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Terms and Conditions

1. Definitions

  1. “Contractor” means Urgent Care Plumbing Pty Ltd, its successors, and assignors or any person acting on behalf of and with the authority of Urgent Care Plumbing Pty Ltd.
  2. “Client” means the person/s ordering the Works 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.
  3. “Works” means all Works or Materials supplied by the Contractor to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
  4. “Price” means the Price payable for the Works as agreed between the Contractor and the Client in accordance with clause 4 below.
  5. “Terms” means these Terms and Conditions, as amended from time to time in accordance with clause 22(f).

2. Acceptance

  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 any Works.
  2. These terms and conditions may only be amended with the Contractor’s consent in writing and shall prevail to the extent of any.
  3. Where the Contractor gives advice, recommendations, information, assistance or service to the Client or the Client’s agent, regarding the Materials or Works, then it is given in good faith and the Contractor shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Client relying on the same.
  4. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any applicable revisions of that Act or any Regulations referred to in that Act.

3. Changes in Control

  1. The Client shall give the Contractor 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 the Contractor as a result of the Client’s failure to comply with this clause.

4. Price and Payment

  1. At the Contractor’s sole discretion, the Price shall be either:
    1. As indicated on invoices provided by the Contractor to the Client in respect of Works performed or Materials supplied; or
    2. The Contractor’s quoted price (subject to clause 4b) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing or verbally within thirty (30) days.
  2. The Contractor reserves the right to change the price:
    1. If a variation to the Materials which are to be supplied is requested; or
    2. If a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
    3. Where additional Works are required due to the discovery or hidden or unidentifiable difficulties (including but not limited to: poor weather conditions, limitations to accessing the site, pre-existing conditions of wiring and/or plumbing, unknown wall cavities, availability of machinery, safety considerations including the discovery of asbestos, prerequisite work by a third party not being completed, change of design or hidden pipes and wiring underground or in walls, etc.) which are only discovered on commencement of the Works; or
    4. In the event of increases to the Contractor in the cost of labour or Materials which are beyond the Contractor’s control.
  3. At the Contractor’s sole discretion, a non-refundable (except to the extent of non-excludable rights under Australian Consumer Law) deposit may be required.
  4. Time for payment for the Works being of essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be:
    1. On the completion of Works;
    2. Before commencement of the Works or delivery of the Materials;
    3. By way of instalments/progress payments in accordance with the Contractor’s payment schedule. The Contractor may submit a detailed payment claim at intervals not less than monthly for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorized variations and the value of Materials delivered to the site but not installed;
    4. The date specified on any invoice or other form as being the date of payment; or
    5. Failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Contractor may cause the Contractor to cancel the Works at their discretion.
  5. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method agreed to between the Client and the Contractor.
  6. Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Contractor an equal amount to any GST the Contractor must pay for any supply by the Contractor under this or any other agreement for the sale of the Materials. The client must pay GST, without the 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.

5. Provision of Works

  1. Subject to clause 5b it is the Contractor’s responsibility to ensure that the Works start as soon as reasonably possible.
  2. The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to any Failure by the client to:
    1. Make a selection; or
    2. Have the site ready for the Works; or
    3. Notify the Contractor when the site is ready.
  3. At the Contractor’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
  4. The Contractor may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
  5. The Client shall take delivery of the Materials tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
    1. Such discrepancy in quantity shall not exceed five percent (5%); and
    2. The price shall be adjusted pro rata to the discrepancy.
  6. Any time specified by the Contractor for delivery of the Works is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavor to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Works as agreed solely due to any action or inaction of the Client, then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

