1.1 “Contractor” shall mean Zica Group Pty Ltd trades as Sydney Abseiling Solutions its successors and assigns or any person acting on behalf of and with the authority of Zica Group Pty Ltd trades as Sydney Abseiling Solutions.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by the Contractor to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Works” shall mean all Works (including the supply of Materials) undertaken by the Contractor and described in the quotation and includes any advice or recommendations.
1.5 “Materials” shall means materials required to complete the Works.
1.6 “Price” shall mean the cost of the Works as agreed between the Contractor and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 In the event the Client requires domestic building works under the Home Building Act 1989 then this contract will not apply. Domestic building works under the Home Building Act 1989 require a specialised contract which will be provided by the Contractor.
3.2 Any instructions received by the Contractor from the Client for the supply of Works and/or the Client’s acceptance of Works supplied by the Contractor shall constitute acceptance of the terms and conditions contained herein.
3.3 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.4 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be amended with the written consent of the Contractor.
3.5 The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, 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.
3.6 Works are supplied by the Contractor only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price And Payment
4.1 At the Contractor’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Contractor to the Client in respect of Works supplied; or
(b) the Contractor’s quoted Price (subject to clause 4.2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days.
4.2 The Contractor reserves the right to change the Price in the event of a variation to the Contractor’s quotation beyond the reasonable control of the Contractor including, but not limited to, variations undertaken at the request of the Client, the effects of changes to wage rates due to industry awards, and the Contractor not being given clear and uninterrupted access to the site of the Works.
4.3 At the Contractor’s sole discretion a deposit may be required.
4.4 The Contractor may submit a detailed payment claim at intervals not less than one month for Works performed up to the end of each month. The value of Works so performed shall include the reasonable value of authorized variations, whether or not the value of such variations has been finally agreed between the parties, and the value of Materials delivered to the site but not installed.
4.5 At the Contractor’s sole discretion payment for approved Clients shall be made by installments in accordance with the Contractor’s payment schedule. 4.6 Time for payment for the Works shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
4.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to five percent (5.0%) of the Price), or by direct credit, or by any other method as agreed to between the Client and the Contractor.
4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery Of Works
5.1 At the Contractor’s sole discretion travel charges may be applicable and shall be in addition to the Price.
5.2 Subject to clause 5.4 it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.
5.3 Delivery of the Works to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.4 The Works commencement date will be put back 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.
5.5 The Contractor may deliver the Works by separate installments. Each separate installment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6 The Works shall be deemed to be completed when the Works carried out under this contract have been completed in accordance with any plans, instructions and specifications set out and all statutory requirements have been met.
5.7 The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated.
5.8 The Contractor shall not be liable for any loss or damage whatever due to failure by the Contractor to deliver the Works (or any of them) promptly or at all.
6. Client’s Responsibility
6.1 It is further agreed that any building/construction sites will comply with all New South Wales occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
7.1 If the Contractor retains ownership of the Works nonetheless, all risk for the Works passes to the Client on delivery.
7.2 If any of the Works are damaged or destroyed following delivery but prior to ownership passing to the Client, the Contractor is entitled to receive all insurance proceeds payable for the Works. The production of these terms and conditions by the Contractor is sufficient evidence of the Contractor’s rights to receive the insurance proceeds without the need for any person dealing with the Contractor to make further enquiries.
8.1 Unless otherwise stated elsewhere in this contract:
(a) only suitable new materials will be used;
(b) on completion of the Works the Contractor shall remove from the site all rubbish, vegetation, demolished or dismantled structures and any surplus Materials relating to the Works. All demolished, dismantled or surplus Materials will be the property of the Contractor unless specified elsewhere in this contract.
9.1 It is the intention of the Contractor and agreed by the Client that ownership of Materials shall not pass until:
(a) the Client has paid all amounts owing for the particular Materials; and
(b) the Client has met all other obligations due by the Client to the Contractor in respect of all contracts between the Contractor and the Client.
9.2 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 honoured, cleared or recognised and until then the Contractor’s ownership or rights in respect of Materials shall continue.
