Terms and Conditions

1. Interpretation

1.1 Unless otherwise inconsistent with the context the word “person” shall also mean corporation;

1.2 Words importing the singular number shall be deemed to include the plural and vice versa. Words importing the male gender shall be deemed to include the female and neutral gender and vice versa.

1.3 “Contractor” shall mean Suna Holdings (Aust) Pty Ltd trading as OCA Plumbing Solutions its successors and assigns.

1.4 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Contractor to provide the Goods and/or Services as specified inany proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and

(b) if the Client is a partnership, it shall bind each partner jointly and severally; and

(c) if the Client is a part of a trust, shall be bound in their capacity as a trustee; and

(d) includes the Client’s executor’s, administrators, successors and permitted assigns.

1.5 “Goods and/or Services” shall include, depending on the context, Goods and/or Services, products, materials and services supplied and/or provided by the Contractor.

1.6 “accession” has the meaning given by s.10 of the Personal Property Securities Act 2009 (“PPSA”).

1.7 “PMSI” has the meaning of the term “Purchase Money Security Interest” in the PPSA.

1.8 “PPS Register” has the meaning in clause 8.4 (c).

1.9 “Price” means the price of the Goods and/or Services listed in any quotation given by the Contractor or listed in any agreement between the Contractor and Client, or listed in any price list published by the Contractor or orally advised by a representative of the Contractor. If the price is listed in more than one source then the price listed in the any written source shall prevail over an oral source or the latest written source shall prevail where there are multiple written sources.

1.10 “Proceeds” has the meaning given by s.31 of the PPSA.

1.11 “Security Interest” has the meaning given by s.12 of the PPSA.

1.12 “Contractors Security Interest” has the meaning defined in clause 8.4 (a)-(c).

1.13 “Supply” means the supply of Goods and/or Services under these Terms and Conditions of Trade.

2. Quotation, orders and agreement

2.1 A written quotation issued by the Contractor to the Client is an offer to sell and overrides the Contractor’s prevailing price list, if any. A written quotation expires on the date specified as an expiry date. If no expiry date is specified, the written quotation expires thirty (30) days after the date of the written quotation.

2.2 The Contractor may withdraw, revoke or vary a written quotation at any time prior to the Client submitting an order which accepts the offer to sell comprised by the written quotation.

2.3 The price quoted is subject to the Client ordering all of the goods described in the quotation. If the Client does not order all of the goods described in the quotation then the Contractor reserves the right to revise the pricing of the goods ordered, and the Client shall pay the revised price as invoiced by the Contractor.

2.4 An agreement for the sale of the goods, subject to these Terms and Conditions of Trade, is made when the Client communicates by writing or conduct) to the Contractor its acceptance of a written quotation or orders the goods or accepts the supply of the goods.

2.5 The price of the goods in the agreement may be increased or changed by the Contractor if:

(a) supply of the quoted goods does not start within thirty (30) days after acceptance of the quotation,

(b) supply under the agreement is stopped or suspended for more than thirty (30) days,

(c) supply under the agreement is changed in any way before, during or after commencement of supply, including but not limited to re-design of the project, the start date of supply, the completion date of supply and the agreed rate of supply, or

(d) supply under the agreement has not been completed within twelve (12) months of the date of the quotation.

2.6 Where in the period between acceptance of the quotation and delivery of the goods, the Contractor incurs an increase in the cost of producing and/or delivering the goods, the Contractor may increase the quoted price of those goods at any time prior to delivery.

2.7 Unless otherwise agreed in writing the price of goods ordered by the Client is the price applying at the time of despatch. Any price indications or price lists are subject to change at any time.

2.8 These terms and conditions shall be deemed to be incorporated into any agreement between the Contractor and the Client. Any terms and conditions contained in any order, offer, acceptance or other document of the Client and all representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent permitted by law.

2.9 The agreement herein constitutes the entire agreement between the Contractor and the Client, and all prior negotiations, proposals and correspondence are superseded by this agreement.

2.10 Unless agreed otherwise in writing, the Contractor may, by written notice, terminate the agreement constituted by the acceptance of any quotation twelve (12) months after the date of the first delivery of the goods.

2.11 In the event that the price for the supply of the goods, whether in full or in part, will cause the Client to exceed its approved credit limit then the Contractor may withhold supply until the moneys due on the credit account, including the price for the goods the subject of this clause, will be less than the credit limit.

