SERVICE TERMS & CONDITIONS

Choyce Electrical Pty Ltd Terms & Conditions

1. 1. DEFINITIONS

In these terms and conditions:
Agreement means an agreement between the Client and Contractor for the supply of Goods or Services constituted by a Proposal, these Conditions and any agreed variation;
Client means the person who buys the Goods or Services from the Contractor as specified in the Proposal
Conditions mean these terms and conditions of purchase in this Agreement;
Contractor means Choyce Electrical Pty Ltd ACN 139 334 302 and any related body corporate (within the meaning of section 50 of the Corporations Act) as specified in the Proposal;
Goods means the goods described in the Proposal;
GST means any tax including any additional tax imposed on the supply of or payment for goods or services which is imposed or assessed under any GST Law;
GST Law means A New Tax System (Goods and Services Tax) Act 1999, and all related and auxiliary legislation;
Loss means any loss, liability, costs (including legal costs as the higher of an indemnity or solicitor-client basis) or expense incurred by the Contractor relating to this Agreement;
Personal Information has the meaning given in the Privacy Laws and includes any credit information or tax file information (if applicable).
Price means the price payable for the Goods and/or Services as between the Contractor and the Client in accordance with clause 3 of these Conditions.
Privacy Laws means:

• the Privacy Act 1988 (Cth);
• any other Commonwealth, state and/or territory legislation, to the extent that legislation applies to the Contractor or the Client, which is in force and which affects privacy, Personal Information or the handling of personal data; and
• any ancillary, rules, guidelines, orders, directions, codes of conduct or other legislative instruments made or issued under those Privacy Laws.

Proposal means the Client ’s construction proposal accompanying these Conditions, any quote provided by the Contractor to the Client or otherwise communicated with the Client;
Representative of a party means that party’s director, or authorised officer, employee or agent;
Services means the services described in the Proposal;
Specifications means any technical or other specification relating to the Goods or Services referred to in the Proposal and details of which have been supplied by the Client or its Representative to the Contractor; and 

2. BINDING TERMS AND CONDITIONS

2.1          Entire Agreement

The entire Agreement between the Client and the Contractor for the purchase of the Goods or Services by the Client from the Contractor is:

(a) these Conditions;

(b) any other terms and conditions (including Specifications) incorporated by reference in the Proposal as long as the Client has details of these terms and conditions;

(c) any other terms and conditions which are imposed by law and which cannot be excluded; and

(d) any agreed written variation.

2.2          Precedence

These Conditions shall apply to all contracts for the purchase of Goods or Services by the Client from the Contractor to the exclusion of any terms and conditions or any other materials which the Client may purport to apply or which are endorsed upon any correspondence or documents issued by the Client irrespective of their date of communication to the Contractor, except to the extent that the Client’s terms and conditions are agreed to in writing and signed by the Contractor. The Client may not rely on any representations by the Contractor that are not included in the Agreement. 

2.3          Acceptance

Acceptance of a Proposal by the Client constitutes acceptance of these Conditions. 

3. PRICE

3.1          Price of Goods or Services supplied

At the Contractor’s sole discretion, the Price shall be based on the Specifications, design, information and instructions provided by the Client and shall be either

(a) As indicated on invoices provided by the Contractor to the Client in respect of the Goods and/or Services provided; or

(b) The Contractor’s quoted price in the Proposal (subject to clause 3.2] which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s Proposal in writing within 14 days.

(c) Prices are charged at the following rates & are exclusive of GST:

Minimum 1 hour Charge:
Service Call $70.00

Technician Rates:
Tradesman $130.00 per hour
4th Year Apprentice $95.00 per hour
3rd Year Apprentice $85.00 per Hour
2nd Year Apprentice $80.00 per Hour
1st Year Apprentice $75.00 per Hour

3.2          Adjustment to the Price

The Contractor reserves the right to change the Price in the event of a variation to the Contractor’s Proposal. Any variation to the Proposal or the Specifications (including, but not limited to any variation as a result of additional works required due to hidden or unidentifiable difficulties or as a result of increases to the Contractor in the cost of materials and labour) will be charged for based on the Contractor’s Proposal and will be shown as variations on the invoice. Payment for all variations must be made in full at the time of completion. 

