Terms AND CONDITIONS
“Terms of trade" or “terms and conditions" are a legally binding agreement outlining the rights and obligations of both the business and its customers, covering aspects like payment, delivery, and liability, etc.
1. Definitions
1.1 “Safe and Secure Construction Pty Ltd” means our company Safe and Secure Construction Pty Ltd
its successors and assigns or any person acting on behalf of and with
the authority of Safe and Secure Construction Pty Ltd.
1.2 “Client” means the person/s hiring the Goods (and/or purchasing the Goods) as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by Safe and Secure Construction Pty Ltd to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by Safe and Secure Construction Pty Ltd to the Client.
1.5 “Price” means the Price payable for the hire (or purchase) of the Goods as agreed between Safe and Secure Construction Pty Ltd and the Client in accordance with clause 5 below.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately
bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with Safe and Secure Construction Pty Ltd consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Safe and Secure Construction Pty Ltd.
3. Change in Control
3.1 The Client shall give Safe and Secure Construction Pty Ltd not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Safe and Secure Construction Pty Ltd as a result of the Client’s failure to comply with this clause.
4. Brochures and Promotional Material
4.1 The Client acknowledges that description and illustrations in Safe and Secure Construction Pty Ltd brochures, promotional material and advertising are not to be taken as an exact representation of the articles described, and are intended to present a general idea of the Goods. All drawings, brochures and electronic information supplied are informative only. Safe and Secure Construction Pty Ltd accepts no responsibility for the accuracy of illustrations, designs, samples, weights, dimensions, capacities and other particulars of the Goods, and will not be responsible for the cost of additional work or consequential loss or damage caused by any defect or otherwise in Brochures and Promotional Material. All samples, illustrations, designs and specifications supplied to the Client remain the property of Safe and Secure Construction Pty Ltd and may not be copied, reproduced or used in part or whole without the prior written consent from Safe and Secure Construction Pty Ltd .
5. Price and Payment
5.1 At Safe and Secure Construction Pty Ltd sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Safe and Secure Construction Pty Ltd to the Client; or
(b) the Price as at the date of delivery of the Goods according to
Safe and Secure Construction Pty Ltd current price list; or
(c) Safe and Secure Construction Pty Ltd quoted price (subject to clauses 5.2 to 5.4) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. The quoted Price is subject to change after a site visit.
5.2 The Client acknowledges that any Price quoted or advertised is subject to change without notice.
5.3 Safe and Secure Construction Pty Ltd reserves the right to change the Price:
(a) if a variation to the Goods or Services which are to be supplied is requested; and/or
(b) in the event of increases to the Seller in the cost of labour or
materials, or fluctuations in currency exchange rates, which are beyond Safe and Secure Construction Pty Ltd's control.
5.4 The Client shall be responsible for, and will pay:
(a) all costs associated with the pickup and delivery of the Goods to and from the company depot, and if necessary shall provide loading equipment as well as all packaging costs;
(b) any additional costs or expenses not specifically provided for in this agreement, including but not limited to, any taxes, fees, stamp duty, levy or charge imposed by government, or semi-government authority;
(c) any extra costs due to the difference between data supplied by the Client and the actual site shall be paid by the Client.
5.5 At Safe and Secure Construction Pty Ltd’s sole discretion, a non-refundable deposit may be required.
5.6 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Safe and Secure Construction Pty Ltd , which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with Safe and Secure Construction Pty Ltd ’s payment schedule;
(d) seven (7) days following the end of the week in which an invoice or statement is posted to the Client’s address or email address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Safe and Secure Construction Pty Ltd.
5.7 Payment may be made by cash, cheque, bank cheque, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and Safe and Secure Construction Pty Ltd .
5.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Safe and Secure Construction Pty Ltd an amount equal to any GST Safe and Secure Construction Pty Ltd must pay for any supply by Safe and Secure Construction Pty Ltd under this or any other agreement for the sale/hire of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at Safe and Secure Construction Pty Ltd’s address; or
8.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that has previously been supplied and that will be supplied in the future by Safe and Secure Construction Pty Ltd to the Client.