2.12 The Contractor reserves the right to change the Price where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the Worksite, obscure building defects, ready availability of the Materials, variations in quantity or volume of Materials to be supplied inaccurate measurements supplied by the Client, health hazards and/or safety considerations (such as the discovery of asbestos and/or other toxic materials, etc.), prerequisite work by any third party not being completed, lack of required utilities, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, uneven work surfaces (due to sub-floor issues), or hidden or unidentified underground locations or services (as per underground locations clause), etc.) which are only discovered on commencement of the Works

3. Acceptance

3.1 In the event that the Contractor is required to provide the Works urgently, that may require the Contractor’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then the Contractor reserves the right to charge the Client additional labour costs (penalty rates will apply at time and a half normal rates), unless otherwise agreed between the Contractor and the Client.

3.2 The Client acknowledges and agrees that where the Contractor has performed temporary repairs that:

(a) the Contractor offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and

(b) the Contractor will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair required.

3.3 Where the Client is a tenant (and therefore not the owner of the land and premises where the Materials are to be installed) then the Client warrants that full consent has been obtained from the owner for the Contractor to install the Materials on the owner’s land and premises. The Client acknowledges and agrees that they shall be personally liable for full payment of the Price for all Works provided under this Contract and to indemnify the Contractor against any claim made by the owner of the premises (howsoever arising) in relation to the installation of the Materials and the provision of any related Works by the Contractor except where such claim has arisen because of the negligence of the Contractor when installing the Materials.

3.4 The Client agrees that they shall upon request from the Contractor provide evidence that:

(a) they are the owner of the land and premises upon which the Works are be undertaken; or

(b) where they are a tenant, that they have the consent of the owner for the Materials to be installed on the land and premises upon which the Works are be Undertaken.

4. Authorised Representatives

The Client acknowledges that the Contractor shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to the Contractor, that person shall have the full authority of the Client to order any Works and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to the Contractor for all additional costs incurred by the Contractor (including the Contractor’s profit margin) in providing any Works or variation/s requested thereto by the Client duly authorised representative

5. Specifications and Working Documentation

5.1 If the Client’s order refers to a Specification or Working Documentation then:

(a) the Client represents and warrants to the Contractor that any such Specification or Working Documentation does not and any Goods and/or Services produced by the Contractor pursuant to such Specification or Working Documentation will not breach or infringe upon the rights or property of any third party including, without limitation, patent, design, copyright or other intellectual property rights and the Client indemnifies and holds harmless the Contractor from and against any loss, damage, liability or costs suffered or incurred by the Contractor arising out a breach by the Client of the representations and warranties made by it pursuant to this clause;

(b) the Client releases the Contractor from and waives any rights or causes of action it may at any time have had against the Contractor in relation to any default or defect in any Goods and/or Services made pursuant to the Client’s Specification or Working Documentation provided by the Client to the Contractor; and

(c) the Client indemnifies the Contractor and must hold it harmless from and against any loss, damage, liability or cost suffered or incurred by the Contractor attributable, whether directly or indirectly to the terms of any Specification or Working Documentation provided by the Client to the Contractor.

5.2 Unless otherwise agreed the Client must deliver all working documents without charge to the Contractor prior to commencement of the supply of the Goods and/or Services. Where the Client submits electronic copies of working documents to the Contractor then the Contractor reserves the right to charge for the printing costs associated with those working documents.

6. Delivery

6.1 Any date quoted for delivery is an estimate only unless a guarantee in writing shall have been given by the Contractor. The Client shall accept and pay for Goods and/or Services if and when tendered notwithstanding any failure by the Contractor to deliver by the quoted date. Written advice to the Client that Goods and/or Services are ready for delivery whether in whole or in part shall constitute tendering of the Goods and/or Services.

6.2 The Contractor reserves the right to deliver by instalments and if delivery is made by instalments the Client shall not be entitled to terminate or cancel the agreement.

6.3 The Contractor may cancel the order if it determines that it will be unable to deliver the Goods and/or Services within a reasonable time.

6.4 The Client shall take delivery of the Goods and/or Services within seven (7) days of notification from the Contractor that the Goods and/or Services are ready for delivery.

6.5 Where the Client does not accept delivery of Goods and/or Services when the Goods and/or Services are ready for delivery by the Contractor, the Client shall be liable for additional charges at the Contractor’s current rates for storage and/or double handling or if there is no current rate then at a rate determined by the Contractor in its absolute discretion.

6.6 The Contractor, its officers, employees and agents shall not be liable to the Client or any other party for any loss or damage including direct or indirect or consequential injury loss or damage whatsoever by reason of any delay in delivery or non-delivery whether the same is due to the negligence of the Contractor or any other party, actions constituting fundamental breach of contract, strike or any other industrial action, or any other cause whatsoever.