6. Risk

  1. If the Contractor retains ownership of the Materials under clause 12 then:
    1. Where the Contractor is supplying Materials only, all risk for the materials shall immediately pass to the Client on delivery and Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by the Contractor or the Contractor’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present in the address);
    2. Where the Contractor is to both supply and install Materials then the Contractor shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works, all risk for the Works shall immediately pass to the client.
  2. Notwithstanding the provisions of clause 6a if the Client specifically requests the Contractor to leave Materials outside the Contractor’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at Client’s expense.
  3. The Contractor shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, the Contractor accepts no responsibility for any loss, damages or costs however resulting from these inaccurate plans, specifications or other information.
  4. All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations, applicable Act/s and Codes of Practice. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
  5. The Client acknowledges that the Contractor is only responsible for parts that are replaced by the Contractor and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third party that subsequently fail and found to be the source of failure, the Client agrees to indemnify the Contractor against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising.
  6. Where the Client has supplied goods for the Contractor to complete the Works, the Client acknowledges that they accept the responsibility for the suitability of purpose, quality and any faults inherent in the goods. The Contractor shall not be responsible for any defects in the goods, any loss or damage to the Works (or any part thereof), howsoever arising from the use of goods supplied by Client.
  7. The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical or plumbing pipe connections (including, but not limited to meter boxes, wirings and fittings) are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe plumbing or dangerous access to crawl spaces or the roof) that the Contractor or employees of the Contractor, reasonably from the opinion that the Client’s premises is not safe for installation of Materials to proceed then the Contractor shall be entitled to delay installation of the Materials (in accordance with the provisions of clause 5b above) until the Contractor is satisfied that it is safe for the installation to proceed. The Contractor may at its sole discretion agree to bring the premises up to a standard suitable for installation to proceed but all such works undertaken and any additional Materials supplied shall be treated as a variation and be for in addition to the Price.
  8. The Client acknowledges that the presence of plant or tree root growth and/or other blockages may indicate damaged pipework and therefore where the Contractor is requested to merely clear such blockages, the contractor can offer no guarantee against recurrence or further damage. In the event of collapse during the pipe cleaning process, the Contractor will immediately advise the Client of the same and shall provide the client with an estimate for the full repair of the damaged pipework.
  9. The Client acknowledges that Materials supplied may:
    1. Fade or change color overtime; and
    2. Expand, contract or distort as a result of exposure to heat, cold weather; and
    3. Mark or stain when exposed to certain substances; and
    4. Be damaged or disfigured by impact or scratching.

7. Client acknowledgments and responsibilities

  1. The Client acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in the Contractor’s or the manufacturer’s fact sheets, price list or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by the Contractor.
  2. If the Contractor notifies the Client that it intends to store onsite Materials, plant, equipment or tools to be used in performance of the Works, then the client shall designate an area for storage and shall take all reasonable precautions to protect such items against destruction, damage or theft. In the event that such items are destroyed, damaged or stolen then the cost of replacement shall be added to the contract price and will be shown as a variation as per clause 4b.
  3. The Client shall be responsible for ensuring that the Materials ordered are suitable for intended use.
  4. The Client agrees to:
    1. Remove any furniture, furnishings or personal goods from the vicinity of the Works and agrees that the Contractor shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.
    2. Allocate an area (per level) for the accumulation and removal of any rubbish created from the provision of the Works by the Contractor.
    3. Arrange the removal of such waste as per clause 7d(ii) which shall be at the Client’s expense.

8. Compliance with Laws

  1. Both the Client and the Contractor agree that they will at all times ensure that they comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works including work, health and safety (WHS) laws relating to building/construction sites and other relevant safety standards or legislation, particularly those in relation to Asbestos/Hazardous Materials and the safe removal and disposal of the same.
  2. The Client shall obtain (at the expense of the Client) all licenses and approvals (including Local Government approvals) that may be required for the Works, unless otherwise agreed. In the event that the Contractor is instructed to arrange said licenses and/or permits on behalf of the Client, then all associated such charges will be invoiced in accordance with clause 4b.

9. Access

  1. The Client shall ensure that the Contractor has clear and free access to the work site all times to enable them to undertake the Works. The Contractor shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Contractor.
  2. The Client must provide safe and reasonable access to water, electricity, and sanitary facilities for the Contractor. Failure to do so may result in delays and additional costs.

10. Underground Locations

  1. Prior to the Contractor commencing any work where the Contractor has not been contracted to locate services, the Client must advise Contractor of the precise location of all underground services on the site 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, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains and any other services that may be on site.
  2. Whilst the Contractor will take all care to avoid damage to any underground services, the Client agrees to indemnify the Contractor in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 10a.

11. Surplus Materials

  1. Unless otherwise stated elsewhere in this contract:
    1. Demolished Materials remain the Client’s property; and
    2. Materials which the Contractor brings to the site which are surplus remain the property of the Contractor.

