1.1 “Contractor” shall mean JAKT Group Pty Ltd and its successors and assigns.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis.
1.4 “Quotation” shall mean the Contractors’ signed Quotation referring to these Conditions
1.5 “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 Works as defined supra).
1.6 “Price” shall mean the cost of the Works as agreed between the Contractor and the Client subject to clause 4 of this contract.
1.7 “Variations” shall mean a change of works requested after the original quotation has been accepted.
1.8 “Works” shall mean Works supplied by the Contractor to the Client (and where the context so permits shall include any supply of Services as hereinafter defined).
2.1 Any instructions received by the Contractor from the Client for the supply of Works and/or the Client’s acceptance of Works supplied by the Contractor shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Client’s shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Contractor.
2.4 None of the Contractor’s agents or representatives are authorised to make any representations, statements, conditions, or agreements not expressed by the manager of the Contractor in writing nor is the Contractor bound by any such unauthorised statements.
2.5 The Client undertakes to give the Contractor not less than fourteen (14) days prior written notice of any proposed 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).
3.1 The Works are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Contractor to the Client.
4. Price & Payment
4.1 At the Contractor’s sole discretion.
(a) The Price shall be as indicated on invoices provided by the Contractor to the
Client in respect of Works and Works supplied; or
(b) The Price shall be the Contractor’s current Price, at the date of delivery of the
Works, according to the Contractor’s current Price list; or
(c) The Price of the Works shall (subject to clause 4.2) be the Contractor’s quoted
Price which shall be binding upon the Contractor provided that the Client shall
accept in writing the Contractor’s quotation within thirty (30) days.
4.2 Any variation from the plan of scheduled works or specifications will be charged for based on 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.
4.3 At the Contractor’s sole discretion a deposit is required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Works and shall become immediately due and payable.
4.4 The Client must pay the Contractor the Contract Price in accordance with the Contract and pay the Deposit to the Contractor within two (2) Business Days of signing the Contract
4.5 Final payment for the Works shall be stated in a invoice and payable on receipt of invoice or otherwise stated on the invoice.
4.6 Time for payment for the Works shall be of the essence and will be stated on the invoice, quotation, or any other order forms. If no time is stated, then payment shall be on delivery of the Works.
4.7 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Contractor.
4.8 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Contractor.
5. Delivery of Works / Services
5.1 Delivery of the Works shall be made to the Client’s address. The Client shall make all arrangements necessary to take delivery of the Works whenever they are tendered for delivery, or delivery of the Works shall be made to the Client at the Contractor’s address.
5.2 Delivery of the Works to a carrier, either named by the Client or failing such naming to a carrier at the discretion of the Contractor for the purpose of transmission to the Client, is deemed to be a delivery of the Works to the Client.
5.3 The Contractor may deliver the Works by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.4 The Client shall take delivery of the Works tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.5 The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated.
5.6 The Contractor shall not be liable for any loss or damage whatever due to failure by the Contractor to deliver the Works (or any of them) promptly or at all.
6.1 Either party may request a variation of the Works.
6.2 The Contractor may, at its discretion, agree to any variation requested by the Client.
6.3 The Works may be varied by:
(a) an agreement by the parties to add work to, or omit work
(b) the Contractor’s compliance with a statutory requirement that necessitates a variation to the Works, or
(c) the Contractor having to overcome a Latent Condition that affects to Contractor’s performance of the Works
6.4 The Contractor must ensure that any variation to the Works is put in writing in a variation document, and a copy given to the Client, within five (5) Business Days from the date of agreement, and before any work the subject of the variation is started.
6.5 Any variation document to be provided by the Contractor under this Contract must:
(a) be readily legible
(b) describe the variation
(c) state the date of the request for the variation
(d) state the Contractor’s estimate of any period of delay to the progress of the Works as a result of the variation
(e) state any adjustment to the Contract Price because of the variation, or the method for calculation the adjustment, and
(f) state when any adjustment to the Contract Price because of the variation to be:
(i) if the variation results in a decrease in the Contract Price, accounted for or,
(ii) if the variation results in a increase in the Contract Price, paid (which must not be before any work the subject of the variation is started)
6.6 The Client must give the Contractor a written notice agreeing to the variation within five (5) Business Days after receiving the variation document provided by the Contractor under Clause 6.4
6.7 The Contractor must not start to carry out any Work the subject of a variation until the Contractor receives the written notice from the Client under Clause 6.5 agreeing to the variation.
6.8 Where a variation results in a increase to the Contract Price, the Client must pay the Contractor the amount of the increase in accordance with the time stated in the variation document.
6.9 The Contractor is under no obligation to start to carry out any variation until such time the Client produces satisfactory evidence to the Contractor the Client has the financial capacity to pay the variation.
6.1 If the Contractor retains property in the Works nonetheless, all risk for the Works passes to the Client on delivery.
6.2 If any of the Works are damaged or destroyed prior to property in them passing to the Client, the Contractor is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Works), to receive all insurance proceeds payable for the Works. This applies whether the Price has become payable under the Contract. 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.