7. Price and Payment

7.1 Unless otherwise agreed in writing payment terms are COD or seven (7) days from date of invoice for Residential Clients and OD or thirty (30) days from date of invoice for Commercial Clients at the Contractor’s sole discretion.

7.2 The Contractor may apply any monies paid to it by the Client in such manner and at such times as the Contractor, in its absolute discretion, determines.

7.3 Amounts due to the Contractor by the Client must be paid without deduction, retention or set-off of any kind and for any reason.

7.4 This term as to the payment shall be of the essence of the agreement.

8. Title and Personal Property Securities Act 2009

8.1 Notwithstanding the delivery of the Goods and/or Services or art thereof the Goods and/or Services remain the sole and bsolute property of the Contractor as full legal and equitable wner until such time as the Client shall have paid the Contractor he full purchase price together with the full price of any other oods and/or Services the subject of any other agreement with he Contractor.

8.2 The Client acknowledges that it receives possession of and olds Goods and/or Services delivered by the Contractor solely s bailee for the Contractor until such time as the full price thereof s paid to the Contractor together with the full price of any other oods and/or Services then the subject of any other agreement ith the Contractor and that a fiduciary relationship exists etween the Contractor and the Client. 8.3 Until such time as the Client becomes the owner of the Goods nd/or Services, it will;

(a) store them on the premises separately; (b) ensure that the Goods and/or Services are kept in good nd serviceable condition;

(c) secure the Goods and/or Services from risk, damage nd theft; and

(d) keep the Goods and/or Services fully insured against such isks that are usual or common to insure against in a business f a similar nature to that of the Client.

(d) if the Goods and/or Services are processed or commingled ith or made an accession to other Goods and/or Services by he Client, the Client shall record and make available to the ontractor on request the record of the date of the processing, r commingling or accession and hold the product, or mass or hole in a way that clearly indicates the Contractor’s title to he product, or mass or whole.

(e) the Client shall not deal with the Goods and/or Services, ither in their original state or as part of a product, mass or hole, for a consideration of less value than the amount ecessary to discharge the Client’s liability to the Contractor in ull for or in relation to the Goods and/or Services and shall etain the consideration or other proceeds of the Goods and/or ervices separate from all other property of the Client and in a anner, which clearly identifies it as such consideration or ther proceeds of the Goods and/or Services, product, mass or hole (unless otherwise agreed in writing by the Contractor).

8.4 By accepting the Supply the Client agrees that:

(a) a Security Interest is created in favour of the Contractor within the meaning of the PSA in:

(i) the Goods and/or Services;

(ii) the proceeds of sale of the Goods and/or Services;


(iii) any other property, to which the Goods and/or Services become an accession or with which they are commingled;

(iv) any product or mass, of which the Goods and/or Services become a part by manufacture, process, assembly or commingling.

(b) the Security Interest secures:

(i) the Client’s obligation to pay for the Goods and/or Services, and

(ii) any and all other obligations of the Client to pay money or money’s worth (including costs, expenses, damages or losses) for the benefit of the Contractor now or in the future or from time to time under this agreement.

(c) to the extent the Contractor’s Security Interest secures the Clients obligation to pay for any of the Goods and/or Services, it constitutes as a PMSI;

8.5 With respect to the Contractor’s Security Interest while it is retained by the Contractor, the Client:

(a) will when called upon by the Contractor sign any further documents or provide any further information which the Contractor may reasonably require to register a financing statement or financing change statement on the Personal Properties Security Register (“PPS Register”), or in connection with the issue of a verification statement;

(b) will not register or apply to register a financing statement

or financing change statement which is in any way connected with the Goods and/or Services (or any accession, mass or product, of which they form part) without the Contractor’s prior written consent, which may be given or withheld at the Contractor’s absolute discretion;

(c) will pay any costs or, expenses or losses incurred by the Contractor and keep the Contractor indemnified against any loss, damage or liability to third parties incurred in relation to:

(i) registering or seeking the release of any document relating to the Contractor’s Security Interest on the PPS Register; or

(ii) enforcing the Contractor’s security Interest (including its legal costs, on a solicitor-client basis);


(d) will give the Contractor at least fourteen (14) days written notice of any proposed change in its name, contact details, place of incorporation, address, location, nature of business, ownership, or business practice; and


(e) it irrevocably appoints the Contractor to be the Client’s attorney to do anything which the Client agrees to do under these Terms and Conditions and anything which the attorney thinks desirable to protect the Contractors Security Interest and the Client will take all steps required to ratify anything done by the attorney under this clause.


