Cotts Plumbing Pty Ltd Terms and Conditions

1. Definitions
Client means any party engaging, or proposing to engage, the services of the Company either verbally or in writing, and has the same meaning as buyer, customer, consumer or purchaser.
Company means Cotts Plumbing, ABN 13 153 095 062
Goods mean tangible goods, tangible items, tangible parts, tangible products or tangible benefits.
Guarantor means person or persons, or entity who agrees to be liable for the debts of the Client on a principal debtor basis.
Report means any report or statement supplied by the Company in connection with the Services including but not limited to job dockets, reports, sketches, CAD files and drawings.
Work means the scope of work agreed between the Client and the Company. It may also include intangible goods, intangible products or intangible benefits.
Site of the Works means a single location or multiple locations relating to the performance of work by the Company for the Client or for the delivery of products, materials or goods by the Company for the Client, other than the Company premises.
Ordinary working hours means as provided by the relevant Award or Registered Industrial Agreement.
Contract Sum or price means the price or progress payment (including GST) including all matters that could be reasonably expected to be necessary for the completion of the work or stage.
Ordinary Working Hours means between 8am and 4pm
Monday to Friday, excluding Public Holidays
2. Agreement
In engaging the Company for the performance of any work, or for the supply of any products, materials or goods, the Client acknowledges acceptance of the associated costs and charges and agrees to make payment for such under the terms for payment set out herein. The Client acknowledges that it has represented ability to pay for the work to be completed.
Where a written quotation has been provided by the Company this document shall form part of that quotation.
3. Materials
All materials supplied shall be reasonably fit for the purpose for which they are supplied. Materials shall be covered by Manufacturers warranty.
4. Time for completion
4.1. Where a date for completion has been specified and agreed the Company shall proceed with the work with due diligence and complete the work on or before that date.
4.2. In the event that the execution of the work is delayed by a cause beyond the Company’s control, including the need to execute additional work pursuant to Clause 5 hereof, then the Company shall be entitled to a reasonable extension of time in which to complete the work and the if a date for completion has been specified and agreed the date for completion shall be adjusted accordingly.
4.3. The work shall be deemed completed when it has reached the state of being reasonably fit for use by the Client and the Company has so notified the Client.
5. Variations
5.1. All changes to the work required by the Client or necessitated by the operation of Clause 10 hereof shall be agreed in writing between the Client and the Company before the commencement of the work except where the need to execute the additional work arises out of an emergency or need to comply with safe work requirements.
5.2. The cost of the additional work including a reasonable allowance for the Company’s overhead and profit as agreed shall be added to the contract sum.
5.3. Where a direction of the Client under sub-clause (a) hereof results in a reduction of the work required of the Company, the contract sum shall be adjusted accordingly however the Company shall be entitled to retain a reasonable sum for overhead and profit as agreed by the Client.
5.4. No allowance has been made for de-watering, buried concrete, shoring or rock unless otherwise agreed in writing.
5.5. Any delay in approving variations could result in additional cost.
6. Prime cost allowances
Where the sum payable under this agreement is stated as a lump sum that includes a prime cost allowance; The Company shall purchase the item described or execute the work so identified keeping a record of such cost. In the event of the cost of the item exceeding the allowance stated hereof, the excess together with a reasonable allowance for overhead and profit shall be added to the contract sum. If the expenditure is less than the allowance, the unexpended portion of the allowance less a reasonable allowance for overhead and profit (calculated by reference to that excess) shall be deducted from the contract sum.
7. Defects liability period The Company shall, within a reasonable period of time, remedy defects in the work notified by the Client in writing to the Company, within one calendar month of the work reaching completion as defined by Clause 4.3 hereof.
8. Working hours
The price is calculated on the basis that the work would be executed during ordinary working hours. Where it becomes necessary to execute work outside ordinary working hours because of the operation of Clause 5.3 the additional cost to the Company shall be deemed a variation subject to Clause 5 and the contract sum adjusted under Clause 5.3 accordingly.
9. Compliance
The Client warrants that all equipment and fittings supplied by the Client, and to which the Company is required to connect to its works, will conform with relevant Australian Standards and to the requirements of all statutory bodies.
10. Acceptance
10.1. Any instructions received by the Company from the Client for the supply of work and/or the Client’s acceptance of work supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
10.2. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
10.3. Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the Company.
10.4. None of the Company’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the Company in writing nor is the Company bound by any such unauthorised statements.
10.5. The Client undertakes to give the Company not less than fourteen (14) days prior written notice of any proposed 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, email address or business practice).
11. Title
11.1. Title in any products, materials or service undertaken during the course of any work, or in the course of supply by the Company, shall pass to the Client only upon payment in full of an associated Tax Invoice issued by the Company.
