TERMS OF TRADE (TRADING TERMS) POLICY
Table of Contents
1.1. “Contractor” shall mean Incite Security Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Incite Security Pty Ltd.
1.2. “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by the Contractor to the Client.
1.3. “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4. Materials” shall mean Materials:
(a) required to complete the Works; and/or
(b) supplied by the Contractor to the Client (and where the context so permits shall include any supply of Works as hereinafter defined) and are as described on the invoices, quotation, order or any other forms as provided by the Contractor to the Client.
1.5. “Equipment” shall mean all Equipment including any accessories supplied on hire by the Contractor to the Client (and where the context so permits shall include any supply of Works). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by the Contractor to the Client.
1.6. “Works” shall mean all Works supplied by the Contractor to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Materials as defined above).
1.7. “Price” shall mean the price payable for the Materials as agreed between the Contractor and the Client in accordance with clause 4 of this contract.
2. Terms - The Competition Consumer Act 2010 (Cwth) or the State Fair Trading Acts (Consumer Laws (“FTA”) and application of these terms and conditions to consumers
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
2.2 Clause 11 (Defects), clause 12 (Returns) and clause 13 (Warranty) may NOT apply to the Client where the Client is purchasing Materials or Works not for resale or hire where the Price of the Materials or Works does not exceed $40,000, or where the Price of the Materials or Works does exceed $40,000 and are of a kind ordinarily acquired for personal, domestic or household use or consumption, or where the Client is in any other way a consumer within the meaning of the TPA or the FTA of the relevant state or territories of Australia.
Any instructions received by the Contractor from the Client for the supply of Materials and/or the Client’s acceptance of Materials supplied by the Contractor shall constitute acceptance of the terms and conditions contained herein.
3.1. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.2. Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of the Contractor.
3.3. The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s physical or postal address, email address, or business practice).
3.4. The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.
3.5. Materials are supplied by the Contractor only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
4.1. At the Contractor’s sole discretion, the Price shall be either:
(a) as indicated on invoices provided by the Contractor to the Client in respect of Materials supplied; or
(b) the Contractor’s quoted Price (subject to clause 4.2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days.
4.2. The Contractor reserves the right to change the Price in the event of a variation to the Contractor’s quotation. Any variation from the plan of scheduled Works or specifications of the Materials (including, but not limited to, for additional works required due to hidden or unidentifiable difficulties beyond the reasonable control of the Contractor or as a result of increases to the Contractor in the cost of Materials and labour) will be charged for on the basis of the Contractor’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3. At the Contractor’s sole discretion:
(a) a non-refundable deposit may be required; or
(b) detailed progress payment claims may be submitted by the Contractor, in accordance with the Contractor’s specified payment schedule at intervals not less than fortnightly for work performed up to the end of each fortnight. Such payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; or
4.4. Payment for all Clients shall be due thirty (30) days net from the date of invoice for the goods or the services supplied against the job number for which the invoice is raised.
4.5. Time for payment for the Materials shall be of the essence and will be stated on the invoice or any other forms. If no time is stated, then payment shall be due seven (7) days following the date of the invoice.
4.6. Payment will be made by cash, or by cheque, or by credit card (plus a surcharge, if applicable of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and the Contractor.
4.7. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Materials
5.1. At the Contractor’s sole discretion delivery of the Materials shall take place when:
(a) the Client takes possession of the Materials at the Contractor’s address; or
(b) the Client takes possession of the Materials at the Client’s nominated address (in the event that the Materials are delivered by the Contractor or the Contractor’s nominated carrier); or
(c) the Client’s nominated carrier takes possession of the Materials in which event the carrier shall be deemed to be the Client’s agent.
5.2. At the Contractor’s sole discretion, the costs of delivery are included in the Price.
5.3. The Client shall make all arrangements necessary to take delivery of the Materials whenever they are tendered for delivery.
5.4. In the event that the Client is unable to take delivery of the Materials as arranged then the Contractor shall be entitled to charge a reasonable fee for redelivery.
5.5. Delivery of the Materials to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.6. The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated.