3.3          GST

The price at which the Goods or Services are provided by the Contractor to the Client includes (unless otherwise stated or agreed in writing) GST, if applicable.

3.4 The Contractor does not (unless expressly specified by the Contractor) cover any extra work including patching, painting, carpet lifting or refitting, building or decorating works, working with hazardous materials or concrete cutting and excavation work. 

3.5: The Contractor makes no allowance or liability for service provides such as Energex, Telstra or local Council fees, charges and contributions. 

4. PAYMENT

4.1          Payment Terms

Payment for Goods or Services supplied by the Contractor to the Client will be tendered 7 days from date of the invoice. 

4.2          Interest

Interest on overdue invoices shall be charged at a rate of 10% per annum from the day after the date when payment became due, until payment is received by the Contractor 

4.3          Outstanding Monies

If the Client defaults in making payment in accordance with this Agreement, the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering any outstanding monies including but not limited to legal costs on a solicitor/client basis.  

5. ACCESSS TO SITE

5.1 The Client shall ensure that the Contractor has clear, continuous, uninterrupted and free access to the work site, relevant people, equipment, facilities and areas.  Non-compliance with this requirement may incur an additional charge.  The Contractor shall not be liable for any loss or damage to the Client ’s premises unless directly caused by the wilful negligence of the Contractor.  

5.2 to the extent applicable, prior to the Contractor commencing work, the Client must advise the Contractor of the precise location of all underground services on the premises and clearly mark the same. The underground mains & services the Client must identify include but are not limited to electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains and any other services that may be on site. The Client agrees to indemnify and hold harmless the Contractor for any liability, claim, loss, damage or costs which are incurred as a result of the Client not complying with this clause 5.2.

5.3 The Client agrees that ownership of any equipment used by the Contractor to provide the Goods or perform the Services remains with the Contractor at all times unless agreed in writing by the parties.

5.4: Onsite amenities, parking, power, lifting equipment, scaffolding, scissor/boom lifts and rubbish removal skips shall me made available at no cost to the Contractor.  Should these amenities not be available at the time of our attendance at the work site, reasonable costs may be added to your invoice. 

5.5: The Client must ensure the work site is at all times a safe working environment and will not contain asbestos or similar hazards. If hazards (including asbestos) are present on the site all relevant details are to be included on the site register and the Contractor must be notified of all hazards prior to work commencing on the site.  For the avoidance of doubt, the Client must notify the Contractor of any and all hazards on the site prior to work commencing. Such hazards may cause an adjustment to the Price. 

6. TITLE AND QUALITY

6.1          Title

Title in the Goods passes to the Client on payment in full for all Goods and/or Services provided in accordance with the Proposal.  The Client must not grant any interest in the Goods until title passes to the Client. 

6.2          Risk

The Client bears all risks of loss and damage to the Goods upon delivery of the Goods to the Client ’s site. 

6.3          Insurance proceeds

If the goods are damaged or destroyed before title has passed to the Client, the Contractor is entitled to receive all insurance proceeds payable for the Goods. 

6.4          Variations in Goods

The Client acknowledges that the Goods supplied may exhibit variations in shade, colour, texture, surface and finish and may fade or change colour over time. The Contractor will make reasonable efforts to match batches of Goods or product supplied but will not be liable to the Client should any variations occur. 

6.5          Acceptance

The Client shall inspect the Goods and/or Services and shall within 48 hours of completion (time being of the essence) notify the Contractor of any alleged defect, damage or failure to comply with the Specifications or Proposal.  The Client shall give the Contractor an opportunity to inspect the Goods and/or Services within a reasonable time from when the Client notifies the Contractor in accordance with this clause 6.5. If the Client fails to provide notice in accordance with this clause 6.5, the Goods and/or Services are deemed to be free from defect and damage. 

6.6      Rectification

Where the Contractor has confirmed the relevant defects in writing, the Contractor’s liability is limited (In its absolute discretion) to either replacing or repairing the Goods and/or Services. 

