Conditions of Service

1 definitions and interpretations

1.1 Definitions

CPI means the Consumer Price Index for the Brisbane region (or if CPI is not published for the Brisbane region, Australia) as published by the Australian Bureau of Statistics from time to time.

Customer means the purchaser of the Work, whose details are provided when making a booking on the Website, by phone or in person.

Deposit means the amount specified by the Seller when it provides the Customer with a quotation

Goods means all materials, parts and equipment provided or installed (or intended to be provided or installed) as part of the Works

Seller means T and N Plumbing Pty Ltd.

Site means the property or location at which the Seller will provide the Works

Tax Invoice has the same meaning as that within A New Tax System (Goods & Services Tax) Act 1999 (Cth)

Work means the plumbing and gas fitting services provided by the Seller

1.2 Interpretation

Nothing in these conditions exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.

2 General

These conditions (which will only be waived in writing signed by the Seller and Customer) will prevail over all conditions of the Customer's order, to the extent of any inconsistency.

3 Terms of sale

By making payment of the Deposit, the Customer agrees to purchase the Work and any other products sold by Seller on the terms and conditions set out herein.

4 Sellers quotations

(a) Seller's quotations are open for acceptance within the period stated in them or, when no period is so stated, within 30 days only after its date.

(b) The Customer must pay the Deposit to the Seller to accept the quotation. The Customer is not deemed to have accepted the quotation until the Deposit is received by the Seller in clear funds.

(c) The Seller may:

(i)  revoke any quotation before it is accepted by the Customer; or

(ii)  amend or revoke any quote which is not accepted within the period stated in the quote, or when no period is stated, within 30 days of the quotation being issued.

(d) The Seller will use reasonable measures to provide an accurate quotation, however the Seller shall not be bound to any quotation until such time as the Seller has had an opportunity to complete a physical inspection of the work requested by the Customer.

(e) Goods or Work that are not specifically listed in a quotation shall not be provided or included by the Seller unless otherwise agreed in writing.

(f)  Notwithstanding the provision and acceptance of a quotation, the Seller may alter or vary the amount payable for the Work or the Goods in accordance with clause 13.

5 bookings and deposit

(a) The Seller will not schedule or book in the Work until it has received the Deposit.

(b) If the Customer cancels the Work:

(i) More than 24 hours after booking but less than 48 hours before the date that the Work is scheduled for, the Seller may retain an amount from the Deposit which is equal to the Seller’s reasonable costs incurred in making arrangement to complete the Work, including (but not limited to) the cost of purchasing materials or labour in processing the cancellation; and

(ii) 48 hours or less before the date that the Work is scheduled for, the Deposit shall be forfeited to the Seller and the Customer shall have no right or claim to any part of the Deposit.

(c) If the Seller attends the Site and reasonably determines that it is:

(i) unable to access the areas of the Site it needs access to in order to provide Work; or

(ii) unable to complete the Work as it is unsafe to do so;

the Seller may cancel the Work and retain 100% of the Deposit.

(d) If the Customer reschedules the Work 24 hours or less before the date that Work is scheduled for, the Customer must pay the Seller a rebooking fee of $100.00 which will be added to the final invoice issued to the Customer.

(e) The Seller will use reasonable endeavours to ensure that it completes the Work on the scheduled date, however the Seller may cancel or reschedule the Work at any time as a result of:

(i) labour or material shortages;

(ii) inclement weather;

(iii) industrial action, civil strife, war or natural disasters; or

(iv) any other circumstances which were not reasonably foreseeable at the time the Seller scheduled the Work.

(f)  If the Seller cancels the Work under clause 5(e), the Seller must refund the Deposit to the Customer, and the Customer shall have no further claim on the Seller.

(g) To the fullest extent permitted by law, the Seller shall not be liable for any cost, loss, damage, penalty or other demand incurred by the Customer as a result of the Seller cancelling or rescheduling the Work under clause 5(e).

6 Payment

(a) The Seller may provide the Customer a Tax Invoice:

(i)  on completion of the Work; or

(ii)  on completion of each milestone or stage of the Work, if the Seller elects to charge for the Work in stages.

