13.1 Without prejudice to any other rights the Company may have, if the Customer fails to comply with any of the terms of these T&Cs (including in respect of any obligation to pay money to the Company when due) or makes any misrepresentation to the Company, the Company:
13.1.1 may treat the whole Agreement as repudiated; and
13.1.2 may refuse to supply and/or install further Goods and Services for the Customer and cancel all or any part of any Order of the Customer which remains unfulfilled without notice, until such time as the Customer has remedied its breach under this clause.
13.2 Without prejudice to the Company other remedies at law the Company shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:
13.2.1 any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to make a payment when it falls due;
13.2.2 the Customer 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
13.2.3 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14.1 Any amount not paid by the due date will incur interest at a rate of 5% above the Reserve Bank of Australia Cash Rate calculated and compounded daily.
14.2 The Customer shall indemnify the Company from and against, and agrees to pay the Company on demand, all costs and disbursements on an indemnity basis incurred by the Company in recovering of overdue amounts (including but not limited to a late payment administration fee of $100.00, other internal administration fees, legal costs on an indemnity basis, the Company’s contract default fees, dishonour fees and commissions paid by the Company to any commercial or mercantile agent).
14.3 The Customer agrees and acknowledges that any such interest, costs and/or expenses demanded under this clause are reasonable and shall be added to the total amount owing to the Company.
14.4 As security for any amounts due to the Company from time to time, the Customer charges all of its legal and equitable interest (both present and future) of whatsoever nature held in any and all property to the Company to secure the performance by the Customer of its obligations under these T&Cs and the Customer consents unconditionally to the Company lodging a caveat noting its interest in any real property owned by the Customer. The Customer indemnifies the Company on an indemnity basis against all costs and expenses incurred by the Company in connection with the preparation and registration of any such steps needed to perfect the security.
14.5 The Company will not be liable to the Customer for any Loss the Customer suffers because the Company has exercised its rights under this clause.
15.1 The Company retains legal and equitable title in any Goods and Services supplied and/or installed for the Customer until payment of the Price in full has been received by the Company. Until payment in full has been received, the following terms apply.
15.2 The Customer is only a bailee of the Goods and Services, and the Customer must keep the Goods and Services safe and free from deterioration, destruction, loss or harm, clearly designate the Goods and Services as the property of the Company, store them in such a way they are clearly identified as the property of the Company and keep full and complete records, firstly, of the physical location of the Goods and Services and, secondly, the ownership of the Goods and Services by the Company.
15.3 The Company is irrevocably entitled at any time and from time to time before sale or use of any item of Goods and Services by the Customer to inspect or to recover and retake possession of such Goods and Services and otherwise exercise in relation to the Goods and Services any of its rights whether those rights are as owner and/or unpaid seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way. In order to exercise such entitlement, the Company and its agents are irrevocably authorised by the Customer to enter any of the Customer’s premises or vehicles or those of any third party. The Customer agrees to obtain the consent of any such third party to such entry by the Company and to indemnify the Company and its agents for any liability arising from any entry upon such third parties’ premises or vehicles. The Company and its agents agree to take all reasonable care in removing the Goods and Services from such premises or vehicles but, to the extent this liability may be disclaimed by law, are not liable for any damage or injury to such premises caused by the removal of the Goods and Services.
15.4 This reservation of title and ownership is effective whether or not the Goods and Services have been altered from their supplied form or commingled with other Goods and Services.
15.5 The Customer holds the benefit of the Customer’s insurance of the Goods and Services on trust for the Company and must pay to the Company the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. The production of these T&Cs by the Company shall be sufficient evidence of the Company’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Company to make further enquiries.
15.6 The Company may commence proceedings to recover the price of the Goods and Services sold or performed notwithstanding that ownership of the Goods has not passed to the Customer.
16.1 Risk in relation to any Goods and Services passes to the Customer on installation or supply of the Goods and Services at the Site.
17.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
17.2 Upon agreeing to these T&Cs, the Customer acknowledges and agrees that these T&Cs constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and Services that have previously been supplied and/or installed and that will be supplied and/or installed in the future by the Company to the Customer.
17.3 The Customer undertakes to:
17.3.1 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 Company may reasonably require to:
17.3.1.1 register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
17.3.1.2 register any other document required to be registered by the PPSA; or
17.3.1.3 correct a defect in a statement referred to in clause 19.3;
17.3.2 indemnify, and upon demand reimburse, the Company for all expenses incurred by the Company exercising its rights under this clause 17, including but limited to, in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods and Services charged thereby;
17.3.3 not register a financing change statement in respect of a security interest without the prior written consent of the Company;
17.3.4 not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and Services in favour of a third party without the prior written consent of the Company; and
17.3.5 immediately advise the Company of any material change in its business practices which would result in a change in the nature of proceeds derived from such sales.