8.3 The Client undertakes to:
(a) 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 Safe and Secure Construction Pty Ltd may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 8.3(a)(i) or 8.3(a)(ii);
(b) indemnify, and upon demand reimburse, Safe and Secure Construction Pty Ltd 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 Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Safe and Secure Construction Pty Ltd ;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Safe and Secure Construction Pty Ltd ;
(e) immediately advise Safe and Secure Construction Pty Ltd of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
8.4 Safe and Secure Construction Pty Ltd and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
8.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by Safe and Secure Construction Pty Ltd , the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Client must unconditionally ratify any actions taken by Safe and Secure Construction Pty Ltd under clauses 8.3 to 8.5.
8.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
9. Security and Charge
9.1 In consideration of Safe and Secure Construction Pty Ltd agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
9.2 The Client indemnifies Safe and Secure Construction Pty Ltd from and against all Safe and Secure Construction Pty Ltd ’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Safe and Secure Construction Pty Ltd ’s rights under this clause.
9.3 The Client irrevocably appoints Safe and Secure Construction Pty Ltd and each director of Safe and Secure Construction Pty Ltdas the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Client’s behalf.
10. Defects, Warranties and Returns, Competition and Consumer
Act 2010 (CCA)
10.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify Safe and Secure Construction Pty Ltd in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Safe and Secure Construction Pty Ltd to inspect the Goods.
10.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
10.3Safe and Secure Construction Pty Ltd acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
10.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Safe and Secure Construction Pty Ltd makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Safe and Secure Construction Pty Ltd’s liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5 If the Client is a consumer within the meaning of the CCA, Safe and Secure Construction Pty Ltd ’s liability is limited to the extent permitted by section 64A of Schedule 2.
10.6 If Safe and Secure Construction Pty Ltd is required to replace the Goods under this clause or the CCA, but is unable to do so, Safe and Secure Construction Pty Ltd may refund any money the Client has paid for the Goods.
10.7 If the Client is not a consumer within the meaning of the CCA, Safe and Secure Construction Pty Ltd ’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by Safe and Secure Construction Pty Ltd at Safe and Secure Construction Pty Ltd ’s sole discretion;
(b) limited to any warranty to which Safe and Secure Construction Pty Ltd is entitled, if Safe and Secure
Construction Pty Ltd did not manufacture the Goods;
(c) otherwise negated absolutely.
10.8 Subject to this clause 10, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 10.1; and
(b) Safe and Secure Construction Pty Ltd has agreed that the Goods are defective;
and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
10.9 Notwithstanding clauses 10.1 to 10.8 but subject to the CCA,
Safe and Secure Construction Pty Ltd shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Goods or in any other manner interfere with the Goods;
(j) employ the Goods solely in its own work and shall not permit the Goods or any part thereof to be used by any other party for any other work;
(k) not exceed the recommended or legal load and capacity limits of the Goods;
(l) not use or carry any illegal, prohibited or dangerous substance in, or on, the Goods;
(m) not fix any of the Goods in such a manner as to make them legally a fixture forming part of any freehold;
14.5 Immediately on request by Safe and Secure Construction Pty Ltd the Client will pay:
(a) the new list price of any Goods that are for whatever reason destroyed, written off or not returned to Safe and Secure Construction Pty Ltd ;
(b) all costs incurred in cleaning the Goods;
(c) all costs of repairing any damage caused by the ordinary use of the Goods up to an amount equal to ten percent (10%) of the new list price of the Goods;
(d) the cost of repairing any damage to the Goods caused by the negligence of the Client or the Client’s agent;
(e) the cost of repairing any damage to the Goods caused by vandalism, or (in Safe and Secure Construction Pty Ltd ’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Goods by the Client;
(f) any lost hire fees Safe and Secure Construction Pty Ltd would have otherwise been entitled to for the Goods, under this, or any other hire agreement.
14.6 Safe and Secure Construction Pty Ltd may terminate the hire contract, without being liable for damages for doing so, if:
(a) the Client default in the punctual payment of any monies due;
(b) the Client fails to observe or perform any condition in this, or any other uncompleted hire contract between Safe and Secure Construction Pty Ltd and the Client;
(c) the Client is declared bankrupt, or an official manager is appointed to any of the Client’s assets;
(d) the Client applies to take benefit of any law for the relief of bankrupt or insolvent debtors, compounds with their creditors, or makes an assignment of their remuneration for their benefit.
