Terms of trade

1           Definitions and interpretation

1.1       Definitions

Additional Charge means:

(a)        fees or charges for additional work performed at the Customer's request or reasonably required as a result of the Customer's conduct, calculated in accordance with the Supplier's then current prices; and

(b)        expenses incurred by the Supplier, at the Customer's request or reasonably required as a result of the Customer's conduct.

Customer means the person who places and Order or who is identified on a Quote or Order as the customer and includes the Customer's agents and permitted assigns.

Goods means any goods supplied by the Supplier including those supplied in the course of providing Services.

Loss includes, but is not limited to, costs (including party to party legal costs and the Supplier's legal costs), expenses, lost profits, award of damages, personal injury and property damage.

Order means a purchase order for Goods or Services placed by a Customer and as varied in writing from time to time by the parties.

Quote means a written description of the Goods or Services to be provided, an estimate of the Supplier's charges for the performance of the required work and an estimate of the time frame for the performance of the work.

Services means the services to be provided by the Supplier to the Customer in accordance with these terms of trade.

Supplier means Benjamin James Dawson ABN 74 475 946 718 trading as Bay and Basin Mobile Windscreens and includes the Supplier's agents and permitted assigns.

2           General

(a)        These terms of trade apply to all transactions between the Customer and the Supplier relating to the provision of Goods and Services. This includes all quotations, contracts and variations. These terms of trade take precedence over terms of trade contained in any document of the Customer or elsewhere.

(b)        The variation or waiver of a provision of these terms or a party's consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.

(c)         The Supplier may amend any details in a Quote by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.

3           Quotes

(a)        The Supplier may provide the Customer with a Quote. Any Quote issued by the Supplier is valid for one (1) day from the date of issue unless otherwise stated on the Quote.

(b)        Unless otherwise expressly agreed in writing, a Quote does not include delivery or installation of the Goods.

(c)         Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary material and instructions to the Supplier.

(d)        Following provision of a Quote to the Customer, the Supplier is not obliged to commence work until the Quote has been accepted by the Customer in writing.

(e)        The Supplier reserves the right to amend any Quote before the Order has been completed to take into account any rise or fall in the cost of completing the Order. The Supplier will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote to these terms of trade.

(f)          An indication in a Quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law (ACL), this estimate is not binding upon the Supplier.

4           Orders

(a)        Every Order by the Customer for the provision of Goods or Services must be submitted in writing on the Supplier's standard Order form (unless otherwise agreed).

(b)        Any costs incurred by the Supplier in reliance on incorrect or inadequate information provided by the Customer in an Order may result in the imposition of an Additional Charge.

(c)         Placement of an Order by the Customer signifies acceptance by the Customer of these terms of trade.

(d)        The Supplier may in its absolute discretion refuse to provide Goods or Services.

(e)        An Order cannot be cancelled without the prior written consent of the Supplier. Where an Order is cancelled, the Customer indemnifies the Supplier against any Losses incurred by the Supplier as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.

5           Variations

(a)        The Customer may request that its Order be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect.

(b)        The Supplier reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates.

(c)         The Supplier has an automatic extension of time for the provision of the Goods or Services equal to the delay caused by the variation.

6           Invoicing and payment

(a)        The Supplier may, in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:

(i)          prior to commencing the provision of the Goods or Services, for an amount equal to the cost of the Goods and Services and Additional Charges; or

(ii)         upon completion of the provision of the Goods or Services, or a portion thereof, or any time after such completion, for an amount equal to the cost of the Goods and Services and Additional Charges.

(b)        The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:

(i)          the amount for the Goods or Services (or both) as set out in the Quote and any Additional Charges; or

(ii)         where no Quote has been provided by the Supplier, the Supplier’s usual charges for the Goods or Services (or both).

(c)         The Customer must pay an invoice issued by the Supplier to the Supplier within 3 days, or such other period as stated on the invoice.

(d)        If any invoice is due but unpaid, the Supplier may withhold the provision of any further Goods or Services until overdue amounts are paid in full.

(e)        The Supplier may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.

(f)          The Customer is not entitled to retain any money owing to the Supplier regardless of any default or alleged default by the Supplier of these terms of trade, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods or Services. Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the ACL.

(g)        The Customer is to pay the Supplier on demand interest at the rate of 12% per year on all overdue amounts owed by the Customer to the Supplier, calculated daily.

(h)        In addition to interest payable under clause 6(g), the Customer is required to pay the Supplier an accounts administration fee of $100 plus GST to cover the Supplier’s administration expenses arising from the Customer’s failure to pay the invoice. This amount is payable on demand and is a genuine pre-estimate of the loss suffered by the Supplier arising from the Customer’s failure to pay the invoice.

(i)          All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under these terms of trade.

(j)          The Customer and the Supplier agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.