17.4 The Company and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
17.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
17.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
17.7 Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
17.8 The Customer shall unconditionally ratify any actions taken by the Company under this clause 17.
17.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
17.10 The Company reserves its right to exercise any rights the Company has under this clause 17. Nothing in this clause places any obligation on the Company whatsoever. Nothing in this clause entitles the Customer to any setoff, however occurring, including but not limited to, the Company’s failure or delay to exercise any of its rights or register or perfect any interest in any security however occurring. The Company has the exclusive right and sole discretion to pursue the Customer, in any manner open to the Company at law, for the full amount of any monies owing despite any security it may hold and, in any order, or manner the Company deems fit.
18.1 To the maximum extent permitted by law and subject to this Agreement, the Company’s total liability arising out of or in connection with its performance of its obligations pursuant to these T&Cs or arising out of or in connection with the installation and/or supply of specific Goods and Services (including pursuant to or for breach of these T&Cs or repudiation thereof, under statute, in equity or for tort, including negligent acts or omissions) is limited as follows:
18.1.1 the Company shall have no liability to the Customer for any Consequential Loss; and
18.1.2 the Company’s total aggregate liability for Loss, however arising, shall not exceed the GST exclusive aggregate price paid by the Customer to the Company for the specific Goods and Services that gave rise to the Loss in question. The limitations and exclusions in this clause 18.1.1 do not apply to the extent that any Loss is directly attributable to:
18.1.2.1 the personal injury or death caused by the Company’s default, breach of these T&Cs or negligence; or
18.1.2.2 fraud by the Company.
18.2 In no circumstances shall the Company be liable to the Customer or any third party for any:
18.2.1 addition of other materials or things to the installed and/or supplied Goods and Services;
18.2.2 improper or unsuitable handling or use of the Goods and Services;
18.2.3 any errors, discrepancies, quantities or requirements in any Order;
18.2.4 any variations in the quality or consistency of Goods and Services due to natural or environmental conditions;
18.2.5 plant, vehicles, personnel or equipment used or operated by the Customer or any third party;
18.2.6 shortage of Goods and Services due to miscalculation by the Customer or third party; or
18.2.7 restrictions on access, traffic or other delay or disruption outside the Company’s reasonable control.
18.3 Each party must take reasonable steps to mitigate any Loss it suffers or incurs.
19.1 The Customer is solely responsible for any damage or expense incurred to remove, restore, repair or replace its Site and/or any portion thereof, as well as any damage to the Company’s equipment, if any tool, drain cleaning cable, water jetting hose, or other equipment of the Company’s becomes stuck in a drainage line in the process of the Company undertaking installation and/or supply of Goods and Services.
19.2 Where there is sewage spillage, including one deemed hazardous, the Customer is liable for any associated clean-up costs.
19.3 Where drain cleaning is undertaken by the Company, the Company cannot guarantee that the removal of tree root growth or blockage alone will ensure that similar problems will not recur.
20.1 An invoice provided by the Company to a Customer is subject to the applicable provisions of Building and Construction Industry Security of Payments Act 1999 (NSW) or Building and Construction Industry (Security of Payments) Act 2009 (ACT) depending on the location of the Customer’s Site.
21.1 If the Company has any liability to pay Goods and Services Tax (GST) on the installation and/or supply of any Goods and Services to the Customer, the Customer must pay to the Company an amount equivalent to the GST liability of the Company at the same time as the consideration is paid for the Goods and Services (unless the consideration for that supply is expressed specifically to be GST inclusive).
22.1 The Company shall not be liable for any failure to perform or delay in provision or performance of the Goods and Services due to force majeure including but not limited to strikes, fire, floods, storms, explosions, riots, lock-outs, industrial action, injunctions, interruption of transport, accidents, inability to obtain supplies, war, terrorism, governmental action or any other circumstances beyond the Company’s control.
22.2 The failure by the Company to enforce any provision of these T&Cs shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.
22.3 If any provision of these T&Cs shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.4 These T&Cs are governed by and are to be interpreted according to the laws in force in the Australian Capital Territory and the parties submit to the non-exclusive jurisdiction of the courts operating in the Australian Capital Territory.
22.5 The Customer agrees that the Company may amend these T&Cs at any time. If the Company makes a change to these T&Cs, then that change will take effect from the date on which the Company notifies the Customer of such change or as updated on the Company website from time to time. Such updated T&Cs shall automatically apply to the supply and/or installation of Goods and Services made pursuant to any Order made on or from the date of notice or publication (whichever is earlier). The Customer will be taken to have accepted such changes if the Customer makes a further request for the Company to provide any Goods and Services to the Customer.
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