termsoftrade

Terms of Trade

Definition

General
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.
2. These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Victoria.
3. Leak Masters 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 Leak Masters of these terms and conditions.
4. In the event of any breach of this contract by Leak Masters the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Services.
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 Leak Masters nor to withhold payment of any invoice because part of that invoice is in dispute.
6. Leak Masters may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
7. The Client agrees that Leak Masters 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 Leak Masters notifies the Client of such change.
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.
9. The failure by Leak Masters to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Leak Masters right to subsequently enforce that provision.
Building and Construction Industry Security of Payment Act 2002
1. At Leak Masters’ sole discretion, if there are any disputes or claims for unpaid Services and/or Materials then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.
2. Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.
Unpaid Seller’s Rights
1. Where the Client has left any item with Leak Masters for repair, modification, exchange or for Leak Masters to perform any other Services in relation to the item and Leak Masters has not received or been tendered the whole of the Price, or the payment has been dishonoured, Leak Masters shall have:
  1. a lien on the item;
  2. the right to retain the item for the Price while Leak Masters is in possession of the item;
  3. a right to sell the item.
2. The lien of Leak Masters shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
Privacy Act 1988
1. The Client and/or the Guarantor/s agree for Leak Masters 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 Leak Masters.
2. The Client and/or the Guarantor/s agree that Leak Masters may exchange information about the Client and the Guarantor/s 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:
  1. to assess an application by Client; and/or
  2. to notify other credit providers of a default by the Client; and/or
  3. 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
  4. to assess the credit worthiness of Client and/or Guarantor/s.
3. The Client consents to Leak Masters being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
4. The Client agrees that personal credit information provided may be used and retained by Leak Masters for the following purposes and for other purposes as shall be agreed between the Client and Leak Masters or required by law from time to time:
  1. provision of Services; and/or
  2. marketing of Services by Leak Masters, its agents or distributors in relation to the Services; and/or
  3. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services; and/or
  4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
  5. 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.
5. Leak Masters may give information about the Client to a credit reporting agency for the following purposes:
  1. to obtain a consumer credit report about the Client; and/or
  2. allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
Cancellation
1. Leak Masters may cancel any contract to which these terms and conditions apply or cancel the Services at any time before the Services are completed by giving written notice to the Client. On giving such notice Leak Masters shall repay to the Client any sums paid in respect of the Price, less any amounts owing for Services already performed. Leak Masters shall not be liable for any loss or damage whatsoever arising from such cancellation.
2. In the event that the Client cancels the Services, then the Client shall be liable for any loss incurred by Leak Masters (including, but not limited to, any amounts owing for Services already performed and any loss of profits) up to the time of cancellation.
Security and Charge
1. Despite anything to the contrary contained herein or any other rights which Leak Masters may have howsoever:
  1. 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 Leak Masters or Leak Masters’ 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 Leak Masters (or Leak Masters’ 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.
  2. should Leak Masters elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Leak Masters from and against all Leak Masters’ costs and disbursements including legal costs on a solicitor and own client basis.
  3. the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Leak Masters or Leak Masters’ 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 12.1.
Default and Consequences of Default
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 Leak Masters’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
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 Leak Masters.
3. If the Client defaults in payment of any invoice when due, the Client shall indemnify Leak Masters from and against all costs and disbursements incurred by Leak Masters in pursuing the debt including legal costs on a solicitor and own client basis and Leak Masters’ collection agency costs.
4. Without prejudice to any other remedies Leak Masters may have, if at any time the Client is in breach of any obligation (including those relating to payment) Leak Masters may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. Leak Masters will not be liable to the Client for any loss or damage the Client suffers because Leak Masters has exercised its rights under this clause.
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.