6.7       Warranty for Goods and/or Services

The Contractor warrants that if any defect in any workmanship becomes apparent and is reported to the Contractor within 12 months from the date of completion of the works, as indicated by the Contractor to the Client, the Contractor (in its sole discretion) will replace or remedy the defect.

 

6.8 Conditions of Warranty

The warranty in clause 6.7 shall not cover any defect or damage caused or partly caused by or arise through

(a) Failure of the Client to properly maintain the Goods and/or product of the Services carried out by the Contractor;

(b) The Client ’s failure to follow any instructions or guidelines provided by the Contractor;

(c) Any use of the product of the Goods and/or Services other than as specified in the Proposal.

(d) Continued use of the product of the Goods and/or Services after any defect becomes apparent or would have become apparent to any reasonable person;

(e) Fair wear or tear;

(f) An accident or an act of God;

6.9 Liability for Defect

The Contractor will not be liable to compensate the Client for any delay in replacing or remedying the defect. 

6.10 Contractor’s warranties

Contractor warrants that the Goods:

(a) are safe;

(b) are free from encumbrances, defect or fault; and

(c) include appropriate and correct warning and instructions;

6.11Client ’s warranties

To the extent applicable, the Client warrants that:

(a) where the Contractor is required to install Goods or perform Services on an existing structure, that the structure is sound and will sustain installation and work incidental to installation and the Contractor shall not be liable for any claims, demands, losses, damages, costs and expenses however caused should the premises or equipment supplied by the Client be unable to accommodate the installation.

6.12 Contractor’s Indemnities

The Contractor must indemnify the Client against any Loss incurred by the Client concerning a breach of warranty, representation or term of the Agreement. 

7. INTELLECTUAL PROPERTY RIGHTS

7.1 Where the Contractor has designed, drawn or written the Goods and/or Services for the Client, then the intellectual property rights in those designs, drawings and documents remain vested in the Contractor and shall only be used by the Client with the Contractor’s written approval.

7.2 Ownership in any intellectual property rights created or developed by the Contractor in providing the Goods and/or Services pursuant to the Proposal remains with the Contractor.

7.3 The Client warrants that any designs, drawings, documents or instructions provided to the Contractor will not infringe any intellectual property rights of a third party and the Client agrees to indemnify the Contractor against any action taken by a third party against the Contractor in relation to the breach of the warranty in this clause 7.1.

8. CONFIDENTIALITY

The Contractor agrees to keep confidential all of the Client ’s information concerning or arising from the performance of the Proposal (“Information”). This clause does not apply to Information which is lawfully obtained from a third party, is public knowledge, is already known or is otherwise independently developed by Representatives of the Contractor who have not been exposed to the Information. 

9. INDEMNITY AND RELEASE

The Client must defend, indemnify and hold the Contractor, its affiliated companies, and their Representatives, successors, and assigns harmless from and against all claims, suits, actions, liabilities, loss, judgments or damages, whether ordinary, special or consequential arising directly or indirectly from or in connection with:

(a) the acts, negligence, omissions or wilful misconduct of the Client or any other third party;

(b) a breach of any of the Client’s warranties or any other term of the Agreement;

(c) a claim that any documentation or information supplied by the Client infringes upon or misappropriates any patent, copyright, trademark, trade secret or other intellectual property interest of another; or

(d) a claim of any lien, security interest or other encumbrance made by a third party.

10. TERM AND TERMINATION

10.1        Term

This Agreement shall commence and end on the dates specified in the Proposal unless otherwise terminated earlier in accordance with the remainder of this clause 10. 

10.2        Without cause

The Contractor may, at any time, terminate the Proposal, in whole or in part, without cause, upon written notice to the Client either before or after works have commenced by providing 14 days written notice to the Client. Charges for any such termination of the Proposal will be limited to actual non-recoverable costs incurred by the Contractor which the Contractor can demonstrate were properly incurred prior to the date of termination. 

10.2        Client’s Termination with Cause

The Client may terminate the Agreement, in whole or in part, if the Contractor:

(a) fails to provide the Goods and/or Services in accordance with the Proposal and this Agreement; or

(b) becomes insolvent, files or has filed against petition in bankruptcy, or makes an assignment for the benefit or creditors.