7. Client’s Disclaimer
7.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Contractor and the Client acknowledges that he buys the Works relying solely upon his own skill and judgement and that the Contractor shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Client and shall not be transferable to any subsequent Client.
8.1 The Client shall inspect the Works on delivery and shall within fourteen (14) days of delivery 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 Works within a reasonable time following delivery if the Client believes the Works are defective in any way. If the Client shall fail to comply with these provisions, the Works shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.2 For defective Works, which the Contractor has agreed in writing that the Client is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) replacing the Works or repairing the Works provided that:
(a) the Client has complied with the provisions of clause 8.1;
(b) the Works are returned at the Client’s cost within fourteen (14) days of the delivery date.
(c) the Contractor will not be liable for Works which have not been stored or used in a proper manner.
(d) the Works are returned in the condition in which they were delivered and with all packaging material, brochures, and instruction material in as new condition as is reasonable possible in the circumstances.
9.1 Subject to the conditions of warranty set out in Clause 9.2 the Contractor warrants that the product is free from manufacturing defects for a period of 10 years. If a product with a manufacturing defect becomes apparent and is reported to the Contractor within 10 years of the date of delivery (time being of the essence) then the Contractor will either (at the Contractor’s sole discretion) repair the defect or replace the product. The conditions applicable to the warranty given by Clause 9.1 are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
i) Failure on the part of the Client to properly maintain any Works; or
ii) Failure on the part of the Client to follow any instructions or guidelines provided by the Contractor; or
iii) Any use of any Works otherwise than for any application specified on a quote or order form; or
iv) The continued use of any Works after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
v) Fair wear and tear, any accident or act of God; or
vi) Scratching, abrasion, chipping or any other damage or deterioration caused by impact, accident, or misuse; or
vii) Deterioration of the metal substrate through oxidization or rusting
viii) Excessive condensation and/or foreign matter ie dust, environmental matter, animal excrement; or
ix) Normal weathering, including loss of gloss and colour of painted surfaces; or
x) Attack from chemical agents, fumes, liquids or solids; or
xi) Installation of the Product less than 1km from marine or industrial influences.
(b) The liability under the Warranty does not include or extend to:
i) Labour costs associated with the removal or repair of the defective Product, or installation of the replacement Product; or
ii) Injury to persons, damage to property, loss of income, profit or business, or any other indirect loss arising from or caused in any way by the defective Product.
(c) The warranty shall cease and the Contractor shall thereafter in no circumstances be liable under the terms of the warranty if the product is repaired, altered or overhauled without the Contractor’s consent.
(d) In respect of all claims the Contractor shall not be liable to compensate the Client for any delay in either replacing or repairing the workmanship/Works or in accurately assessing the Client’s claim.
(e) This Warranty does not cover against aesthetic surface corrosion including oxidization and red rust on aluminium, steel or stainless-steel products.
9.2 For Works not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Works. The Contractor shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11. Lien & Stoppage in Transit
11.1 Where the Contractor has not received or been tendered the whole of the price, or the payment has been dishonored, the Contractor shall have:
(a) a lien on the Works.
(b) the right to retain them for the price while the Contractor is in possession of them.
(c) a right of stopping the Works in transit whether delivery has been made or ownership has passed; and
(d) a right of resale,
(e) the foregoing right of disposal, provided that the lien of the Contractor shall continue despite the commencement of proceedings or judgement for the price having been obtained.
12. Default & Consequences of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
12.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Contractor from and against all the Contractor’s costs and disbursements including on a solicitor and own Contractor basis and in addition all of the Contractor’s nominees costs of collection.
the 12.3 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Contractor may suspend or terminate the supply of Works 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 exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the Works or services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
12.5 In the event that:
(a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of Client or any asset of the Client, then without prejudice to the Contractor’s other remedies at law
(i) the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Contractor shall, whether due for payment, immediately become payable.
13.1 It is the intention of the Contractor and agreed by the Client that property in the Works shall not pass until:
(a) The Client has paid all amounts owing for the Works, and
(b) 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, and that the Works shall be kept separate until the Contractor shall have received payment and all other obligations of the Client are met.
13.2 It is further agreed that:
(a) Until such time as ownership of the Works shall pass from the Contractor to the Client the Contractor may give notice in writing to the Client to return the Works or any of them to the Contractor. Upon such notice the rights of the Client to obtain ownership or any other interest in the Works shall cease.
(b) If the Client fails to return the Works 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 Works are situated and take possession of the Works, without being responsible for any damage thereby caused.
(c) The Client is only a bailee of the Works and until such time as the Contractor has received payment in full for the Works then the Client shall hold any proceeds from the sale or disposal of the Works on trust for the Contractor.
(d) The Client shall not deal with the money of the Contractor in any way which may be averse to the Contractor.
(e) 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 honored, cleared or recognised and until then the Contractor’s ownership of rights in respect of the Works shall continue.
(f) The Client shall not charge the Works in any way nor grant nor otherwise give any interest in the Works while they remain the property of the Contractor.