8.6 To the extent permitted by law, the Client waives its right to notices as a grantor under section 157 of the PPSA; acknowledging, that the collateral, subject of the Contractor’s Security Interest is properly described as commercial property. To the extent that they impose any obligation on the Contractor or grant any right to the Client and section 115(1) of the PPSA allows them to be excluded: sections 95, 118, 121(4), 125, 130, 132 (3), 132 (4), 135, 142, and 143 of the PPSA do not apply to this agreement or the Contractor’s security interest in the Goods and/or Services. To the extent, that Part 4.3 of the PPSA imposes any obligation on the Contractor or grants any right to the Client and s.115(7) permits, its application pursuant to s.116(2) is excluded.

8.7 Notwithstanding the payment by the Client of part or all of the price relating to the Goods and/or Services, any proceeds or other property in which the Contractor’s Security Interest will continue to exist in the Goods and/or Services, any Proceeds of the Goods and/or Services or other property, in which the Contractors Security Interest may apply (by operation by operation of these Terms and Conditions or statute) until the Contractors Security Interest is discharged in writing by the Contractor.

8.8 The Client will not do, or omit to do, nor allow to be done or omitted to be done, anything which might adversely affect the Contractors Security Interest.

8.9 If the Client sells the Goods and/or Services, either in their original state or as part of a product, mass or whole to its Clients, the Client, in its position as a fiduciary, assigns to the Contractor and authorises the Contractor to sue in its name to recover the benefit of any claim against its Clients for the price of the Goods and/or Services, the product, mass or whole, and, in addition to its obligations under the PPSA, it shall hold on trust for the Contractor and account to the Contractor for the consideration and all proceeds received in relation to the Goods and/or Services, product, mass or whole.

8.10 This clause shall apply even though the Contractor may give credit to the Client.


8.11 Without limiting the rights or remedies available to the Contractor under these Terms and Conditions, statute (including
under the PPSA) or other law, if the Client;


(a) (being a natural person) commits an act of bankruptcy;


(b) (being a corporation) does anything which entitles anyone to apply to wind up the Client or is subject to the appointment of an administrator or liquidator or receiver or controller or receiver and manager; or

(c)breaches any of these “Terms and Conditions”,(each of which is hereafter referred to as ‘an act of default’), the Contractor may take possession of and retain, resell or otherwise dispose of the Goods and/or Services or any product, mass or whole, of which they form part.

8.12 To the extent permitted by law, in the event of any such act of default, the Client authorises the Contractor to enter premises where the Goods and/or Services may be located to take possession of the Goods and/or Services or any product, mass or whole, of which they form part without notice to the Client. The Client shall indemnify the Contractor against all claims arising out of the entry by the Contractor into premises to take possession of the Goods and/or Services or any product, mass or whole, of which they form part.

9. Risk

9.1 Unless otherwise agreed in writing, risk in the Goods and/or Services shall pass to the Client at the time when the Goods and/or Services have been placed on the vehicle which is to effect delivery from the Contractor’s store or warehouse or delivery to the Client whichever is the sooner. The Goods and/or Services shall remain at the Client’s risk at all times unless and until the Contractor retakes possession of the Goods and/or Services pursuant to these terms and conditions.

9.2 The Client warrants that the structure of the premises or equipment in or upon which these Goods and/or Services are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Contractor shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation (including but not limited to insufficient or defective foundations, walls or other structures not erected by the Contractor)

10. Claims, Shortages and Defects

10.1 The Client agrees to check all Goods and/or Services received immediately upon delivery and all services immediately upon completion. The Client will not be entitled make any claim after the expiry of five (5) days from the date of delivery of the Goods and/or Services or the completion of the provision of services, for shortages or improper or defective or damaged Goods and/or Services or defective or improper services. 10.2 The Contractor will not be liable for any shortages or improper or defective or damaged Goods and/or Services or defective or improper services unless a written claim is made by the Client within five (5) days of the delivery of the Goods and/or Services or the completion of the provision of the services.

10.3 A restocking fee of 25% of invoiced amount may be charged for cancelled orders or returned non-defective Goods at the Contractor’s sole discretion.

10.4 Except to the extent to which conditions and warranties implied by law are not at law able to be excluded, all implied conditions and warranties are hereby excluded.

