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Terms and Conditions of Trade

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  1. Definitions
  2. Acceptance
  3. Services
  4. Price And Payment
  5. Delivery Of Services/Services
  6. Risk
  7. Errors and Omissions
  8. Customer's Disclaimer
  9. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
  10. Intellectual Property
  11. Default & Consequences Of Default
  12. Title
  13. Security And Charge
  14. Cancellation
  15. Privacy Act 1988
  16. Lien & Stoppage in Transit
  17. General
  1. Definitions
    1. "Consultant" shall mean Adair Fire & Emergency Consultants Pty Ltd and its successors and assigns.
    2. "Customer" shall mean the Customer or any person acting on behalf of and with the authority of the Customer.
    3. "Guarantor" means that person (or persons), or entity who agrees herein to be liable for the debts of the Customer on a principal debtor basis.
    4. "Services" shall mean all services supplied by the Consultant to the Customer and includes any advice or recommendations.
    5. "Price" shall mean the cost of the Services as agreed between the Consultant and the Customer subject to clause 4 of this contract.

  2. Acceptance
    1. Any instructions received by the Consultant from the Customer for the supply of Services and/or the Customer's acceptance of Services supplied by the Consultant shall constitute acceptance of the terms and conditions contained herein.
    2. Where more than one Customer has entered into this agreement, the Customer's shall be jointly and severally liable for all payments of the Price.
    3. Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Consultant.
    4. None of the Consultant's agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Consultant in writing nor is the Consultant bound by any such unauthorised statements.
    5. The Customer undertakes to give the Consultant not less than fourteen (14) days prior written notice of any proposed change in the Customer's name and/or any other change in the Customer's details (including but not limited to, changes in the Customer's address, facsimile number, or business practice).

  3. Services
    1. The Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Consultant to the Customer.

  4. Price And Payment
    1. At the Consultant's sole discretion the Price shall be either;
      1. as indicated on invoices provided by the Consultant to the Customer in respect of Services supplied; or
      2. the Consultant's current Price, at the date of delivery of the Services, according to the Consultant's current Price list; or
      3. the Consultant's quoted Price (subject to clause 4.2) which shall be binding upon the Consultant provided that the Customer shall accept in writing the Consultant's quotation within thirty (30) days.
    2. Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Consultant'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.
    3. Time for payment for the Services 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 Services.
    4. At the Consultant's sole discretion, payment for approved Customers shall be made by instalments in accordance with the Consultants delivery/payment schedule.
    5. At the Consultant's sole discretion, for certain approved Customers payment will be due fourteen (14) days following the date of the invoice.
    6. 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 Customer and the Consultant.
    7. 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 Consultant.

  5. Delivery Of Services / Services
    1. Delivery of the Services shall be made to the Customer's address. The Customer shall make all arrangements necessary to take delivery of the Services whenever they are tendered for delivery, or delivery of the Services shall be made to the Customer at the Consultant's address.
    2. The costs of carriage and any insurance which the Customer reasonably directs the Consultant to incur shall be reimbursed by the Customer (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Customer's agent.
    3. Delivery of the Goods to a carrier, either named by the Customer or failing such naming to a carrier at the discretion of the Consultant for the purpose of transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.
    4. The Consultant may deliver the Goods 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. Delivery of the Services to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
    6. The Customer shall take delivery of the Services tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
      1. such discrepancy in quantity shall not exceed 5%, and
      2. the Price shall be adjusted pro rata to the discrepancy.
    7. The failure of the Consultant to deliver shall not entitle either party to treat this contract as repudiated.
    8. The Consultant shall not be liable for any loss or damage whatever due to failure by the Consultant to deliver the Services (or any of them) promptly or at all.

  6. Risk
    1. If the Consultant retains property in the Services nonetheless, all risk for the Services passes to the Customer on delivery.

  7. Errors and Omissions
    1. The Customer shall inspect the Services on delivery and shall within seven (7) days of delivery notify the Consultant of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Customer shall afford the Consultant an opportunity to inspect the Services within a reasonable time following delivery if the Customer believes the Services are defective in any way. If the Customer shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
    2. For defective Services, which the Consultant has agreed in writing that the Customer is entitled to reject, the Consultant's liability is limited to either (at the Consultant's discretion) replacing the Services or repairing the Services provided that the Customer has complied with the provisions of clause 7.1.

  8. Customer's Disclaimer
    1. The Customer 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 Consultant and the Customer acknowledges that he buys the Services relying solely upon his own skill and judgement.

  9. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
    1. Nothing in this agreement is intended to have the effect 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.

  10. Intellectual Property
    1. Where the Consultant has designed or drawn Services for the Customer, then the copyright in those designs and drawings shall remain vested in the Consultant, and shall only be used by the Customer at the Consultant's discretion.
    2. Conversely, in such a situation, where the Customer has supplied drawings, the Consultant in its sale conditions may look for an indemnity (the specifications and design of the Services (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Consultant).
    3. Where any designs or specifications have been supplied by the Customer for manufacture, by or to the order of the Consultant then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Services shall not infringe the rights of any third party.
    4. The Customer warrants that all designs or instructions to the Consultant will not cause the Consultant to infringe any patent, registered design or trademark in the execution of the Customer's order.