14.7 In the circumstances of clause 14.6 Safe and Secure Construction Pty Ltd shall be entitled to enter upon the Client’s site and remove the Goods from the site, without prejudice to any arrears in hire charges or other sums due to the breach if the Client’s obligations or for damages that may arise from any event, and from then Safe and Secure Construction Pty Ltd shall be freed and discharged from all actions, suits, claims, demands by or obligations to the Client under or by virtue of the hire contract.
15. Sale of Goods
15.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
15.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Safe and Secure Construction Pty Ltd is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Safe and Secure Construction Pty Ltd is sufficient evidence of Safe and Secure Construction Pty Ltd ’s rights to receive the insurance proceeds without the need for any person dealing with Safe and Secure Construction Pty Ltd to make further enquiries.
15.3 If the Client requests Safe and Secure Construction Pty Ltd to leave Goods outside Safe and Secure Construction Pty Ltd ’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
15.4 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Safe and Secure Construction Pty Ltd as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that Safe and Secure Construction Pty Ltd has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 15.4.
15.5 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
16. Privacy Act 1988
16.1 The Client agrees for Safe and Secure Construction Pty Ltd to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Safe and Secure Construction Pty Ltd .
16.2 The Client agrees that Safe and Secure Construction Pty Ltd 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.
16.3 The Client consents to Safe and Secure Construction Pty Ltd 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 credit information provided may be used and retained by Safe and Secure Construction Pty Ltd for the following purposes (and for other purposes as shall be agreed between the Client and Safe and Secure Construction Pty Ltd or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Safe and Secure Construction Pty Ltd , 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 Goods;
and/or
(d) 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 Goods.
16.5 Safe and Secure Construction Pty Ltd may give information about the Client to a credit reporting
Uncompromised Safety
(b) Safe and Secure Construction Pty Ltd (or Safe and Secure Construction Pty Ltd’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
6.2 At Safe and Secure Construction Pty Ltd’s sole discretion, the cost of delivery is included in the Price.
6.3 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Safe and Secure Construction Pty Ltd shall be entitled to charge a reasonable fee for redelivery of the Goods and/or the storage of the Goods.
6.4 Safe and Secure Construction Pty Ltd may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.5 The Client cannot reject Goods due to any short delivery by Safe and Secure Construction Pty Ltd . Failure by the Client to meet dates given for delivery does not entitle the Client to cancel this agreement. If the commencement of any contract is delayed, Safe and Secure Construction Pty Ltd is not obliged to keep aside or hold back its Goods. Safe and Secure Construction Pty Ltd will only be liable to comply with its obligations under any contract subject to the availability of Goods. The Client shall provide a representative to check the quantity of the Goods delivered. If the Client does not provide a representative, then the Delivery Docket will provide conclusive evidence as to the quantities of Goods delivered.
6.6 Any time or date given by Safe and Secure Construction Pty Ltd to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Safe and Secure Construction Pty Ltd will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6.7 Safe and Secure Construction Pty Ltd shall not be responsible for delay or non-completion of the job for which the Goods are purchased/hired resulting from an act beyond the reasonable control of Safe and Secure Construction Pty Ltd , including but not limited to, industrial action, strikes, lockouts, epidemics, fire, war, government actions, commotion, riot, floods or inclement weather.
7. Title to the Goods
7.1 Where this is a hire agreement:
(a) the Goods is and will at all times remain the absolute property of Safe and Secure Construction Pty Ltd , however the Client accepts full responsibility for:
(i) the safekeeping of the Goods and indemnifies Safe and Secure Construction Pty Ltd for all loss, theft, or damage to the Goods howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client; and
(ii) shall keep Safe and Secure Construction Pty Ltd indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Goods during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.
Furthermore, the Client will insure, or self-insure, Safe and Secure Construction Pty Ltd ’s interest in the Goods 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 arising out of the Goods. Further the Client will not use the Goods nor permit it to be used in such a manner as would permit an insurer to decline any claim.