10.5 Insofar as Goods and/or Services or services supplied by the Contractor are not of a kind ordinarily acquired for personal domestic or household consumption, and unless the Client establishes that reliance on this provision would not be fair and reasonable, the liability for breach of a condition or warranty; implied into this agreement by the Competition and Consumer Act 2010 is limited:

(a) in the case of Goods and/or Services to any one of the following as determined by the Contractor;

(i) the replacement of the Goods and/or Services or the supply of equivalent Goods and/or Services; or

(ii) the repair of the Goods and/or Services; or

(iii) the payment of the cost of replacing the Goods and/or Services or of acquiring equivalent Goods and/or Services; or

(iv) the payment of the cost of having the Goods and/or Services repaired;

(b)in the case of services to any one of the following as determined by the Contractor;

(i) the supplying of the services again, or

(ii) the payment of the cost of having the services supplied again.

10.6 The Contractor shall not be liable in any circumstances for any;

(a) defects or damages caused in whole or in part by misuse, abuse, neglect, electrical or other overload, unsuitable lubricant, improper installation repair or alteration or accident.

(b) any transport freight charges installation removal labour or other costs;

(c) defects in Goods and/or Services not manufactured by it but will endeavour to pass on to the Client the benefit of any claim made by the Contractor and accepted by the manufacturer of such Goods and/or Services under a warranty given by the manufacturer of such Goods and/or Services provided that nothing contained in this subparagraph shall limit the rights of the Client to proceed against the Contractor pursuant to the Competition and Consumer Act 2010.

(d) technical advice or assistance given or rendered by it to the Client in connection with the manufacture construction or supply of Goods and/or Services for or to the Client.

10.7 Subject to clause 10.5 herein, the Contractor, its officers, employees or agents shall not be liable for any loss or damage whatsoever and howsoever arising whether direct indirect special or consequential or in respect of any claim whenever and however made for any loss or damage deterioration deficiency or other fault or harm in the Goods and/or Services supplied, work executed or services provided by or on behalf of or in any arrangement with the Client or occasioned to the Client or any third or other party or to his or their property or interest and whether or not due to the negligence of the Contractor its officers, employees or agents or actions constituting fundamental breach of contract.

10.8 The Client releases the Contractor, its officers, employees and agents, from all sums, money, actions, proceedings, accounts, claims, demands, costs and expenses whatsoever arising from or in relation to this Agreement.

10.9 The Client indemnifies the Contractor, its officers, employees and agents, from the payment of any monies or the cost of compliance with any orders made or agreements made arising from all claims, actions, proceedings, loss, damages, and expenses arising from or in relation to this Agreement.

11. Force Majeure

If by reason of any fact, circumstance, matter or thing beyond the reasonable control of the Contractor, the Contractor is unable to perform in whole or in part any obligation under this agreement, the Contractor shall be relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and shall not be liable to the Client in respect of such inability

12. Default

Upon the occurrence of default by the Client in compliance with these terms or any other agreement with the Contractor;

12.1 The Contractor may at its discretion withhold further supplies of Goods and/or Services or cancel this agreement, or vary the terms of this agreement without prejudice to its rights hereunder PROVIDED HOWEVER that the Contractor may at any time and from time to time upon such terms as it may determine waive any of its rights under this Clause, but without prejudice to its rights thereafter of any of the events hereinbefore referred to or upon the continuation after any such waiver of any state of affairs the subject of such waiver.

12.2 The Contractor may at its discretion cancel any credit facility provided to the Client and all monies due on all invoices issued to the Client but not paid shall be due and payable forthwith. The Contractor need not give any notice of the cancellation of the credit facility to the Client.

12.3 The Client shall pay to the Contractor interest at the rate of 2.5% per month on daily balances in respect of any amounts as may from time to time be overdue until paid and such money together with all interest shall be recoverable forthwith from the Client.

12.4 Without prejudice to any other right or remedy the Client shall indemnify the Contractor against any costs fees charges and disbursements charged by any solicitor engaged for the purpose of the collection or recovery of moneys due and payable by the Client to the Contractor on an indemnity basis, and any fees, charges, disbursements or commissions liable to be paid to or charged by any mercantile agency or debt collecting firm engaged for collection of moneys due and payable by the Client.

12.5 The Client shall pay to the Contractor an administration fee of $50.00 on the occurrence of every event of default.

13. Charge and Security Interest

13.1 The Client hereby charges with payment of any indebtedness to the Contractor all legal and beneficial interest (freehold or leasehold) in land and property, other than Personal Property to which the Personal Property Securities Act 2009 applies, held now or in the future by the Client and upon non-payment of any monies due to the Contractor pursuant to this Agreement the Contractor may take possession of such land or property and exercise and do all or any acts, powers and authorities vested in or given to mortgagees by any statutory provision or at common law or in equity. The Client agrees that if demand is made by the Contractor, the Client receiving such a demand will immediately execute a mortgage (incorporating the covenants contained in Memorandum No.Q860000 registered at the Land Titles Office in Sydney) or other instrument of security, or consent to a caveat, as required, and against the event that the Client fails to do so within a reasonable time of being so requested, the Client hereby irrevocably and by way of security, appoints any credit manager or solicitor engaged by the Contractor to be its true and lawful attorney to execute and register such instruments. Notwithstanding any other provision in this clause and in addition thereto the Contractor may lodge a caveat noting the interest given by this charge on the title of any property of the Client whenever it so wishes.