6. Without prejudice to Leak Masters’ other remedies at law Leak Masters shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Leak Masters shall, whether or not due for payment, become immediately payable in the event that:
  1. any money payable to Leak Masters becomes overdue, or in Leak Masters’ opinion the Client will be unable to meet its payments as they fall due; or
  2. 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
  3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Warranty
1. Subject to the conditions of warranty set out in clause 10.2 Leak Masters warrants that if any defect in any workmanship of Leak Masters becomes apparent and is reported to Leak Masters within twelve (12) months of the date of completion (time being of the essence) then Leak Masters will either (at Leak Masters’ sole discretion) replace or remedy the workmanship.
2. The conditions applicable to the warranty given by clause 10.1 are:
  1. the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
    1. failure on the part of the Client to properly maintain the Services; or
    2. failure on the part of the Client to follow any instructions or guidelines provided by Leak Masters; or
    3. any use of the Services otherwise than for any application specified on a quote or order form; or
    4. the continued use of the Services after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
    5. fair wear and tear, any accident or act of God.
  2. the warranty shall cease and Leak Masters shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Leak Masters’ consent.
  3. in respect of all claims Leak Masters 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.
3. For Materials not manufactured by Leak Masters, the warranty shall be the current warranty provided by the manufacturer of the Materials. Leak Masters 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.
Errors and Omissions
1. The Client shall inspect the Services on completion and shall within twenty-four (24) hours (time being of the essence) notify Leak Masters of any alleged defect, error or omission, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Leak Masters an opportunity to inspect the Services within a reasonable time following such notification if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions the Services shall be presumed to be free from any defect or damage. For defective Services, which Leak Masters has agreed in writing that the Client is entitled to reject, Leak Masters’ liability is limited to either (at Leak Masters’ discretion) replacing the Services or rectifying the Services, except where the Client has acquired Services as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Services, or rectification of the Services, or replacement of the Services.
2. Materials will not be accepted for return other than in accordance with 9.1 above.
Title
1. Leak Masters and the Client agree that ownership of the Materials shall not pass until:
  1. the Client has paid Leak Masters all amounts owing for the particular Materials; and
  2. the Client has met all other obligations due by the Client to Leak Masters in respect of all contracts between Leak Masters and the Client.
2. Receipt by Leak Masters 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 Leak Masters’ ownership or rights in respect of the Materials shall continue.
3. It is further agreed that:
  1. where practicable the Materials shall be kept separate and identifiable until Leak Masters shall have received payment and all other obligations of the Client are met; and
  2. until such time as ownership of the Materials shall pass from Leak Masters to the Client Leak Masters may give notice in writing to the Client to return the Materials or any of them to Leak Masters. Upon such notice the rights of the Client to obtain ownership or any other interest in the Materials shall cease; and
  3. Leak Masters shall have the right of stopping the Materials in transit whether or not delivery has been made; and
  4. if the Client fails to return the Materials to Leak Masters then Leak Masters or Leak Masters’ 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 Materials are situated and take possession of the Materials; and
  5. the Client is only a bailee of the Materials and until such time as Leak Masters 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 Leak Masters for the Materials, on trust for Leak Masters; and
  6. the Client shall not deal with the money of Leak Masters in any way which may be adverse to Leak Masters; and
  7. 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 Leak Masters; and
  8. Leak Masters 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
  9. until such time that ownership in the Materials passes to the Client, if the Materials are converted into other products, the parties agree that Leak Masters will be the owner of the end products.
Site Access and Condition
1. It is the intention of Leak Masters and agreed by the Client that:
  1. it is the responsibility of the Client to provide and have erected scaffolding to enable the Services to be performed (where in Leak Masters’ opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed; and
  2. it is the responsibility of the Client to remove any furniture, furnishings or personal goods from the vicinity of the Services and agrees that Leak Masters shall not be liable for any damage caused to those items through the Clients failure to comply with this clause; and
  3. Leak Masters shall not be liable for any loss or damage suffered by the Client in relation to the Services, where such loss or damage results from the state or condition of the existing building or structure; and
  4. it shall be the Client’s responsibility to organise the disconnection and re-connection of services, if required for the performance of the Services; and
  5. Leak Masters is not responsible for the removal of rubbish from, or clean up of, the site. This is the responsibility of the Client or the Client’s agent; and
  6. the Client shall provide Leak Masters with clear and free access to the site to enable Leak Masters to complete the Services and/or to remedy any defects after the completion date.