(b) The Customer must pay each Tax Invoice within seven (7) days of the Seller providing such same.

(c) The Seller may charge interest at a rate of 12% per annum (calculated daily) on overdue payments.

(d) If the Customer fails or refuses to make payment of the full amount shown within the Tax Invoice within 14 days of issuing the Tax Invoice, the Seller may – without waiver of any other rights the Seller has – do any or all of the following:

(i)  suspend or cancel any further Work that the Seller has agreed to complete for the Customer, and charge the Customer an amount equal to the Seller’s reasonable costs incurred in such suspension or cancellation; and

(ii)  recover the amount due for the Work, interest accrued, suspension or cancellation costs, and legal costs incurred (on a solicitor / own client basis) from the Customer as a liquidated debt.

(e) The Seller may charge the Customer an additional credit card fee for all card payments.

(f)  The Customer is not entitled to any “set off” against the amount shown in the Tax Invoice and must not withhold (or attempt to withhold) any payment due under the Tax Invoice for any reason whatsoever, including – but not limited to – alleged damages or costs incurred by the Customer.

7 Scope of work changes

(a) If the Seller becomes aware that the information on which the quotation was based is incorrect, incomplete, misleading, or otherwise inaccurate, the Seller may (in its absolute discretion):

(i) Revoke the original quotation, and provide the Customer with a new quotation, to be accepted by the Customer before the Seller commences the Work; or

(ii)  Refuse to complete the Work requested by the Customer, and if the Seller has already started the Work:

• Take reasonable steps to make the incomplete Work as safe as reasonably possible; and

• Charge the Customer for the time, parts and equipment used in commencing the Work, and then making the incomplete Work safe.

or

(iii) With the Customer’s consent, complete the Work requested by the Customer and charge the Customer an additional amount for the extra time, parts and equipment used in completing the Work, which shall be payable by the Customer in addition to the quotation amount.

(b) The Seller is not required to obtain the Customer’s prior consent or instructions prior to taking the steps referred to at clauses 7(a).

8 Defects and legal requirements

(a) The Customer acknowledges that in some cases, the Seller will be legally required to:

(i)  Report certain defects and faults in gas fittings and / or electrical systems to any relevant authority; and

(ii)  Rectify or make safe, certain defects and faults in gas fittings and / or electrical systems before leaving the Site.

(b) The Customer irrevocably authorises and directs the Seller to take the steps referred to at clause 8(a), if the Seller reasonably deems such steps necessary, and acknowledges that such steps may result in the Customer:

(i)  having its gas and / or electrical connections shut off until it is reasonably safe to reinstate them;

(ii)  being required to permit further persons on the Site to complete inspections;

(iii) becoming liable to pay inspection fees, penalties or fines if a relevant authority determines that the Customer has breached the relevant laws; and

(iv) becoming liable to pay the Seller’s reasonable additional costs incurred as a result of taking any steps shown at clause 8(a).

(c) The Customer must do all things reasonably necessary to allow the Seller to undertake the steps shown at clause 8(a).

9 Drawings and plans

(a) The Customer warrants to the Seller that all plans, designs, certificates, or other documents provided to the Seller in respect of the Work are:

(i)  accurate and show all information necessary for the Seller to complete the work; and

(ii)  where necessary, have been approved by the local authority, body corporate and any other body which is required to provide its consent prior to commencement of the Work.

(b) The Customer indemnifies, and holds harmless the Seller for any cost, loss, damage, demand, claim or penalty incurred as a result of the Seller’s reliance on the plans, designs, certificates or other documents provided to it by the Customer.

10 Faults in goods

(a) The Customer acknowledges that the Goods may have been manufactured or produced by a third-party, to which the Seller has no control over.

(b) To the fullest extent permitted by law, the Seller shall not be liable to the Customer for any loss, damage, cost, claim or demand because of any fault or defect in the Goods.

(c) This clause 10 does not restrict, modify, or exclude any guarantee or term under Competition and Consumer Act 2010 (Cth)).