10.3 Contractor’s Termination with Cause

The Contractor may terminate this Agreement in whole or in part, if the Client:

(a) is in breach of any term of this Agreement; or

(b) becomes insolvent, files or has filed against petition in bankruptcy, or makes an assignment for the benefit or creditors. 

11. PERSONAL PROPERTIES SECURITIES ACT 2009 (“PPSA”)

11.1 In this clause, the following terms have the meaning given to them in the Personal Properties Securities Act 2009 (Cth) (“PPSA”):

(a) Financing Statement;

(b) Security Agreement;

(c) Security Interest.

11.2 The Client acknowledges and agrees that this Agreement constitutes a Security Agreement and creates a Security Interest in the Goods and/or Services provided by the Contractor. 

11.3 The Client agrees to take all steps necessary to assist the Contractor in registering their security interest on the Personal Property Securities Register (“PPSR”) and will indemnify the Contractor for all costs and expenses incurred in registering its Security Interest on the PPSR. 

13. PRIVACY

The Client must in relation to Personal Information

(a) use and disclose it only for the purpose of performing the Client’s obligations under this Agreement;

(b) not do or omit to do anything which would cause the Contractor to contravene the Privacy Laws;

(c) not use or disclose it for sale, profit or any other benefit;

(d) collect, use, disclose, hold and destroy or de-identify it in accordance with this Agreement and the Privacy Laws, including taking reasonable steps to ensure it is protected against misuse or loss and any unauthorised access, use, modification or disclosure;

(e) ensure only authorised Representatives have access to it, on a need to know basis only, and if requested by the Contractor, arrange for those Representatives, who may be fulfilling a requirement in relation to this Agreement to execute a document that contains the same or equivalent obligations as this clause 13;

(f) immediately notify the Contractor if the Client or the Clients’ Representatives, becomes aware: of an actual or alleged breach of this clause, the Privacy Laws by them;

i. an enquiry, complaint or dispute has been received or may be made by an individual in relation to a breach of the Privacy Laws with respect to that individual’s Personal Information;

ii. they are, or may be required to, at law or otherwise, disclose Personal Information for a purpose other than the permitted disclosures under this Agreement; or

 

iii. an individual has requested access to or correction of their Personal Information, other than a request that arises out of the-day-to day management of that individual’s personal information under a relationship (if any) with the Supplier;

(g) acknowledge that the Contractor will deal with the matters in subclause (f) and the Client must as soon as is practicable:

i. comply with all reasonable directions,

ii. produce all necessary information; and

 

iii. do all things reasonably necessary;

to assist the Contractor with the Contractor’s compliance with obligations under this clause, the Privacy Laws and Privacy Policy and to enable the Contractor to take steps to resolve, respond to or otherwise deal with the matters in sub clause (f). 

14. MISCELLANEOUS

14.1        Conditions of assignment, subcontracting or advertising

The Client must obtain the Contractor’s consent in writing before it:

(a) assigns its rights or subcontracts any obligation under the Agreement; or

(b) advertises or publishes anything concerning the Agreement.

14.2        Client must maintain insurance

During the period of the Agreement, while the Client has the risk in the Goods and after the Client takes delivery and risk in the Goods, the Client must, at its own expense insure the Goods with a reputable insurer for their full replacement cost.

The Client must on the Contractor’s request, produce satisfactory evidence of the insurance. 

14.3        Relationship

The Contractor is an independent contractor of the Client. Nothing in these Conditions constitute any other type of relationship between the parties. 

14.4        No waiver

Failing to insist on strict performance on any Conditions of the Agreement is not a waiver of any later breach or default. 

14.5        Provisions are severable

Each provision of the Agreement is severable. Severance does not affect any other provision.

Variation must be in writing and notified 

14.6        Amendment of Conditions

The Contractor may by writing, amend, supplement or replace any Proposal, Specification or these Conditions. The changes then apply to any Agreement as the Contractor notifies after the date of change. 

14.7        Governing law

The law of Queensland, Australia governs this Agreement. 

14.8        Compliance with laws and standards

The Contractor must ensure that the Goods and any dealing between the Client and the Contractor comply with all laws and the standards that ensure the Goods are saleable in Australia including those relating to manufacturing, packaging, labelling and transportation.