Risk
1. If Leak Masters retains ownership of the Materials nonetheless, all risk for the Materials passes to the Client on delivery.
2. The Client acknowledges that Goods supplied may exhibit variations in colour, shade tone, markings, veining texture, surface and finish and may vary from samples provided and/or fade or change colour over time. Whilst Leak Masters will make every effort to match batches or sales samples to the finished Materials, Leak Masters accepts no liability whatsoever where such variations occur.
Completion of the Services
1. Subject to clause 5.2 it is Leak Masters’ responsibility to ensure that the Services start on the agreed commencement date, or as soon as it is reasonably possible.
2. The Services commencement date will be put back and completion extended to whatever time is reasonable in the event that Leak Masters claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Leak Masters’ control including but not limited to any failure by the Client to:
  1. make a selection; or
  2. have the site ready for the Services; or
  3. notify Leak Masters that the site is ready.
3. Where the Services are delayed by the Client, or any third party, Leak Masters shall be entitled to charge the Client a fee to cover any loss incurred by Leak Masters (including, but not limited to, labour costs).
4. Delivery to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5. The failure of Leak Masters to deliver shall not entitle either party to treat this contract as repudiated.
6. Leak Masters shall not be liable for any loss or damage whatsoever due to failure by Leak Masters to deliver the Services (or any part of them) promptly or at all, where due to circumstances beyond the control of Leak Masters.
Price and Payment
1. At Leak Masters’ sole discretion the Price shall be either:
  1. as indicated on invoices provided by Leak Masters to the Client in respect of Services performed; or
  2. Leak Masters’ quoted Price (subject to clause 4.2) which shall be binding upon Leak Masters provided that the Client shall accept Leak Masters’ quotation in writing within thirty (30) days.
2. Leak Masters reserves the right to change the Price in the event of a variation to Leak Masters’ quotation. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of increases to Leak Masters in the cost of Materials and labour) will be charged for on the basis of Leak Masters’ quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3. At Leak Masters’ sole discretion:
  1. a non-refundable deposit of up to thirty percent (30%) of the Price may be required; and/or
  2. detailed payment claims may be submitted by Leak Masters at intervals not less than weekly for Services performed up to the end of each week. The value of Services so performed shall include the reasonable value of authorised variations and the value of Materials ordered for the Services.
4. Time for payment for the Services 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.
5. Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge 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 Leak Masters.
6. 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.
Acceptance
1. Any instructions received by Leak Masters from the Client for the performance of Services and/or the Client’s acceptance of Services performed by Leak Masters shall constitute acceptance of the terms and conditions contained herein.
2. 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. 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 Leak Masters.
4. The Client shall give Leak Masters 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 address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Leak Masters as a result of the Client’s failure to comply with this clause.
5. Services are performed by Leak Masters 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.
The Competition and Consumer Act 2010 (CCA)
1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA in each of the States and Territories of Australia, except to the extent permitted by the Act where applicable.
1.1 “Leak Masters” shall mean Permasol Pty Ltd T/A Leak Masters, its successors and assigns or any person acting on behalf of and with the authority of Leak Masters.
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 Leak Masters to the Client.
“Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
“Services” shall mean all Services performed by Leak Masters at the request of the Client (and where the context so permits shall include any supply of Materials as hereinafter above), as described on the invoices, quotation, work authorisation or any other forms as provided by Leak Masters to the Client, and includes any advice or recommendations
“Materials” shall mean all Materials supplied by Leak Masters, which are required to complete the Services.
“Price” shall mean the Price payable for the Services as agreed between Leak Masters and the Client in accordance with clause 4 of this contract.