessness or negligence of the hired Goods, then You are liable for all costs for the repair or replacement and continuing hire charges while the Goods are being repaired and/or replaced.
⦁ RETENTION OF WORKERS BY YOU
⦁ You (including any of your representatives, employees, officers and agents) must not employ any Worker, or offer to employ any Worker whether directly or indirectly, without our prior written consent.
⦁ You must pay Us a Permanent Placement Fee where:
⦁ You (including any of Your subsidiaries or related entities) have contact with a Worker through or in connection with the Labour Hire; and
⦁ You or any of Your subsidiaries or related entities employs or engages a Worker, whether directly or indirectly; and
⦁ The employment or engagement of the relevant Worker occurs during the period of Labour Hire, or within 12 months of the period of Labour Hire ending.
Clauses 14 & 15 outline the exclusions, limitations of liability and indemnities applicable to each party under these Terms
⦁ LIMITS AND EXCLUSIONS
⦁ Neither party excludes or limits the application of any statute (including the Competition and Consumer Act 2010 (Cth) as amended from time to time (“the Act”)), where to do so would contravene that statute or cause any provision of these Terms to be void. Nothing in these Terms modifies, restricts or excludes the conditions, warranties, and undertakings and other legal rights under the Act and any other law applicable to the supply of Goods, Labour Hire and Services which cannot be modified, restricted or excluded. Except as expressly set out in the Act, these Terms or a separate warranty document, We make no warranties or other representations under or in connection with these Terms, and in that regard Our liability is limited to the fullest extent permitted by law.
⦁ To the extent permitted by law, all implied terms, guarantees, conditions and warranties are excluded from these Terms, including:
⦁ All conditions and warranties as to the quality or merchantability of Goods, Labour Hire and Services or their ﬁtness for any particular purpose (whether express or implied and even if that purpose is made known to Us). You are responsible for ensuring that Goods, Labour Hire and Services are suitable for Your intended use; and
⦁ No sale under these Terms constitutes a sale by sample or description. You acknowledge that a sample Good may vary from the Goods supplied and that any description of Goods is for identification purposes only.
⦁ You agree that You have not relied on any inducement, representation or statement made by Us or on Our behalf in purchasing or hiring Goods, Labour Hire and Services.
⦁ To the extent permitted by law, Our liability arising from breach of guarantee or warranty will be limited to Our choice of:
⦁ replacement of the Goods, Labour Hire or Services, or cost to replace the Goods, Labour Hire or Services; or
⦁ re-supply of the Goods, Labour Hire or Services, or cost to re-supply equivalent Goods, Labour Hire or Services; or
⦁ repair of the Goods, or cost to repair the Goods; or
⦁ reimbursement of some or all of the price paid by You for the Goods, Labour Hire or Services.
⦁ In any other situation, including but not limited to Our breach of these terms, tort law or negligence, then Our liability to You will not exceed the price of the Goods, Labour Hire or Services supplied by Us (to the extent that is permitted by law).
⦁ We are not liable to You for any loss of proﬁts, loss of sales, loss of market, loss of goodwill or reputation, third party claims, incidental or special damages or indirect or consequential loss of any kind.
⦁ We are not liable to You if:-
⦁ Goods, Labour Hire or Services have not been paid for;
⦁ Goods have been abused, misused or neglected by you;
⦁ We cannot establish any defect in Goods after inspection;
⦁ You have used Goods and/ or Services other than for the purposes for which they were designed or intended;
⦁ Goods have been repaired, altered or modified by someone other than Us and without our consent;
⦁ Goods have been subject to abnormal conditions, including environment, temperature, water, fire, humidity, pressure, stress or similar;
⦁ A defect in Goods has arisen due to Your failure to install, use, assemble, handle and maintain the Goods in accordance with Our care and maintenance recommendations or industry-accepted standards;
⦁ Your claim is for general wear and tear;
⦁ The Services are incorrect due to Your failure to comply with information and access obligations in these Terms.