13.2 The Client grants a security interest to the Contractor in all of its present and after acquired property and in all of its present and future rights in relation to any personal property as defined in the Personal Property Securities Act 2009.

14. GST

The Client must pay to the Contractor any amount which is payable by the Contractor in respect of any supply to the Client on account of GST. Each charge or fee for a supply rendered by the Contractor does not include an amount to cover the liability of the Contractor for GST on any supplies made under this agreement which are taxable supplies within the meaning of the GST Act. In relation to taxable supplies made under this agreement the Contractor agrees to issue the Client with a tax invoice in accordance with the GST Act or a document satisfying the minimum information requirement set out in GSTR 2000/2003 to entitle a recipient of a taxable supply to claim an input tax credit without holding a tax invoice. “GST” means GST as defined in a New Tax System (Good and Services Tax Act 1999). “Supply” means supply as defined in a New Tax System (Goods and/or Services and Services Tax Act 1999).

15. Trusts

15.1 This clause applies if the Client is a trustee and whether or not the Contractor has notice of the Trust. Where the Client comprises two or more persons and any of those persons is a Trustee this clause applies to such Trustee.

15.2 The Client agrees that even though the Client enters into this Agreement as Trustee of the Trust, the Client also shall be liable personally for the performance and observance of every covenant to be observed and performed by the Client expressed or implied in this Agreement.

15.3 The Client warrants its complete, valid and unfettered power to enter into this Agreement pursuant to the provisions of the Trust including power to obtain the credit facility from the Contractor and to enter into the covenants to be observed and performed by them expressed or implied in this Agreement and warrants that its entry into this Agreement is in the due administration of the Trust.

15.4 The Client covenants that the rights of indemnity which it may have against the property of the Trust have not been, and in the future will not be, excluded, modified, released, lost or diminished (whether by agreement, breach of trust or otherwise).

15.5 The Client shall not, without the Contractor’s prior written consent:

(a) resign or be removed as Trustee of the Trust or appoint or allow the appointment of a new or additional Trustee of the Trust;

(b) amend or revoke any of the terms of the Trust;

(c) vest or distribute the property of the Trust or advance or distribute any capital of the Trust to a beneficiary or resettle any of the property of the Trust;

(d) permit a beneficiary to have the use, occupation, employment or possession of the property of the Trust;

(e) do or permit or omit to do an act or thing in breach of the Trust or which would permit the Trustee to be removed as Trustee of the Trust;

(f) exercise or permit or allow to be exercised a power to change the vesting date of the Trust or provide for an early determination of the Trust;

(g) lend any money, give any guarantee or incur any debt other than in the ordinary course of business of the Trust; or

(h) pay any of the income of the Trust to any beneficiary of the Trust if such payment will prejudice or affect the Client’s ability to pay all monies due to the Contractor.

16. Service

The parties agree that service of any notices, demands, proceedings summons suits or actions (“process”) upon the Client may be affected by the Contractor or its solicitors sending such process by prepaid post or by email to the address or email given in the Credit Application. Service shall be deemed to have been affected two (2) business days after the posting or emailing of the process

17. Jurisdiction

The parties agree that the terms and conditions applying to any credit account opened in the name of the Client and any other agreement between the Contractor and the Client shall be governed by the laws of the State or Territory nominated by the Contractor, in its absolute discretion, or failing any nomination the laws of the State of New South Wales in force for the time being and from time to time, and the parties irrevocably submit generally and unconditionally to the jurisdiction of the Courts of the State or Territory nominated by the Contractor or failing nomination the Courts of the State of New South Wales in respect of claims, proceedings and matters arising out of or in respect of the said credit account or any said Agreement.

18. Worksite Access and Condition

18.1 The Contractor is not responsible for the removal of rubbish from or clean-up of the building/construction Worksite/s. All rubbish generated by the Contractor will be placed in a designated areas appointed by the Client but the responsibility of removal of same is the Client or the Client’s agent, unless otherwise agreed.

18.2 Location of underground services by a licensed service locator is mandatory prior to commencement of the Works. “Dial Before You Dig” must be consulted and any potential underground services marked on the Worksite. 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. If the Client requests the Contractor to engage the service locator then this shall be in addition to the Price.