(b) If the Client fails to return the Goods to Safe and Secure Construction Pty Ltd then Safe and Secure
Construction Pty Ltd or Safe and Secure Construction Pty Ltd ’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 Goods is situated and take possession of the Goods, without being responsible for any damage thereby caused.
(c) The Client is not authorised to pledge Safe and Secure Construction Pty Ltd’s credit for repairs to the Goods or to create a lien over the Goods in respect of any repairs.
7.2 Where is this an agreement for the purchase of the Goods:
(a) Safe and Secure Construction Pty Ltd and the Client agree that ownership of the Goods shall not pass until:
(i) the Client has paid Safe and Secure Construction Pty Ltd all amounts owing to Safe and Secure Construction Pty Ltd ; and
(ii) the Client has met all of its other obligations to Safe and Secure Construction Pty Ltd .
(b) Receipt by Safe and Secure Construction Pty Ltd 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.
(c) It is further agreed that:
(i) until ownership of the Goods passes to the Client in accordance with clause (a) that the Client is only a bailee of the Goods and must return the Goods to Safe and Secure Construction Pty Ltd on request.
(ii) the Client holds the benefit of the Client’s insurance of the Goods on trust for Safe and Secure Construction Pty Ltd and must pay to Safe and Secure Construction Pty Ltd the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(iii) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Safe and Secure Construction Pty Ltd and must pay or deliver the proceeds to Safe and Secure Construction Pty Ltd on demand.
(iv) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Safe and Secure Construction Pty Ltd and must sell, dispose of or return the resulting product to Safe and Secure Construction Pty Ltd as it so directs.
(v) the Client irrevocably authorises Safe and Secure Construction Pty Ltd to enter any premises where Safe and Secure Scaffolding believes the Goods are kept and recover possession of the Goods.
(vi) Safe and Secure Construction Pty Ltd may recover possession of any Goods in transit whether or not delivery has occurred.
(vii) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Safe and Secure Construction Pty Ltd
(viii) Safe and Secure Construction Pty Ltd may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
8. Personal Property Securities Act 2009 (“PPSA”)
8.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
SAFE AND SECURE CONSTRUCTION
PTY LTD ABN 84 677 975 932
Uncompromised Safety
(a) the Client failing to properly maintain or store the Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Safe and Secure Construction Pty Ltd ;
(e) fair wear and tear, any accident, or act of God.
10.10 Notwithstanding anything contained in this clause if Safe and Secure Construction
Pty Ltd is required by a law to accept a return then Safe and Secure Scaffolding will only accept a return on the conditions imposed by that law.
11. Intellectual Property
11.1 Where Safe and Secure Construction Pty Ltd has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Safe and Secure Construction Pty Ltd .
11.2 The Client warrants that all designs, specifications or instructions given to Safe and Secure Construction Pty Ltd will not cause Safe and Secure Construction Pty Ltd to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Safe and Secure Construction Pty Ltd against any action taken by a third party against Safe and Secure Construction Pty Ltd in respect of any such infringement.
11.3 The Client agrees that Safe and Secure Construction Pty Ltd may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Safe and Secure Construction Pty Ltd has created for the Client.
12. Default and Consequences of Default
12.1 A penalty 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 Safe and Secure Construction Pty Ltd ’s sole discretion such penalty shall compound monthly at such a rate) after as well as before any judgment.
12.2 If the Client owes Safe and Secure Construction Pty Ltd any money the Client shall indemnify Safe and Secure Construction Pty Ltd from and against all costs and disbursements incurred by Safe and Secure Construction Pty Ltd in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Safe and Secure Construction Pty Ltd ’s collection agency costs, and bank dishonour fees).
12.3 Without prejudice to any other remedies Safe and Secure Construction Pty Ltd may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Safe and Secure Construction Pty Ltd may suspend or terminate the supply of Goods to the Client. Safe and Secure Construction Pty Ltd will not be liable to the Client for any loss or damage the Client suffers because Safe and Secure Construction Pty Ltd has exercised its rights under this clause.
12.4 Without prejudice to Safe and Secure Construction Pty Ltd ’s other remedies at law Safe and Secure Construction Pty Ltd shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Safe and Secure Construction Pty Ltd shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Safe and Secure Construction Pty Ltd becomes overdue, or in Safe and Secure Construction Pty Ltd ’s opinion the Client will be unable to make a payment when it falls due;
(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.