12. Title

  1. The Contractor and the Client agree that ownership of the Materials shall not pass until:
    1. The Client has paid the Contractor all amounts owing to the Contractor; and
    2. The Client has met all of its other obligations of the Contractor.
  2. Receipt by the Contractor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honored, cleared or recognized.
  3. It is further agreed that:
    1. Until ownership of the Materials passes to the Client in accordance with clause 12a that the Client is only a Bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Contractor on request.
    2. The Client holds the benefit of the Client’s insurance of the Materials on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
    3. The production of these terms and conditions by the Contractor shall be sufficient evidence of the Contractor’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Contractor to make further enquiries.
    4. The Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for the Contractor and must pay or deliver the proceeds to the Contractor on demand.
    5. The Client should not convert or process the Materials 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 the Contractor and must sell, dispose of or return the resulting product to the Contractor as it so directs.
    6. Unless the Materials have become fixtures the Client irrevocably authorizes the Contractor to enter any premises where the Contractor believes the Materials are kept and recover possession of the Materials.
    7. The Contractor may recover possession of any Materials in transit whether or not delivery has occurred.
    8. The Client shall not charge or grant an encumbrance over the Materials nor grant otherwise give away any interest in all Materials while they remain the property of the Contractor.
    9. The Contractor may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passes to the Client

13. Personal Property Securities Act 2009 (PPSA)

  1. In this clause financing statement, financing change statement, security agreement and security interest has the meaning given to it by the PPSA.
  2. Upon assenting to the 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
  3. In all Materials and/or collateral (account) - being a monetary obligation of the Client to the Contractor for Works – that have previously supplied and that will be supplied in the future by the Contractor to the Client.
  4. The Client undertakes to:
    1. 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 the Contractor may reasonably require to:
      1. Register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities register;’
      2. Register any document required to be registered by the PPSA; or
      3. Correct a defect in a statement referred to in clause 13(d)(i)((1) or 13(d)(i)(2)
    2. Indemnify, and upon demand reimburse, the Contractor 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 Materials charged thereby;
    3. Not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;
    4. Not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favor of a third party without the prior written consent of the Contractor;
    5. Immediately advise the Contractor of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
  5. The Contractor 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.
  6. The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
  7. The Client hereby waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
  8. Unless otherwise agreed to in writing by the Contractor, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
  9. The Client shall unconditionally ratify any actions taken by the Contractor under clauses 13c to 13e.
  10. 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.

14. Security and Charge

  1. In consideration of the Contractor agreeing to supply the Works, 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, payment of any money).
  2. The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.
  3. The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on Client’s behalf.

15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

  1. The Client must inspect all Works on completion and must within seven (7) days of delivery notify the Contractor in writing of any evident defect/damage, shortage in quantity or failure to comply with the description or quote. The Client must notify the Contractor of any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to inspect the Materials or to review the Works provided.
  2. The Client must provide the Contractor with safe, reasonable and timely access to the site to enable inspection and rectification of any defect/damage, shortage in quantity or failure to comply with the description or quote. Failure to provide such access relieves the Contractor from liability for any delay or additional costs arising from the failure.
  3. The Client must not withhold, set off, retain or delay payment of any amount due under these Terms (including any progress payment or final payment) by reason of any alleged defect or warranty claim.
  4. 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). Nothing in these Terms is intended to exclude, restrict or modify any rights the Client may have under the CCA.
  5. The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
  6. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works.
  7. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.
  8. If the Client is a consumer within the meaning of the CCA, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2.
  9. If the Contractor is required to replace any Materials under this clause or the CCA but is unable to do so, the Contractor may refund any money the Client has paid for the Materials.
  10. If the Contractor required to rectify, re-supply or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then the Contractor may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.
  11. If the Client is not a consumer within the meaning of the CCA, the Contractor liability for any defect or damage in the materials is:
    1. limited to the value of any express warranty or warranty card provided to the Client by the Contractor at the Contractor’s sole discretion;
    2. Limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Materials.
    3. Otherwise negated absolutely.
  12. Subject to this clause 15, returns will only be accepted provided that:
    1. The Client has complied with the provisions of clause 15a; and
    2. The Contractor has agreed that the Materials are defective; and
    3. The Materials are returned within a reasonable time at the Client’s cost; and
    4. The Materials are returned in as close a condition to that which they were delivered as is possible.
  13. Notwithstanding clauses 15a to 15l but subject to the CCA, the Contractor shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
    1. The Client failing to properly maintain or store any Materials;
    2. The Client using the Materials for any purpose other than that for which they were designed;
    3. The Client continuing to use any materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
    4. Interference with the Works by the Client or any third party without the Contractor’s prior approval;
    5. The Client failing to follow any instructions or guidelines provided by the Contractor.
    6. Fair wear and tear, any accident or act of God.

