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1.INTERPRETATION AND DEFINITIONS
1.1 In this document, unless the context requires otherwise:
- the singular includes the plural, the plural includes the singular and any gender includes each other gender;
- the word “person” includes a firm, a body corporate, an unincorporated association or an authority;
- a reference to a person or a Party includes that person’s or Party’s executors, administrators, successors in title and assigns;
- an agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and severally;
- an agreement, representation or warranty on the part of two or more persons binds them jointly and severally;
- a reference to a thing includes a reference to the whole or any part of that thing;
- if a word or phrase is defined, cognate words and phrases have a corresponding meaning;
- headings are for convenience only and do not affect the interpretation of this document.
1.2 “The Business” means Elemental Resources Pty Ltd (ACN 608 858 368) t/a Gold Coast Plumbing Company.
“The Client” means the person identified on the attached quote.
“The Services” means maintenance and plumbing services.
2. THE AGREEMENT
By engaging the Business to provide the Services to the Client, the Client has read, understands and agrees to these terms and conditions. These terms and conditions form the entire Agreement between the Client and the Business relating to the Services. The Client should take independent legal advice if it requires it.
3. SCOPE OF SERVICES
The Business will provide to the Client the maintenance services (“Services”) described in these Terms and Conditions of Service and any accompanying documents.
4. SKILL AND CARE
In providing the Services, the Business will exercise the degree of skill, care and diligence normally exercised by professional maintenance workers performing the Services.
5. CHANGE OF SCOPE OF SERVICES
The scope of Services described in any accompanying documents is based on facts known to the Business at the time of preparation of the documents, including any client-supplied information. Subsequent information may indicate that the scope or timing of the Services must be redefined or the Client may request changes to the scope or timing of the Services. If there is a change in the scope, order or timing of the Services, the Business will be entitled to amend the price by an amount reasonable in the circumstances. The scope of Services may be varied:
- at the request of the Client;
- at the request of the Business. If the necessity for the variation is due to the fault of the Business the Client will not be liable for any increase in the contract price; or
- due to a requirement of a council or other statutory authority relating to the Services which could not reasonably have been foreseen by the Business or the Client.
- The basis of the variation needs the prior agreement of the parties.
- If the time for completion of the Services will be delayed by the variation the Business must include in the notice an estimate of the additional time required.
- Variations shall be subject to these Terms and Conditions of Service.
The Client must pay the Business the fee set out in the accompanying documents.
- Cancellations within 24 hours of booked attendance will attract a full service fee charge.
- Refunds for cancellations when deposits have been paid for services not provided will be considered after full costs and expenses incurred by the Business have been recovered.
- Payment in full is required to the attending Business representative upon completion of the services being provided to the Client.
- Payment in full may be requested at the Business’s discretion prior to Service commencing.
Reasonable costs and expenses incurred by the Business in the event of dispute in establishing the basis of its engagement with the Client and all costs and expenses (including but not limited to legal expenses) of and connected with the recovery of all fees costs interest and expenses properly charged or incurred by the Business shall be recoverable from the Client.
7. TERMS OF PAYMENT
The Client must pay all amounts invoiced within 15 days after the date of the invoice. Moneys not paid within that period shall attract interest from the date of invoice until payment, at a rate of 10% per annum.
8. DELAYS AND CHANGES IN THE LAW
If events beyond the control of the Client or of the Business result in delay to the time agreed for performance of the Services, that time will be amended to the extent necessary to compensate for the delay. The Business will be entitled to an extension of time for providing the Services equal to the delay. The Business may adjust the price to reflect any increase in costs or loss incurred as a result of the delay unless the Business causes the delay. If, after the date of engagement of the Business under these Terms and Conditions of Service there is any change to laws, licenses, permits, approvals or statutory authorities relevant to the Services and that change directly or indirectly increases the costs of performing the Services or results in any loss being incurred by the Business, then the price shall be increased accordingly.
The Business may suspend or terminate its obligations under this Agreement, in the event of:
- Monies payable to the Business hereunder being outstanding for more than 30 days including any late payment penalties;
- Other substantial breach by the Client of its obligations hereunder, which breach has not been remedied within 30 days of written notice from the Business requiring the breach to be remedied;
- Failure by the Client formally to accept by written acknowledgement variations to the relevant contract necessitated by changes to the Services requested by the Client or by a change in circumstances beyond the control of the Business;
- Any act or omission by the Client reasonably determined by the Business to be detrimental to its reputation or interests.