  11. Default & Consequences Of Default
    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% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
    2. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Consultant from and against all the Consultant's costs and disbursements including on a solicitor and own client basis and in addition all of the Consultant's nominees costs of collection.
    3. Without prejudice to any other remedies the Consultant may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Consultant may suspend or terminate the supply of Services to the Customer and any of its other obligations under the terms and conditions. The Consultant will not be liable to the Customer for any loss or damage the Customer suffers because the Consultant exercised its rights under this clause.
    4. If any account remains unpaid at the end of the second month after supply of the Services 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.
    5. In the event that:
      1. any money payable to the Consultant becomes overdue, or in the Consultant's opinion the Customer will be unable to meet its payments as they fall due; or
      2. the Customer 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 Customer or any asset of the Customer; then without prejudice to the Consultant's other remedies at law
        1. the Consultant shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
        2. all amounts owing to the Consultant shall, whether or not due for payment, immediately become payable in addition to the interest payable under clause 11.1 hereof.

  12. Title
    1. It is the intention of the Consultant and agreed by the Customer that property in the Services shall not pass until the Customer has paid all amounts owing for the particular Services.
    2. It is further agreed that:
      1. Until such time as ownership of the Services shall pass from the Consultant to the Customer the Consultant may give notice in writing to the Customer to return the Services or any of them to the Consultant. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Services shall cease.
      2. If the Customer fails to return the Services to the Consultant then the Consultant or the Consultant's agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Services are situated and take possession of the Services, without being responsible for any damage thereby caused.
      3. Receipt by the Consultant 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 Consultant's ownership of rights in respect of the Services shall continue.
      4. The Consultant may require payment of the Price or the balance of the Price due together with any other amounts due from the Customer to the Consultant arising out of these terms and conditions, and the Consultant may take any lawful steps to require payment of the amounts due and the Price.
      5. The Consultant can issue proceedings to recover the Price of the Services sold notwithstanding that ownership of the Services may not have passed to the Customer.

  13. Security And Charge
    1. Despite anything to the contrary contained herein or any other rights which the Consultant may have howsoever:
      1. Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer 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 Consultant or the Consultant's nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Consultant (or the Consultant'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.
      2. Should the Consultant elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Consultant from and against all the Consultant's costs and disbursements including legal costs on a solicitor and own client basis.
      3. To give effect to the provisions of clause [13.1 (a) and (b)] inclusive hereof the Customer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Consultant or the Consultant's nominee as the Customer's and/or Guarantor's true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Consultant and/or the Consultant's nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of the Consultant and in the Customer's and/or Guarantor's name as may be necessary to secure the said Customer's and/or Guarantor's obligations and indebtedness to the Consultant 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 Consultant's absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.

  14. Cancellation
    1. The Consultant may cancel these terms and conditions or cancel delivery of Services at any time before the Services are delivered by giving written notice. The Consultant shall not be liable for any loss or damage whatever arising from such cancellation.
    2. At the Consultants sole discretion the Customer may cancel delivery of the Services. In the event that the Customer cancels delivery of the Services the Customer shall be liable for any costs incurred by the Consultant up to the time of cancellation.

  15. Privacy Act 1988
    1. The Customer and/or the Guarantor/s agree for the Consultant to obtain from a credit-reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Consultant.
    2. The Customer and/or the Guarantor/s agree that the Consultant may exchange information about Customer 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:
      1. To assess an application by Customer;
      2. To notify other credit providers of a default by the Customer;
      3. To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and
      4. To assess the credit worthiness of Customer and/or Guarantor/s.
    3. The Customer consents to the Consultant being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
    4. The Customer agrees that Personal Data provided may be used and retained by the Consultant for the following purposes and for other purposes as shall be agreed between the Customer and Consultant or required by law from time to time:
      1. provision of Services;
      2. marketing of Services by the Consultant, its agents or distributors in relation to the Services;
      3. analysing, verifying and/or checking the Customer's credit, payment and/or status in relation to provision of Services;
      4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and
      5. enabling the daily operation of Customer's account and/or the collection of amounts outstanding in the Customer's account in relation to the Services.
    5. The Consultant may give, information about the Customer to a credit reporting agency for the following purposes:
      1. to obtain a consumer credit report about the Customer; and or
      2. allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

  16. Lien & Stoppage in Transit
    1. Where the Consultant has not received or been tendered the whole of the price, or the payment has been dishonoured, the Consultant shall have:
      1. a lien on the Services;
      2. the right to retain them for the price while the Consultant is in possession of them;
      3. a right of stopping the Services in transit whether or not delivery has been made or ownership has passed; and
      4. a right of resale,
      5. the foregoing right of disposal, provided that the lien of the Consultant shall continue despite the commencement of proceedings or judgement for the price having been obtained.

  17. 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. All Services supplied by the Consultant are subject to the laws of New South Wales and the Consultant takes no responsibility for changes in the law which affect the Services supplied.
    3. The Consultant shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Consultant of these terms and conditions.
    4. In the event of any breach of this contract by the Consultant the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Consultant exceed the Price of the Services.
    5. The Customer shall not set off against the Price amounts due from the Consultant.
    6. The Consultant may license or sub-contract all or any part of its rights and obligations without the Customer's consent.
    7. The Consultant 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 Consultant notifies the Customer 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, drought, storm or other event beyond the reasonable control of either party.

 

 
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