5.7. The Contractor shall not be liable for any loss or damage whatsoever due to failure by the Contractor to deliver the Materials (or any of them) promptly or at all where due to circumstances beyond the control of the Contractor.
6. Equipment Hire
6.1. The Equipment shall at all times remain the property of the Contractor and is returnable on demand by the Contractor. In the event that the Equipment is not returned to the Contractor in the condition in which it was delivered the Contractor retains the right to charge the Price of repair or replace equipment.
6.2. The Client shall;
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.
(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by the Contractor to the Client.
6.3. The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self-insure, the Contractor’s interest in the Equipment and agrees to indemnify the Contractor. against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
7.1 If the Contractor retains ownership of the Materials nonetheless, all risk for the Materials passes to the Client on delivery.
7.2 Where the Client expressly requests the Contractor to deliver the Materials to an unattended location then such Materials shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all.
7.3 If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Client, the Contractor is entitled to receive all insurance proceeds payable for the Materials. 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.
7.4 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify the Contractor immediately upon any proposed changes. The Client agrees to indemnify the Contractor against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 4.2.
7.5 The Client acknowledges that in the event asbestos, or any other toxic substances are discovered at the Worksite that it is their responsibility to ensure the safe removal of the same.
7.6 The Client further agrees to indemnify the Contractor against any costs incurred by the Contractor as a consequence of such discovery. Under no circumstances will the Contractor handle removal of asbestos product.
7.7 The Contractor is not responsible for the removal of rubbish from or clean-up of the building/construction site/s, unless otherwise agreed; this is the responsibility of the Client.
8.1. The Client shall ensure that the Contractor has clear and free access to the site at all times to enable them to undertake the Works. The Contractor shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Contractor.
9. Underground Locations
9.1. Prior to the Contractor commencing the Works the Client must advise the Contractor of the precise location of all underground services on the site and clearly mark the same. The underground mains and Works the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
9.2. Whilst the Contractor will take all care to avoid damage to any underground services the Client agrees to indemnify the Contractor in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 9.1.
10.1 The Contractor and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid the Contractor all amounts owing for the particular Materials; 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.
10.2 Receipt by the Contractor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Contractor’s ownership or rights in respect of the Materials shall continue.
10.3 It is further agreed that:
(a) where practicable the Materials shall be kept separate and identifiable until the Contractor shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Materials shall pass from the Contractor to the Client the Contractor may give notice in writing to the Client to return the Materials or any of them to the Contractor. Upon such notice the rights of the Client to obtain ownership or any other interest in the
Materials shall cease; and
(c) the Contractor shall have the right of stopping the Materials in transit whether or not delivery has been made; and
(d) if the Client fails to return the Materials to the Contractor then the Contractor or the Contractor’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Materials are situated and take possession of the Materials; and
(e) the Client is only a bailee of the Materials and until such time as the Contractor has received payment in full for the Materials then the Client shall hold any proceeds from the sale or disposal of the Materials, up to and including the amount the Client owes to the Contractor for the Materials, on trust for the Contractor; and
(f) the Client shall not deal with the money of the Contractor in any way which may be adverse to the Contractor; and
(g) the Client shall not charge the Materials in any way nor grant nor otherwise give any interest in the Materials while they remain the property of the Contractor; and
(h) the Contractor can issue proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials may not have passed to the Client; and
(i) until such time that ownership in the Materials passes to the Client, if the Materials are converted into other products, the parties agree that the Contractor will be the owner of the end products.
11. Defects, Errors and Omissions
11.1 The Client shall inspect the Works on completion (or Materials on delivery) and shall within seven (7) days (time being of the essence) notify the Contractor of any alleged defect, error or omission, 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 (Materials) within a reasonable time following such notification if the Client believes the Works (Materials) are defective in any way. If the Client shall fail to comply with these provisions the Works (Materials) shall be presumed to be free from any defect or damage. For defective Works (Materials), 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 (Materials), rectifying the Works or repairing the Materials except where the Client has acquired Works (Materials) as a consumer within the meaning of the Competition Consumer Act 2010 (Cwth) or the Fair Trading Acts (Consumer Laws) of the relevant state or territories of Australia. The Client is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Works (Materials), rectification of the Works, replacement of the Works (Materials), or repair of the Materials.