18.3 It is the intention of the Contractor and agreed by the Client that:

(a) the Client shall ensure that the Contractor has clear and free access to the Worksite at all times to enable them to undertake the Works.

(b) the Contractor shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Contractor; and

(c) it is the Client’s responsibility to provide the Contractor, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities; and

(d) the Client shall contact adjoining neighbours and gain their permission to remove any walls or fences on boundaries and unless otherwise agreed, it shall be the Client’s responsibility to organise either temporary fencing and/or security guards to secure the Worksite during the performance of the Works by the Contractor and shall be liable for all costs associated in taking all reasonable precautions to protect against destruction or damage by way of vandalism or theft. Failure to comply with this clause 55.2(c) in the event that the Worksite is destroyed or damaged due to vandalism then the cost of repair or replacement shall be borne by the Client.

18.4 Worksite Inductions

(a) in the event the Client requires an employee or subcontractor of the Contractor to undertake a Worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay the Contractor’s standard (and/or overtime, if applicable) hourly labour rate; or

(b) where the Contractor is in control of the Worksite, the Client and/or the Clients third party contractors must initially carry out the Contractor’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by the Contractor.

19. Compliance with Laws

19.1 The Client and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable, including any work health and safety (WHS) laws relating to building/construction Worksites and any other relevant safety standards or legislation.

19.2 Both parties acknowledge and agree:

(a) to comply with section 74AA (products associated with building Works and/or the Intended Use) and section74AE (Chain of Responsibility) of the QBCC Act 1991, in respect of all building products to be supplied during the course of the Works;

(b) that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.

19.3 Where the Client has supplied products for the Contractor to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose and are for their Intended Use and any faults inherent in those products. However, if in the Contractor’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with state and/or territory regulations, then the Contractor shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause [variation].

19.4 The Client shall be responsible for obtaining and paying for any necessary consent, approvals or certificates required for the Works, including those required subsequent to commencement of the Works.

19.5 The Contractor shall comply with the terms and conditions of all such consents and approvals in so far as such consents and approvals relate to the carrying out of the Works.

19.6 The Client shall be responsible for applying for and obtaining the Code Compliance Certificate(s) for the Works.

19.7 The Contractor shall provide the Client with all necessary information relating to the Works so that the Client may apply for a Code Compliance Certificate.

20. Dispute Resolution

20.1 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 so 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:

(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and

(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

21. Privacy Policy

21.1 All emails, documents, images or other recorded information held or used by the Contractor is Personal Information, as defined and referred to in clause 21.3, and therefore considered Confidential Information. The Contractor acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part 111C of the Act being Privacy Amendment (notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”) under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Contractor acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information held by the Contractor that may result in serious harm to the Client, the Contractor will notify the Client in accordance with the Act and/or GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.

21.2 Notwithstanding Clause 21.1, privacy limitations will extend to the Contractor in respect of Cookies where transactions for purchases/orders transpire directly from the Contractor’s website. The Contractor agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:

(a) IP address, browser, email Client type and other similar details;

(b) tracking website usage and traffic; and

(c) reports are available to the Contractor when the Contractor sends and email to the Client, so the Contractor may collect and review that information (“collectively Personal Information”). In order to enable/disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable/disable the Cookie’s first by selection the option to enable/disable provided on the website prior to proceeding with a purchase/order via the Contractor’s website.

21.3 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, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by the Contractor.

21.4 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:

(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 including the Client’s repayment history in the preceding two (2) years.

21.5 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.

21.6 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 law from time to time):

(a) the provision of Services; and/or

(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or

(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(d) enabling the collection of amounts outstanding in relation to the Services.

21.7 The Contractor may give information about the Client to a CRB for the following purposes:

(a) to obtain a consumer credit report;

(b) allow the CRB to create or maintain a credit information file about the Client including credit history.

21.8 The information given to the CRB may include:

(a) Personal Information as outlined in 21.3 above;

(b) name of the credit provider and that the Contractor is a current credit provider to the Client;

(c) whether the credit provider is a licensee;

(d) type of consumer credit;

(e) 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);

(f) 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 payment);

(g) information that, in the opinion of the Contractor, the Client has committed a serious credit infringement;

(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

21.9 The Client shall have the right to request (via email) from the Contractor:

(a) a copy of the Personal Information about the Client retained by the Contractor and the right to request that the Contractor correct any incorrect Personal Information; and

(b) that the Contractor does not disclose any Personal Information about the Client for the purpose of direct marketing.