⦁ Neither party will be liable for any breach of these Terms which is wholly or partly caused by something outside the party’s reasonable control, including war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, shortage of supplies or labour, pandemics, epidemics, storm or tempest, theft, vandalism, civil commotions or accidents of any kind. This exclusion does not include Your obligation to pay for Goods, Labour Hire and Services.
⦁ To the extent permitted by law, You indemnify Us against and You must pay Us for any Loss that We may suffer or incur as a result of any act or omission by You (or any entity or person that You are responsible for) in relation to the Goods, Labour Hire and Services and/or these Terms, including but not limited to any breach of these Terms by You, Your negligence, Your failure to perform the obligations in these Terms and any claim made by You against Us.
⦁ You must indemnify Us for and hold Us harmless (or Our agents, employees or contractors) from:
⦁ All reasonable legal costs which We incur as a result of any breach, act or omission by You under these Terms, however that breach, act or omission arises. This includes, but is not limited to, legal or mercantile agent fees on an indemnity basis in the recovery or attempted recovery of any overdue amount for Goods, Labour Hire and Services and any action taken to secure any charge;
⦁ Any stamp duty or other government rates, taxes (including GST) or charges levied on or in connection with the Credit Account, supply of Goods, Labour Hire and Service, and any deed of guarantee, indemnity and charge;
⦁ Any loss and damage incurred by Us as a result of You cancelling your Order after 24 hours, including but not limited to any Additional Expenses;
⦁ All costs associated with the registration, maintenance and withdrawal of any Security Interest created under these Terms;
⦁ Any and all Loss arising out of delivery of Goods (including any loss or damage caused by delivering the Goods to an unattended site, any loss and damage suffered as a result of third party carriers nominated by You and any loss or damage suffered by Us as a result of any property damage or personal injury caused by the delivery and unloading the Goods);
⦁ Any loss, damage and costs associated with a warranty claim where no defect is found;
⦁ Any and all Loss arising out of Your (or Your agent, employee, contractor or other representative’s) attendance at Our premises;
⦁ Any and all Loss arising out of Your failure to provide a safe, suitable and compliant nominated delivery site for Goods and Services, or workplace for the Workers supplied for Labour Hire, except to the extent that We (or Our agents, employees or contractors) have committed an act of negligence, breach of the law or breach of the Terms;
⦁ Any loss or damage occasioned to Goods between the time that risk in the Goods passes to You and the time that the full price of the Goods is paid by You to Us.
⦁ Any liability that We incur in connection with Our reliance on information provided by You or on Your behalf which is inaccurate, incomplete or misleading, or Your failure to provide Us with relevant information.
⦁ This indemnity is a continuing obligation which is separate and independent from your other obligations under these Terms or at law and this indemnity survives termination of these Terms. For clarity, this indemnity does not apply to Loss which is caused by Our breach of these Terms.
Clauses 16 & 17 outline how to resolve any disputes and terminate these Terms, if necessary
⦁ DISPUTE RESOLUTION
⦁ If a dispute arises between the parties, the following procedure applies:
⦁ Either party may give the other a notice of the dispute. This means that the dispute must be dealt with in accordance with this section;
⦁ Either party must not commence legal proceedings (except proceedings seeking interlocutory relief) about the dispute unless the dispute has been referred for resolution under this paragraph;
⦁ Either party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute, pending the completion or termination of the procedure set out in this paragraph;
⦁ If a dispute is notified, each party must immediately refer the dispute to its senior management. Those representatives must endeavour to resolve the dispute as soon as possible, but at least within 30 days (or other period as agreed between the parties);
⦁ At Our sole discretion, We may elect to resolve any dispute by mediation via the Australian Commercial Disputes Centre (ACDC) before commencing arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which operate at the time the matter is referred to ACDC. The ACDC Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. This paragraph survives termination of these Terms;
⦁ The parties must continue to perform their respective obligations under these Terms, even if a dispute exists (including the referral of the dispute to mediation);
⦁ The parties must keep all information relating to any dispute confidential for the purposes of dispute resolution, unless otherwise required by law or at the direction of a court of competent jurisdiction. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
⦁ Our termination rights are:
1. What We can do
1. We can:
⦁ Suspend or cancel delivery of Goods, Labour Hire and Services or any current Order(s) for the supply of Goods, Labour Hire and Services; and/or
⦁ Suspend or terminate Your Credit Account; and/or
⦁ Require immediate payment of the balance of any Credit Account, invoices or any other amounts due and payable whether or not the Due Date has expired; and/or
⦁ Register a default with any credit reporting agency, where applicable; and/or
⦁ Enforce Our rights under any Security Interest; and/or
⦁ Suspend or terminate the contract created by these Terms
⦁ When We can exercise Our termination rights:
1. When We can do those things
⦁ When You have not paid for Goods, Labour Hire and Services by the Due Date; and/or
⦁ You exceed the limit of Your Credit Account; and/or
⦁ You breach a material term of these Terms; and/or
⦁ Either of the parties suffer a Force Majeure Event which delays or prevents performance of the whole or any part of these Terms; and/or
⦁ You allow distress to be levied or a judgment, order or security to be enforced, or to become enforceable against Your property including under the PPSA; and/or
⦁ An Insolvency Event occurs.