12.1 The Contractor may (at their sole discretion) accept the return of Materials for credit, but this may incur a handling fee of up to ten percent (10%) of the value of the returned Materials plus any freight costs.
12.2 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 11.1; and
(b) the Contractor has agreed in writing to accept the return of the Materials; and
(c) the Materials are returned at the Client’s cost within five (5) days of the delivery date; and
(d) the Contractor will not be liable for Materials which have not been stored or used in a proper manner; and
(e) the Materials 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 reasonably possible in the circumstances.
12.3 Non-stock list items or Materials made to the Client’s specifications are under no circumstances acceptable for credit or return.
13.1 Subject to the conditions of warranty set out in clause 13.2 the Contractor warrants that if any defect in any workmanship of the Contractor becomes apparent and is reported to the Contractor within three (3) months of the date of delivery (time being of the essence) then the Contractor will either (at the Contractor’s sole discretion) replace or remedy the workmanship.
13.2 The conditions applicable to the warranty given by clause 13.1 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 Materials; 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 Materials otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Materials 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.
(b) the warranty shall cease, and the Contractor shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Contractor’s consent.
(c) in respect of all claims the Contractor shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
13.3 For Materials not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Contractor shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.
14. Intellectual Property
14.1 Where the Contractor has designed, drawn or written Materials for the Client, then the copyright in those designs and drawings and documents shall remain vested in the Contractor, and shall only be used by the Client at the Contractor’s discretion.
14.2 The Client warrants that all designs or instructions to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.
14.3 The Client agrees that the Contractor may utilise images of Materials designed, created or drawn by the Contractor for the purposes of advertising, marketing, or entry into any competition.
15. Default and Consequences of Default
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by the Contractor.
15.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in pursuing the debt including legal costs on a solicitor and own client basis and the Contractor’s collection agency costs.
15.4 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 Materials to the Client and any of its other obligations under the terms and conditions. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
15.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
15.6 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable in the event that:
(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 into 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 the Client or any asset of the Client.
16. Security and Charge
16.1 Despite 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 these terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Contractor (or the Contractor’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(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 client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Contractor or the Contractor’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 16.1.
17. Compliance with Laws
17.1 The Client and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
17.2 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Australia’s Electrical Safety Regulations 2002, AS/NZS 3000:2007 Companion Standards and the Electricity Regulations 1997. All of the cabling work will comply with the Australian Communication Industry Wiring Rules technical standard AS / ACIF S009:2006.
17.3 The Client shall obtain (at the expense of the Client) all licenses, approvals, applications and permits that may be required for the works, and that are not included in the project documents provided by the Contractor.
17.4 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
18.1 The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Materials at any time before the Materials are delivered by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2 In the event that the Client cancels delivery of Materials the Client shall be liable for any loss incurred by the Contractor (including, but not limited to, any loss of profits) up to the time of cancellation.
18.3 Cancellation of orders for Materials made to the Client’s specifications or non-stockist items will definitely not be accepted, once production has commenced.
19. Privacy Act 1988
19.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for the Contractor to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by the Contractor.
19.2 The Client agrees that the Contractor may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(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/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
19.3 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).
19.4 The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other purposes as shall be agreed between the Client and Contractor or required by law from time to time:
(a) the provision of Materials; and/or
(b) the marketing of Materials by the Contractor, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Materials; and/or
(e) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(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 Materials.
19.5 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;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
19.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that the Contractor is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(f) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(g) information that, in the opinion of the Contractor, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
(h) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(i) that credit provided to the Client by the Contractor has been paid or otherwise discharged.
20.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia and are subject to the jurisdiction of the courts of Western Australia.
20.3 The Contractor shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions.
20.4 In the event of any breach of this contract by the Contractor the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Materials.
20.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
20.6 The Contractor may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.7 The Client agrees that the Contractor may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Contractor notifies the Client of such change.
20.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
20.9 The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’s right to subsequently enforce that provision.
The Managing Director periodically reviews and updates the Policy to maintain its relevance to all stakeholders; this policy may be made available to relevant parties in required circumstances.