21.10 The Contractor will destroy all Personal Information upon the Client’s request (via email) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

21.11 The Client can make a privacy complaint by contact the Contractor via email. The Contractor will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

22. Underground Locations & Dial Before You Dig

22.1 Unless otherwise agreed in writing between the Client and the Contractor it shall be the Client’s responsibility to advise the precise location of all underground services on the Worksite 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 the Worksite.

22.2 If the Client requests the Contractor to engage a service locator then this shall be in addition to the Price and “Dial Before You Dig” must be consulted and any potential underground services marked on the Worksite.

22.3 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 and notified as per clause 22.1.

23. Plumbing Specifications

23.1 The Client acknowledges that choked drains generally indicate pipelines are not fully efficient (i.e. breakages, cracks, negative fall or tree root entry); the drain line cannot be repaired or rectified just by clearing it on its own. Once cleared, the Contractor cannot give any guarantee against reoccurrence or further damage. In the event that the Client requests the Contractor to use drain/pipe unblocking equipment (including but not limited to, CCTV camera or an electric eel), and the Contractor does not recommend the use of such equipment due to the risk of the equipment becoming lodged or stuck, the Contractor may require the Client or their agent to authorise commencement of the Works in writing. If the drain/pipe unblocking equipment subsequently becomes lodged or stuck, the Client shall be responsible for the cost of repair, replacement and/or retrieval of said equipment.

23.2 The Client acknowledges that the Contractor is only responsible for components that are replaced by the Contractor and does not at any stage accept any liability in respect of previous goods and/or services supplied by any other third party that subsequently fail and found to be the source of the failure.

23.3 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation thereof and that any plumbing connections (including, but not limited to, pipes, couplings and valves, meter boxes, main switches) are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe plumbing and/or wiring, or dangerous access to crawl spaces or the roof) that the Contractor, or the Contractor’s employees, reasonably form the opinion that the Client’s premises is not safe for the Works to proceed then the Contractor shall be entitled to delay the provision of the Works (in accordance with clause 6.1 above) until the Contractor is satisfied that it is safe for the installation to proceed.

23.4 Where the Contractor gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the Worksite for the installation of the Materials or similar Works and such advice or recommendations are not acted upon then the Contractor shall require the Client or their agent to authorise commencement of the Works in writing. The Contractor shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.

23.5 The Contractor is not insured to remove furniture or fittings and will not do so, nor is the Contractor licensed to move electrical appliances.

23.6 The Client acknowledges that, under no circumstances, will the Contractor handle removal of asbestos product. In the event asbestos (or other hazardous material) is discovered on the Worksite:

(a) the Contractor shall suspend the Works; and the Client shall be fully responsible for the resolution of any resulting problems; and

(b) any additional cost incurred by the Contractor shall be added to the Price as per clause 7.

23.7 The Client acknowledges that Materials supplied may:

(a) exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. The Contractor will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur; and/or

(b) expand, contract or distort as a result of exposure to heat, cold, weather; and/or

(c) mark or stain if exposed to certain substances; and/or

(d) be damaged or disfigured by impact or scratching; and/or

(e) create undesirable smells caused by a system as a result of its normal operation.

24. Building and Construction Industry Security of Payments Act 1999 (NSW)

24.1 At the Contractor’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security Payments Act1999 (NSW) may apply.

24.2 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 1999 (NSW), except to the extent permitted by the Act where applicable.

25. Electronic Transactions

Electronic signatures shall be deemed acceptable to either party providing both parties have complied with relevant sections of the Electronic Transactions Act 2000 No8 (28.09.2000) or any other provisions of the Act or any regulations referred to in the Act.

26. Change in Control

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, email address, 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.

27. Miscellaneous

27.1 Nothing in these Terms and Conditions is intended to exclude, restrict or modify rights which the Client may have under the Competition and Consumer Act 2010 or any other legislation which may not be excluded, restricted or modified by agreement.

27.2 A party waives a right under these Conditions only if it does so in writing. A party does not waive a right simply because it fails to exercise the right, delays exercising the right or only exercises part of the right. A waiver of one breach of a term of these conditions does not operate as a waiver of another breach of the same term or any other term.

27.3 If a provision in these Terms Conditions is wholly or partly invalid or unenforceable in any jurisdiction, that provision or the part of it that is invalid or unenforceable must, to the extent of its invalidity or unenforceability in that jurisdiction be severed from this agreement. All the remaining provisions shall be enforceable between the Contractor and the Client.

27.4 The Contractor may assign or otherwise deal with the benefit of any agreement made pursuant to these Terms and Conditions without the consent of the Client

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