9.3 It is further agreed that:
(a)where practicable the Materials shall be kept separate and identifiable until the Contractor shall have received payment and all other obligations of the Client are met; and
(b)until such time as ownership of the Materials shall pass from the Contractor to the Client the Contractor may give notice in writing to the Client to return the Materials or any of them to the Contractor. Upon such notice the rights of the Client to obtain ownership or any other interest in the Materials shall cease; and (c)the Contractor shall have the right of stopping the Materials in transit whether or not delivery has been made; and
(d)if the Client fails to return the Materials to the Contractor then the Contractor or the Contractor’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Materials are situated and take possession of the Materials; and
(e)the Client is only a bailee of the Materials and until such time as the Contractor has received payment in full for the Materials then the Client shall hold any proceeds from the sale or disposal of the Materials, up to and including the amount the Client owes to the Contractor for the Materials, on trust for the Contractor; and
(f) the Client shall not deal with the money of the Contractor in any way which may be adverse to the Contractor; and
(g)the Client shall not charge the Materials in any way nor grant nor otherwise give any interest in the Materials while they remain the property of the Contractor; and
(h)the Contractor can issue proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials may not have passed to the Client; and
(i) until such time that ownership in the Materials passes to the Client, if the Materials are converted into other products, the parties agree that the Contractor will be the owner of the end products unless they have become fixtures
10.1 The Client shall inspect the Works on delivery and shall within seven (7) days notify the Contractor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Contractor an opportunity to inspect the Works within a reasonable time following delivery if the Client believes the Works are defective in any way. If the Client shall fail to comply with these provisions the Works shall be presumed to be free from any defect or damage. For defective Works, which the Contractor has agreed in writing that the Client is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) replacing the Works or repairing the Works.
11.1 Subject to the conditions of warranty set out in Clause 11.2 the Contractor warrants that if any defect in any workmanship of the Contractor becomes apparent and is reported to the Contractor within twelve (12) months of the date of delivery (time being of the essence) then the Contractor will either (at the Contractor’s sole discretion) repair the defect or remedy the workmanship.
11.2 The conditions applicable to the warranty given by Clause 11.1 are: (a)the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Materials; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by the Contractor; or
(iii) any use of any Materials otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) The warranty shall cease and the Contractor shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Contractor’s consent.
(c) In respect of all claims the Contractor shall not be liable to compensate the Client for any delay in either replacing or repairing the workmanship/Materials or in properly assessing the Client’s claim.
pointed in respect of the Client or any asset of the Client.
11.3 For Materials not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Contractor shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.
12. Intellectual Property
12.1 Where the Contractor has designed, drawn or written Works for the Client, then the copyright in those designs and drawings shall remain vested in the Contractor, and shall only be used by the Client at the Contractor’s discretion.
12.2 The Client warrants that all designs or instructions to the Contractor will not
cause the Contractor to infringe any patent, registered design or trademark in the
execution of the Client’s order.
13. Default & Consequences of Default
13.1 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 one 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.
13.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonor fees incurred by the Contractor.
13.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in pursuing the debt including legal costs on a solicitor and own client
basis and the Contractor’s collection agency costs.
13.4 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 payment), the Contractor may suspend or terminate the supply of Works to the Client and any of its other obligations under the terms and conditions. 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.
13.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
13.6 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of 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 in the event that:
(a)any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to meet its payments as they fall due; or
(b)the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14.Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which the Contractor may have howsoever:
(a)where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Contractor or the Contractor’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Contractor (or the Contractor’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b)should the Contractor elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Contractor or the Contractor’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15.1 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 delivered 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. The Contractor shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Works the Client shall be liable for any loss incurred by the Contractor (including, but not limited to, any loss of profits) up to the time of cancellation.
16. Privacy Act 1988
16.1 The Client and/or the Guarantor/s agree for the Contractor to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Contractor.
16.2 The Client and/or the Guarantor/s agree that the Contractor may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a)to assess an application by 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 credit worthiness of Client and/or Guarantor/s.
16.3 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes and for other purposes as shall be agreed between the Client and Contractor or required by law from time to time:
(a)provision of Works; and/or
(b)marketing of Works by the Contractor, its agents or distributors in relation to the Works; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Works; and/or
(d)processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e)enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Works.
16.5 The Contractor may give information about the Client to a credit reporting agency for the following purposes:
(a)to obtain a consumer credit report about the Client; and/or
(b)allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.Building and Construction Industry Security of Payments Act 1999
17.1 At the Contractors 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 1999 may apply.
17.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
18.1 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.
19.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
19.3 The Contractor shall be under no liability whatever to the Client for any indirect 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.
19.4 In the event of any breach of this contract by the Contractor the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Works.
19.5 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.
19.6 The Contractor may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.7 The Client agrees that the Contractor may review these terms and conditions at any time. If, following any such review, there is to be any 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.
19.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
19.9 The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’s right to subsequently enforce that provision.