(g) The Contractor may require payment of the Price or the balance of the Price due together with any other amounts due from the Client to the Contractor arising out of these terms and conditions, and the Contractor may take any lawful steps to require payment of the amounts due and the Price.
(h) The Contractor can issue proceedings to recover the Price of the Works sold notwithstanding that ownership of the Works may not have passed to the Client.
(i) Until such time the Client has the Contractor’s authority to convert the Works into other products and if the Works are so converted, the parties agree that the Contractor will be the owner of the end products.
14. Security & Charge
14.1 Notwithstanding anything to the contrary contained herein or any other rights which the Contractor may have howsoever:
(a) Where the Client and/or the Guarantor (if any) is the owner of land, realty 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, realty or any other asset to the Contractor or the Contractor’s nominee to secure all amounts and other monetary obligations payable under the 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 released once all payments and other monetary obligations payable hereunder have been met.
(b) 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 Contractor basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Client and/or the Guarantor (if any) do hereby 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 execute mortgages and charges (whether registrable or not) including such other terms and conditions as the Contractor and/or the Contractor’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Client and/or the Guarantor in any land, realty or asset in favour of the Contractor and in the Client’s and/or Guarantor’s name as may be necessary to secure the said Client’s and/or Guarantor’s obligations and indebtedness to the Contractor and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute
all or any documents in the Contractor’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
The Contractor may cancel these terms and conditions or cancel delivery of Works at any time before the Works are delivered by giving written notice. The Contractor shall not be liable for any loss or damage whatever arising from such cancellation.
16. Privacy Act 1988
16.1 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.
16.2 The Client and/or the Guarantor/s agree that the Contractor may exchange information about Client and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Client.
(b) To notify other credit providers of a default by the Client.
(c) To exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and
(d) To assess the credit worthiness of Client and/or Guarantor/s.
16.3 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).
16.4 The Client agrees that Personal Data 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:
(a) provision of Services & Works.
(b) marketing of Services and or Works by the Contractor, its agents or distributors in relation to the Services and Works.
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services/Works.
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services and Works.
16.5 The Contractor may give, information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17. Unpaid Contractor’s Rights to Dispose of Works
17.1 In the event that:
(a) the Contractor retains possession or control of the Works; and
(b) payment of the Price is due to the Contractor; and
(c) the Contractor has made demand in writing of the Client for payment of the Price in terms of this contract; and
(d) the Contractor has not received the Price of the Works, then, whether the property in the Works has passed to the Client or has remained with the Contractor, the Contractor may dispose of the Works and may claim from the Client the loss to the Contractor on such disposal.
18.1 The Contractor must effect and maintain all policies of insurance, including, for example, WorkCover in respect of its workers, required to be effected by the Contractor under any statute or other law or legal requirement
18.2 The Contractor must effect and maintain a Contract Works Policy for the full insurable value of the Works in the names of the Client, the Contractor and any lender (is so required by the Client) from the Date for Commencement until the Date of Practical Completion or the date the Clients takes Possession of the Works, whichever is earlier.
18.3 The Contractor must effect and maintain from the Date for the Commencement until the expiry of the Defects Liability Period, a public liability insurance policy covering liabilities to third parties in the respect of personal injury, death, and loss or damage to property, except the Works, arising out of, or in connection with the Works.
18.4 The policy referred to in Clause 18.3 must:
(a) indemnify the Client as principal in respect of any occurrence insured by the policy and arising out of the negligence of the Contractor in the performance of the Works, and
(b) provide cover for an amount which is not less than $10 million or any one occurrence and in aggregate.
18.5 To the maximum extent permitted by law, the Contractor is not liable, and dos not provide any indemnity, to the Client, the Client’s employees or agents, or any other person for whom the Client is responsible for any injury or death to any person, or loss or damage to any property, which arises as a result of any act or omission by the Client, or any person for whom the Client is responsible, and in respect of such claims the Client must indemnify the Contractor.
18.6 The Contractor must, on written request from the Client, provide evidence of any insurance policies required to be effected by the Contractor under the Contract with in five (5) Business Days.
18.7 The Client must insure the Works from the Date of Practical Completion or the date of the Clients takes Possession of the Works, whichever is earlier.
18.8 If the Works involve the alteration, addition to, or repair of an existing building, then the Client must effect and maintain an insurance policy for the duration for this Contract which provides cover for the full replacement value of any existing building affected by the Works, and any contents thereof, against any loss or damage, and must provide a copy of the policy to the Contractor if the Contractor makes a request in writing.
19.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforce-ability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 All Works supplied by the Contractor are subject to the laws of Queensland and the Contractor takes no responsibility for changes in the law which affect the Works supplied.
19.3 The Contractor shall be under no liability whatever to the Client for any indirect 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.
19.4 In the event of any breach of this contract by the Contractor the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Contractor exceed the Price of the Services.
19.5 The Client shall not set off against the Price amounts due from the Contractor.
19.6 The Contractor may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.7 The Contractor reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Contractor notifies the Client of such change.
19.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm, or other event beyond the reasonable control of either party.