11.2. The Company shall be entitled to an unpaid vendor's lien on any products, materials or goods until payment in full is received for an associated Tax Invoice issued by the Company
12. Delivery
12.1. The Company accepts no responsibility or duty for delivery but may elect to arrange delivery at its discretion without any liability and at the Client's costs and responsibility in all things.
12.2. The Company reserves the right to charge for any delivery.
12.3. The Client shall be deemed to have accepted delivery and liability for the products immediately the Company notifies the Client that any products are ready for collection or they are delivered to a carrier or to the Client's business premises or site whether attended or not.
12.4. A certificate purporting to be signed by an officer of the Company confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket.
12.5. The Company will not be liable for delay, failure or inability to deliver any products or perform any services.
12.6. Once the Client is notified products are ready for collection or delivery, the Client agrees to pay all costs of the Company in holding products for the Client.
12.7. The Client shall provide reasonable and proper access to any site specified for delivery and council approved crossing facilities.
12.8. The Client agrees to pay all costs and expenses arising from frustrated or delays in delivery.
12.9. The Client shall be responsible for any damage, costs (including clean-up costs) or fines caused in the course of delivery whether to footpaths or to any other property.
12.10. The Company may unilaterally delay, cancel or suspend any delivery for any period or cancel any agreement for sale without any liability to any party.
13. Privacy Act 2013
13.1. The Client agrees for the Company to obtain from a credit-reporting agency a credit report containing personal credit information about the Client in relation to credit provided by the Company.
13.2. The Client agrees that the Company may exchange information about Client with those credit providers named in the Application for a Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:- 13.2.1. To assess an application by Client;
13.2.2. To notify other credit providers of a default by the Client; and
13.2.3. To assess the credit worthiness of Client.
13.3. The Client consents to the Company being given a credit report to collect overdue payment on commercial credit (Section 18K (1) (h) Privacy Act 1988).
13.4. The Client agrees that Personal Data provided may be used and retained by the Company for the following purposes and for other purposes as shall be agreed between the Client and the Company or required by law from time to time:

13.4.1. provision of work;
13.4.2. marketing of Services and/or Goods by the Company, its agents or distributors in relation to the work;
13.4.3. analysing, verifying and/or checking the
Client’s credit, payment and/or status in relation to provision of work;
13.4.4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client;
13.4.5. and enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the work.
13.5. The Company may give, information about the Client to a credit reporting agency for the following purposes:
13.5.1. to obtain a consumer credit report about the Client; and/or
13.5.2. allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
14. Access for contractors
14.1. The owner must provide access for the Company and employee(s) or subcontractor(s) of the Company to carry out the work during hours allowed by the relevant statutory authority. The owner must remove any personal property likely to be damaged or to impede the work to avoid damage during work.
15. Defects
15.1. The Company shall make good any loss or damage to the work or property of the owner caused by the Company and employees, agents and subcontractors.
16. Payment of the contract sum or progress payment
16.1. The Client shall pay the contract price or progress payment in the manner shown in the quote or contract including any cost variation/s. The work or progress stage will be complete when it is finished in accordance with the quote or contract, free of apparent defects and with all rubbish and surplus material removed from site. The Client must pay the amount due on satisfactory completion of the work, or at each stage of the work as applicable. The Client must pay the amount on completion of the job unless by arrangement. The Company may request a deposit of up to 50% of the estimated job cost prior to commencement.
16.2. Payment terms are 7 days after invoice or unless varied by prior agreement.
16.3. The Company may submit progress claims on a day nominated by the Company in respect of both those identifiable parts of work completed for the Client by the Company and any identifiable unfixed materials and/or goods stored by the Company which are intended for supply and/or installation as part of work performed by the Company for the Client.
16.4. The Company reserves the right to charge all costs incurred in recovering or attempting to recover any goods or amounts owed by the Client, including any debt collectors’ commission and any solicitors’ costs and charges incurred in recovering or attempting to recover any amount owed by the Client. Any part payment shall firstly be credited against interest then debt recovery charges.
16.5. Credits will only be allowed if authorised by the Company and at the value determined by the Company. Claims for credits must be made in writing within seven (7) days of delivery and the invoice number and date must be quoted. Goods being returned are at the risk and cost of the Client at all times.
16.6. Late payments will attract interest at the NSW Supreme Court rate at the time.
16.7. In accordance with the Act, the Company may take a lien or charge over unfixed plan
17. Right of Set-Off
Unless these Terms expressly provide otherwise, you have no right of set-off against a payment due to us.
18. Default
18.1. If either party becomes bankrupt, or being a corporation goes into liquidation, then the other
party may by written notice terminate this agreement and recover damages.