7           Additional Charges

(a)        The Supplier may require the Customer to pay Additional Charges in respect of Costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Goods or Services within the specified time frame (if any).

(b)        The imposition of Additional Charges may also occur as a result of:

(i)          cancellation by the Customer of an Order where cancellation results in Loss to the Supplier;

(ii)         Government or council taxes or charges; or

(iii)        additional work required by the Customer or any other occurrence which causes the Supplier to incur costs in respect of the Customer's Order.

8           Acceptance of Goods

If the Customer fails to advise the Supplier in writing of any fault in Goods or failure of Goods to accord with the Customer's Order within 3 days of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer's Order. Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the ACL.

9           Title and risk

(a)        Risk in Goods passes to the Customer immediately upon delivery.

(b)        Property and title in Goods supplied to the Customer under these terms of trade do not pass to the Customer until all money (including money owing in respect of other transactions between the Supplier and the Customer) due and payable to the Supplier by the Customer have been fully paid.

10        Agency and assignment

(a)        The Customer agrees that the Supplier may at any time appoint or engage an agent to perform an obligation of the Supplier arising out of or pursuant to these terms of trade.

(b)        The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under these terms of trade.

(c)         The Customer is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of the Supplier.

11        Default by Customer

(a)        Each of the following occurrences constitutes an event of default:

(i)          the Customer breaches or is alleged to have breached these terms of trade for any reason (including, but not limited to, defaulting on any payment due under these terms of trade) and fails to remedy that breach within 5 days of being given notice by the Supplier to do so;

(ii)         the Customer, being a natural person, commits an act of bankruptcy; or

(iii)        the Customer, being a corporation, is subject to:

(A)        a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;

(B)        a receiver, receiver and manager or an administrator under part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer's property and undertaking;

(C)       the entering of a scheme of arrangement (other than for the purpose of restructuring); and

(D)       any assignment for the benefit of creditors.

(b)        Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:

(i)          terminate these terms of trade;

(ii)         terminate any or all Orders and credit arrangements (if any) with the Customer;

(iii)        refuse to deliver Goods or provide further Services; or

(iv)       retain (where applicable) all money paid by the Customer on account of Goods or Services or otherwise.

(c)         In addition to any action permitted to be taken by the Supplier under paragraph 11(b), on the occurrence of an event of default all invoices will become immediately due and payable.

12        Privacy

(a)        The Customer authorises the Supplier to collect, retain, record, use and disclose consumer and/or commercial information about the Customer, in accordance with the Privacy Act 1988, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by the Supplier, a debt collector, credit reporting agency and any other individual or organisation which maintains credit references and/or default listings.

(b)        The Supplier may give information about the Customer to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports or lodging consumer and commercial defaults on the Customer’s credit file. This information may be given before, during or after the provision of credit to the Customer and will be in accordance with the Privacy Act 1988 and subsequent amendments.

13        Exclusions and limitation of liability

(a)        The Customer expressly agrees that use of the Goods and Services is at the Customer's risk. To the full extent allowed by law, the Supplier's liability for breach of any term implied into these terms of trade by any law is excluded.

(b)        All information, specifications and samples provided by the Supplier in relation to the Goods or Services are approximations only and, subject to any guarantees under the ACL, small deviations or slight variations from them which do not substantially affect the Customer's use of the Goods or Services will not entitle the Customer to reject the Goods upon delivery or to make any claim in respect of them.

(c)         The Supplier gives no warranty in relation to the Services provided or supplied. Under no circumstances is the Supplier or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods or Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:

(i)          any Goods or Services supplied to the Customer;

(ii)         any delay in supply of the Goods or Services; or

(iii)        any failure to supply the Goods or Services.

(d)        Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods or Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer's reliance on such advice, recommendation, information, assistance or service.

(e)        To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on terms of trade, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.

(f)          The ACL may give to the Customer certain consumer guarantees, which cannot be restricted, limited or varied.

14        Indemnity

(a)        The Customer indemnifies and keeps indemnified the Supplier, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Supplier or, for which the Supplier is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these terms of trade.

(b)        This includes, but is not limited to, any legal costs incurred by the Supplier in relation to meeting any claim or demand or any party or party legal costs for which the Supplier is liable in connection with any such claim or demand.

(c)         This provision remains in force after the termination of these terms of trade.

15        Force majeure

(a)        If circumstances beyond the Supplier's control prevent or hinder its provision of the Goods or Services, the Supplier is free from any obligation to provide the Goods or Services while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.

(b)        Circumstances beyond the Supplier's control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

16        Miscellaneous

(a)        These terms of trade are governed by the laws of the state of New South Wales and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state of New South Wales.

(b)        These terms of trade and any Quotes and written variations agreed to in writing by the Supplier represent the whole agreement between the parties relating to the subject matter of these terms.

(c)         These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.

(d)        In entering into these terms of trade, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.

(e)        If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.

(f)          A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.