13. Cancellation
13.1 Safe and Secure Construction Pty Ltd may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Safe and Secure Construction Pty Ltd shall repay to the Client any money paid by the Client for the Goods. Safe and Secure Construction Pty Ltd shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Safe and Secure Construction Pty Ltd as a direct result of the cancellation (including, but not limited to, any loss of profits and any cost of materials, labour and other costs incurred by Safe and Secure Construction Pty Ltd ).
14. Hire of Goods
14.1 Hire charges shall commence from the time the Goods leave Safe and Secure Construction Pty Ltd ’s premises and continue until the return of the Goods to Safe and Secure Construction Pty Ltd ’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
14.2 The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
14.3 No allowance whatsoever can be made for time during which the Goods are not in use for any reason, unless Safe and Secure Construction Pty Ltd confirms special prior arrangements in writing. In the event of Goods breakdown provided the Client notifies Safe and Secure Construction Pty Ltd immediately, hiring charges will not be payable during the time the Goods are not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.
14.4 The Client shall:
(a) maintain the Goods as is required by Safe and Secure Construction Pty Ltd ;
(b) notify Safe and Secure Construction Pty Ltd immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Goods by giving such notification;
(c) satisfy itself at commencement that the Goods are suitable for its purposes;
(d) operate the Goods safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by Safe and Secure Construction Pty Ltd or posted on the Goods;
(e) ensure that all persons operating or erecting the Goods are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are fully licensed to operate the Goods and shall provide evidence of the same to Safe and Secure Construction Pty Ltd upon request;
(f) comply with all occupational health and safety laws relating to the Goods and their operation;
(g) on termination of the hire, deliver the Goods complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to Safe and Secure Construction Pty Ltd ;
(h) keep the Goods in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Goods;
(i) not alter or make any additions to the Goods including but
SAFE AND SECURE CONSTRUCTION
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Uncompromised Safety
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.
16.6 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 Safe and Secure Construction Pty Ltd 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;
(e) 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;
(f) information that, in the opinion of Safe and Secure Construction Pty Ltd , the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by Safe and Secure Construction Pty Ltd has been paid or otherwise discharged.
17. Unpaid Seller’s Rights
17.1 Where the Client has left any item with Safe and Secure Construction Pty Ltd for repair, modification, exchange or for Safe and Secure Construction Pty Ltd to perform any other service in relation to the item and Safe and Secure Construction Pty Ltd has not received or been tendered the whole of any moneys owing to it by the Client,
Safe and Secure Construction Pty Ltd shall have, until all moneys owing to Safe and Secure Construction Pty Ltd are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
17.2 The lien of Safe and Secure Construction Pty Ltd shall continue despite the commencement of proceedings, or judgment for any moneys owing to Safe and Secure Construction Pty Ltd having been obtained against the Client.
18. Building and Construction Industry Security of Payments Act 1999
18.1 At Safe and Secure Construction Pty Ltd ’s sole discretion, if there are any disputes or claims for unpaid Goods then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
18.2 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 Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
19. General
19.1 The failure by Safe and Secure Construction Pty Ltd to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Safe and Secure Construction Pty Ltd’s right to subsequently enforce that provision. 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.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which Safe and Secure Construction Pty Ltd has its principal place of business, and are subject to the jurisdiction of the courts in that state.
19.3 Subject to clause 10 Safe and Secure Construction Pty Ltd 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 Safe and Secure Construction Pty Ltd of these terms and conditions
(alternatively Safe and Secure Construction Pty Ltd’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods hire).
19.4 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 Safe and Secure Construction Pty Ltd nor to withhold payment of any invoice because part of that invoice is in dispute.
19.5 Safe and Secure Construction Pty Ltd may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.6 The Client agrees that Safe and Secure Construction Pty Ltd may amend these terms and conditions at any time. If Safe and Secure Construction Pty Ltd makes a change to these terms and conditions, then that change will take effect from the date on which Safe and Secure Construction Pty Ltd notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Safe and Secure Construction Pty Ltd to provide Goods to the Client.
19.7 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.
19.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.