⦁ Otherwise, either party may terminate these Terms:
⦁ Immediately by written notice if the other party is in breach of a material term of these Terms and the breach is not rectified within 7 days of the termination notice; or
⦁ In all other circumstances, by giving the other party 14 days’ written notice.
⦁ If a termination notice is given to a party for breach of these Terms, the terminating party may also:
⦁ recover any of its property and all related data, documentation and records in the possession, custody or control of the party at fault;
⦁ recover any sums paid to the party at fault on any account or for services which have not been fulfilled or performed;
⦁ subject to any limitation on liability applicable to the party at fault, recover from the party at fault the amount of any loss or damage sustained as a consequence of the termination, including loss of the benefits which the performance of these Terms would have conferred on the terminating party;
⦁ be regarded as discharged from any further obligations under these Terms; and
⦁ pursue any additional or alternative remedies provided by law.
Clause 18 outlines how We deal with the personal information
Clause 19 and 20 outline general information applicable to the Terms
⦁ Any clauses which are expressed to or are, by their nature, intended to survive expiry or termination of these Terms will survive expiry or termination of these Terms for any reason.
⦁ A failure to exercise or a delay in exercising any right, power or remedy under these Terms does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
⦁ If any part of these Terms becomes void or unenforceable for any reason, then that part will be severed and, to the extent possible, all remaining parts continue with full force and effect without being affected by the severance of any other parts.
⦁ These Terms may be executed in any number of counterparts, each of which when executed and delivered constitutes a duplicate original, but all counterparts together constitute one agreement.
⦁ In addition to any other method of service provided by law, a notice may be sent by prepaid post, facsimile, email or courier to the address of a party as that address set out in the Contract or subsequently notified. A notice has no legal effect unless it is in writing.
⦁ A notice is deemed to have been delivered and received on the day if by hand, courier, email or fax, or otherwise on the second Business Day after posting.
⦁ ELECTRONIC COMMUNICATIONS
⦁ In addition to any other delivery method, You agree to receive Invoices via email.
⦁ You agree to accept service of notices under the Building and Construction Industry Security of Payment Act 2002 (Vic) as amended from time to time, or any like or similar legislation that may be applicable in the State or Territory where the goods were delivered to You, via e-mail (in addition to any and all other forms of service authorised under the legislation, or regulations made by the Act).
⦁ You agree that email communications from Us to You constitute an “electronic communication” within the meaning of the Electronic Transactions (Victoria) Act 2000 (“the Act”).
⦁ You agree that the receipt and service of notices via email is “an information system for the purpose of receiving electronic communications” within the meaning of the Act.
⦁ You agree that evidence of the “dispatch” (within the meaning of the Act) by Us of an email is also prima facie evidence of the “receipt” of the email by You within the meaning of the Act. Unless the contrary is proven the time of receipt will be deemed to be twenty (20) seconds after the time of the “dispatch” of the email.