16. Intellectual Property

  1. Where the Contractor has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Contractor and shall only be used by the Client at the Contractor’s discretion.
  2. The Client agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Contractor has created for Client.

17. 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 the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
  2. If the Client owes the Contractor any money, the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonor fees).
  3. Further to any other rights or remedies the Contractor may have under this contract, if a Client has made payment to the Contractor and the transaction has subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
  4. Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to the payment) under these terms and conditions the Contractor may suspend or terminate the supply of Works to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
  5. Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part or any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:
    1. Any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to make payment when it falls due;
    2. The Client becomes insolvent or bankrupt, 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.

18. Cancellation

  1. The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice, the Contractor shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to the Contractor for Works already performed. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
  2. In the event that the Client cancels the delivery of Works, the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including but not limited to, any loss of profits).

19. Privacy Act 1988

  1. The Client agrees for the Contractor to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B., occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Contractor.
  2. The Client agrees that the Contractor may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
    1. To assess an application by the Client; and/or
    2. 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
    3. To assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
  3. The Client consents to the Contractor being given a consumer credit card report to collect overdue payment on commercial credit.
  4. The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other agreed purposes or required by):
    1. The provision of Works; and/or
    2. Analyzing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
    3. Processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
    4. Enabling the collection of amounts outstanding in relation to the Works.
  5. The Contractor may give information about a Client to a CRB for the following purposes:
    1. to obtain a consumer credit report;
    2. Allow the CRB to create or maintain a credit information file about the Client including credit history.
  6. The information given to the CRB may include:
    1. Personal information as outlined in clause 19a) above;
    2. Name of the credit provider and that the Contractor is a current credit provider to the Client;
    3. Whether the credit provider is a licensee;
    4. Type of consumer credit;
    5. Details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
    6. Advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Contractor has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
    7. information that in the opinion of the Contractor, the Client has committed a serious credit infringement;
    8. advice that the amount of the Client’s overdue payment is equal to or more than one hundred fifty dollars ($150).
  7. The Client shall have the right to request (by email) from the Contractor:
    1. A copy of the information about the Client retained by the Contractor and the right to request that the Contractor correct any incorrect information; and
    2. That the Contractor does not disclose any personal information about the Client for the purpose of direct marketing.
  8. The Contractor will destroy personal information upon the Client’s request (by email) or if it is no longer required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
  9. The Contractor will destroy personal information upon the Client’s request (by email) or if it is no longer required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.

20. Dispute Resolution

  1. If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be resolved, either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
    1. referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
    2. conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

21. Building and Construction Industry Security of Payments Act 2002

  1. At the Contractor’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payments Act 2002 of Victoria may apply.
  2. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

22. General

  1. The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of the provision, nor shall it affect the Contractor’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.
  2. These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which the Contractor has its principal place of business and are subject to the jurisdiction of the Courts of Melbourne, Victoria.
  3. Subject to clause 15, the Contractor shall be under no liability whatsoever to the client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions (alternatively the Contractor’s defect shall be limited to damages which under no circumstances shall exceed the Price of the Works).
  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 the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
  5. The Contractor may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
  6. The Client agrees that the Contractor may amend these terms and conditions at any time. If the Contractor makes a change to these terms and conditions, then that change will take effect from the date on which the Contractor notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request to the Contractor to provide any Works to the Client.
  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.
  8. The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorizations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.
  9. These Terms apply to both consumer and business Clients. Where the Client is a consumer under the ACL, these Terms shall be read subject to the ACL to the extent of any inconsistency.

23. Call Out Fees

  1. A Call Out Fee shall be due shall be determined solely by the Contractor and fall due before attending the Client’s property, upon attending the Client’s property or within (7) days of the Contractor being ‘called out’ and providing an invoice.
  2. At the sole discretion of the Contractor, the call out fee may be increased if the call out is outside of 7am-3.30pm on Weekdays.
  3. At the sole discretion of the Contractor, the call out fee may vary pending the location of the site that the Contractor is ‘called out’ to.
  4. The Contractor reserves the sole discretion of deciding whether the call out fee applies.

24. Emergency Works

  1. The Client acknowledges that emergency Works attract premium rates. The Contractor may vary the Price for such Works to reflect urgency, after-hours attendance, public holiday rates, or additional resources required.
  2. The Contractor shall not be liable for delays caused by traffic, site access, availability of parts, or other matters reasonably beyond its control.
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