11 Consumer guarantees

The Seller's liability for a breach of a condition or warranty implied by part 3-2, division 1 of the Australian Consumer Law (ACL) is limited to:

(a) in the case of Goods, any one or more of:

(i)  the replacement of the Goods or the supply of equivalent goods;

(ii)  the repair of the Goods;

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

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

(b) in the case of the Work:

(i)  the supplying of the Work again; or

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

12 Indemnification of suppliers by manufacturers

The Seller's liability under section 274 of the ACL is expressly limited to a liability to pay to the purchaser an amount equal to:

(a) the cost of replacing the Goods;

(b) the cost of obtaining equivalent goods; or

(c) the cost of having the Goods repaired,

whichever is the lowest amount.

13 Prices

(a) Unless otherwise stated all prices quoted by vendor are exclusive of Goods and Services Tax (GST).

(b) Prices quoted are calculated at the date of issue of a relevant quotation and include rates provided by third parties providers. These third party rates include the cost of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production (Third Party Rates). Third Party Rates may vary from the date of the quotation to the time of delivery of the Goods. The Customer will be liable for any increase in the Third Party Rates.

(c) Where the Work is to be completed in stages, or over a period of more than 120 days from the date that the Customer accepts the quotation, the Seller may increase the amount payable for the Work by an amount which is equal to the increase in CPI between the date that the Seller’s quotation was accepted, and the date that the Seller issues a Tax Invoice for the Work, or part of the Work.

(d) For the avoidance of doubt, the Seller is not required to reduce a quotation as a result of a reduction in CPI.

(e) If the Seller makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Customer's account.

14 Rights in relation to goods

(a) The Seller reserves the following rights in relation to the Goods until all Tax Invoices owed by the Customer to the Seller are fully paid:

(i) ownership of the Goods;

(ii)  to enter the Site (or the premises of the Customer or any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and

(iii) subject to, and in accordance with, the Personal Property Securities Act 2009 (Cth), to keep or resell any Goods repossessed pursuant to clause 19(a)(ii).

(b) If the Goods are resold, or products manufactured using the Goods are sold, by the Customer, the Customer will hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account. This will be held the beneficial property of the Seller and the Customer will pay such amount to the Seller upon request. Despite the provisions above, the Seller will be entitled to maintain an action against the Customer for the purchase price and the risk of the Goods shall pass to the Customer upon delivery.

15 Customer’s property

Any property of the Customer under the Seller's possession, custody or control is completely at the Customer's risk as regards loss or damage caused to the property or by it.

16 Personal Property Securities Act 2009 (Cth) (PPSA)

(a) This agreement is a security agreement.

(b) The interest of the Seller in the Goods and all proceeds from the sale of the Goods by the Customer to a third party is a security interest.

(c) The Customer consents to the Seller registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by the Seller to facilitate registration.

(d) Until title in the Goods has passed to the Customer as contemplated by clause 19 of this agreement, the Customer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create, a security interest over, the Goods in favour of the Customer or any third party. The parties agree that this clause will not prohibit the Customer from selling the Goods in the ordinary course of business.

(e) The Customer waives its rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.

(f)  The Seller and Customer agree that this agreement and all related information and documents are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. The Seller and Customer agree that the Seller will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.

(g) Unless the Goods are used predominantly for personal, domestic or household purposes, the Seller and the Customer agree that each of the following requirements or rights under the PPSA does not apply to the enforcement of the Seller's security interest in the Goods or of this agreement:

(i)  any requirement for the seller to give the Customer a notice of removal of accession;

(ii)  any requirement for the Seller to give the Customer a notice of the Seller's proposed disposal of the goods;

(iii) any requirement for the Seller to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;

(iv) any requirement for the Seller to give the Customer a statement of account if the Seller does not dispose of the Goods;

(v) any right the Customer has to redeem the Goods before the Seller exercises a right of disposal; and

(vi) any right the Customer has to reinstate this agreement before the Seller exercises a right of disposal of the Goods.

(h) Expressions defined in the PPSA have the same meaning when used in this agreement.

17 Place of contract

This agreement shall be governed by and construed in accordance with Queensland law. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of the governing law jurisdiction. Nothing in this clause is intended to undermine the jurisdiction of the Federal Court of Australia or Federal Circuit Court of Australia.