- Upon giving the Client 30 days written notice of its intention to do so.
10. TIME LIMIT FOR MAKING CLAIMS
After the expiration of one (1) year from the date of invoice in respect of the final amount claimed by the Business pursuant to Clause 5, the Business shall be discharged from all liability in respect of the Services whether under the law of contract, tort or otherwise.
11 WARRANTY, LIABILITY AND INDEMNITY
- The Business does not make any warranty, nor accept any liability in relation to the performance or non-performance of the Services except to the extent, if any, required by the law or specifically provided for in these Terms and Conditions of Service or the accompanying documents. Notwithstanding, and limiting the provisions of this clause and clause 8, the Client acknowledges and agrees that no servant of the Business will have any separate or individual liability to the Client. The Client will indemnify and hold the Business harmless against all claims, costs and demands by third parties in respect of the Services.
- If the Client elects to have the Business install any equipment that the Client has obtained by its own means, the Business will be not be liable for any damage that the equipment causes in relation to the Client’s property or person.
- In the event that the equipment provided by the Client does not satisfactorily perform to the Business’ expectations to complete the Services, the Client will bear the costs (reasonably determined by the Business), of any additional labour required by the Business to reinstall or replace the faulty equipment to complete the Services.
12 NO ASSIGNMENT
The Client may not transfer, sublet or assign any of its rights or obligations under these Terms and Conditions of Service without the prior written consent of the Business.
The Business will maintain insurance coverage for public liability insurance in accordance with legal requirements and the Business’ own business requirements. Certificates evidencing such insurance coverage will be provided to the Client on request.
14. PPSR (PERSONAL PROPERTY SECURITY REGISTER)
- In this clause ‘Financing Statement’, ‘Financing Change Statement’, ‘Security Agreement’ and ‘Security Interest’ has the meaning given to it by the PPSA (Personal Property Security Act 2009 (Cth).
- Upon agreeing to these terms and conditions by signing the attached quote the Client acknowledges and agrees that these Terms and Conditions of Service constitute a Security Agreement for the purposes of the PPSA and creates a Security Interest in all products that have been supplied and that will be supplied in the future by the Business.
- The Client undertakes to promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which we may reasonably require to:
- Register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Personal Property Securities Register;
- Register any other document required to be registered by the PPSA;
- Correct a defect in a Statement; and
- Indemnify, and upon demand reimburse, the Business for all expenses incurred in registering a Financing Statement or Financing Change Statement on the Personal Property Securities Register established by the PPSA or releasing any Products charge.
The Client undertakes to:
- Not register a Financing Change Statement in respect of a security interest without the prior written consent of the Business; and
- Not register, or permit to be registered, a Financing Statement or a Financing Change Statement in relation to the products in favour of a third party without the prior written consent of the Business.
15. GOODS AND SERVICES TAX (GST)
This clause applies if ‘GST’ is imposed in respect of any supply or deemed supply or of any other act, matter or thing by the Business under or in connection with this Agreement (a ‘supply’). The Client shall pay to the Business in respect of a supply the amount which is necessary to ensure that the Business received a net amount (after payment of the ‘GST’ imposed in respect of that Supply) that is equal to the full amount it would have received under this Agreement had the ‘GST’ not been imposed.
The Business will provide to the Client a tax invoice or other document, or any information or thing, as required by law.
This Clause takes precedence over any other term of this Agreement to the extent of any inconsistency. In this Clause, ‘GST’ means a goods and services tax, value added tax, or a similar tax levied or imposed in relation to a supply (or deemed supply) of any goods, property, services or any other thing.
16. AMENDMENT OF TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions of Serivce may be amended only in writing signed by the representatives of the Business and the Client. These Terms and Conditions of Service and the accompanying documents set out the whole of the agreement for the provision of the Services.
17. ACCEPTANCE OF THESE TERMS AND CONDITIONS OF SERVICE
It is agreed and accepted by the Client that these Terms and Conditions of Service will bind the Client upon its acceptance of the Business’ contract for the supply of the Services.
18. GOVERNING LAW
This Agreement shall be governed by the law of the State of Queensland and the Business and the Client consent to the non-exclusive jurisdiction of the Courts of the State of Queensland.