18.2. If the Client fails to make a progress payment, including the final payment, within thirty days of The Company delivering a claim for such payment, then the Company may, after giving written notice of an intention to do so, suspend work forthwith. If the default continues for a further period of seven calendar days after the giving of the notice, the Company may by written notice determine his/her engagement under the contract.
18.3. If the Client interferes with or prevents the Company from carrying out the work, the Company may, after giving written notice of an intention to do so, suspend work forthwith. If the interference continues for a further period of seven calendar days or more after the giving of the notice first referred to, the Company may by written notice determine his/her employment under the contract.
18.4. In addition to determining his/her engagement under the contract, the Company may recover damages. If the Company fails to proceed with the work with due diligence or fails to comply with a written request to replace defective work or improper materials then if such default should continue for a period of seven calendar days after the giving of a written notice specifying such default, the Client may by written notice determine the Company’s engagement under the contract.
18.5. In addition to determining the Company’s engagement under the contract, the Client may recover damages.
19. Latent condition
19.1. The contract price has been calculated on the basis of an inspection of the site where the work is to be carried out. If the Company encounters conditions that an inspection could not reasonably have disclosed, then the additional cost of executing the work shall be treated as a variation under Clause 6 hereof.
20. Indemnity and liability
The Client indemnifies the Company against any liability or claim arising out of damage to the premises, the site or moveable property left at the site where the work is to be executed or in respect of injury to any person on the site or premises with the permission of the Client provided that the Company is not guilty of negligence that causes the damage or injury.
21. Risk & Liability
21.1. The liability of the Company in contract or in tort for any act, omission or default arising from the design or provision of any service or arising from the supply of any materials, products or goods shall not extend to any consequential, economic or indirect losses.
21.2. The Client retains liability for all risks associated with any work, in part or in full, performed by the Company on the Site of the Works, and for all risks associated with any products, materials or goods supplied or installed, in part or in full, on the Site of the Works at all times. The onus for insurance against such risks rests with the Client.
21.3. The Client shall ensure that the employees and agents of the Company in carrying out work for the Client shall not be exposed to any risk to health or safety. The Client shall indemnify the Company in the event that an employee or agent of the Company sustains injury or deterioration of health in consequence of a breach of this provision.
21.4. The liability of the Company to the Client arising as a result of any incident for breach of contract, any failure to follow instructions given to it by the Client, any negligence whether gross or not, breach of any warranty whether such warranty is express, implied or implied by legislation or however arising, shall be limited to any of the following as determined by the Company:
21.4.1. Supplying of the Services again; or
21.4.2. The cost of having the same Services supplied again, or
21.4.3. The amount of $200.00
22. Indemnity
The Client agrees to indemnify the Company with respect to any claim or liability to any other person or entity including but not limited to owners or occupiers of any site or premises for any liability arising from or in connection with the Company undertaking the work.
23. Insurance
The Company shall insure against:
23.1. Liability under the Worker’s Compensation Act and at common law in respect of persons employed by the Company.
23.2. Liability to third persons in respect of personal injury and property damage.
24. Warranties
The Company warrants all work performed by its employees and its authorised agents against defective workmanship and against defective materials for a period of 30 days. Such 30-day period commences upon the earliest of the completion of an identifiable and relative portion of the associated work or the receipt of the associated products, materials or services by the Client where the service provided by the Company encompasses none other than supply.
Any otherwise applicable warranty shall be voided by:
24.1. Modification to any work performed by the Company, or modification to any products, materials or goods supplied by the Company by any party other than the employees or authorised agents of the Company; or
24.2. Failure to sufficiently maintain any associated work performed by the Company, or failure to sufficiently maintain any associated products, materials or goods supplied by the Company; or
24.3. Misuse or use in any manner other than that intended of any work performed by the Company, or misuse or use in any manner other than that intended of any products, materials or goods supplied by the Company.
It is acknowledged between the Client and the Company that where the work involves the rectification of a blockage, the removal of the source of the blockage does not guarantee that there will be no recurrence of the problem and that no warranty is given in this regard.
It is further acknowledged that where electrical work is commenced there is a risk to public safety or legal requirements whereby the Company may be obliged to continue with the work until completion and to the extent required by the law the rights of the Client under Clauses 5 and 18.5 are modified.
It is also acknowledged that the Company does not guarantee any goods beyond the Manufacturer’s warranty.
25. Statutory warranties Where the work is residential building work within the meaning of the Home Building Act 1989 (NSW) the Company gives the following statutory warranties:
25.1. the work will be performed in a proper and workmanlike manner and in accordance with the plans and specifications;
25.2. materials supplied by the Company will be good and suitable for the purpose for which they are used, unless otherwise stated in the contract, those materials will be new;
25.3. the work will be done in accordance with, and will comply with the Home Building Act and Regulations or any other law;
25.4. the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time;
25.5. if the work consists of the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling;
25.6. the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the owner expressly makes known to the Company or another person with or express or apparent authority to enter into or to vary contractual arrangements on behalf of the Company, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the Company’s skill and judgment.
26. Intellectual Property Rights
26.1. All Intellectual Property Rights created in the course of undertaking the Clients work vests in and is the property of the Company from the time of its creation and the Client irrevocably and unconditionally assigns to the Company, free of additional charge, all of its right, title and interest in and to such Intellectual Property Rights. Where necessary, the Client must sign all documents and do all things reasonably required to ensure that such assignment is affected.
26.2. The Client warrants that it has or will procure from all relevant persons who are authors or makers of any Intellectual Property Rights a written assignment of all Intellectual Property Rights of such persons in such rights as necessary to give effect to subclause (a) and a written consent from all individuals involved irrevocably consenting to the Company exercising its rights in the Intellectual Property Rights in a manner that, but for the consent, would otherwise infringe the Moral Rights of those individuals (as defined in Copyright Act 1968 Cth).
27. Sub-contracting
We may sub-contract the production, manufacture, supply or delivery of all or some of the work.
28. Personal Property Securities Act 2009 (Cth)
('PPSA')
You acknowledge that these terms and conditions constitute a security agreement for the purposes of the PPSA. A security interest is taken in all Products previously supplied by us to you (if any) and all Products that may be supplied in the future by us to you securing the performance by you of your obligations under these terms and conditions.
You must ensure that no security interest (within the meaning of the PPSA) is created, exists or subsists over the Products (including any replacement part or other item that is incorporated into any Product), in your possession or control prior to title to the Products passing to you other than a security interest arising under these terms and conditions.
28.1. You must assist us to complete the registration of any financing statement in respect of the Products, and will do all things and provide all information necessary to enable us to perfect our security interest in the Products and complete any financing change statement
28.2. To the extent permitted by law, you irrevocably waive any rights you may have to receive notices under ss 121(4), 130, 132(4) and 135 of the PPSA, or to reinstate a security agreement following termination under s143.
28.3. You agree that you irrevocably waive any rights you may have to receive a verification statement (as defined in the PPSA).
29. The Competition and Consumer Act 2010 and Fair Trading Acts
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of Competition and Consumer Act 2010 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
30. Dispute Resolution
If any dispute or difference concerning this agreement arises between the Company and the Client, then either party may give the other written notice of the dispute. Within seven calendar days after the giving of such notice, the parties shall meet at least once to attempt to resolve the dispute and the person attending must have the authority to agree to a resolution. The parties may agree to have the dispute referred to conciliation, arbitration or a court of law. Nothing in this clause prejudices the rights of either party to have the dispute or associated matters dealt with under the Home Building Act 1989 or the Building and Construction Security of Payment Act 1999 as amended.
31. Warranty
For Goods not manufactured by the Company, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Company shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
32. Cancellation
If the Client requests cancellation of a contract between it and the Company or if it requests cancellation of any work being performed for it by the Company for the Client then the Client shall pay the Company for all work performed to date and the Company shall also be entitled to a sum of 20% of the agreed price of the total work or contract sum for profit, overhead and inconvenience.
33. Company's employees, agents or subcontractors
The Client agrees that during the term of engagement and for a period of not less than 24 months after the provision of work, the Client shall not solely or jointly with any other person or company whether directly or indirectly as principal, agent, employee, shareholder, director, partner, consultant or otherwise canvass, solicit, deal with or endeavour to entice away from the Company any employee, servant, agent or sub-contractor of the Company.
34. Review and other Terms and Conditions:
No terms and conditions sought to be imposed by the Client upon the Company shall apply, unless otherwise agreed in writing.
The Client will be deemed to have notice of any change to these Terms and Conditions immediately the Company adopts them.
35. Company's employees, agents or subcontractors
The Client agrees that during the term of engagement and for a period of not less than 24 months after the provision of Services, the Client shall not solely or jointly with any other person or company whether directly or indirectly as principal, agent, employee, shareholder, director, partner, consultant or otherwise canvass, solicit, deal with or endeavour to entice away from the Company any employee, servant, agent or sub-contractor of the Company.
36. Entire Agreement
These Terms and Conditions supersede any previous agreements, arrangements, documents or other undertakings either written or oral.
37. Governing Law
These Terms and Conditions are governed by and must be construed in accordance with the laws of the State of New South Wales. You submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters or things arising out of these Terms and Conditions.
38. Force Majeure
Neither party shall be liable in any manner whatsoever for any failure or delay in performing its obligations due to force majeure which expression for the purposes of this contract or quotation means any cause beyond the reasonable control of that party. In such event, the party concerned shall be entitled to a reasonable extension of time for the performance of such obligations.