1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by SPD to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Equipment” shall mean all Equipment including any accessories supplied on hire by the Owner to the Customer (and where the context so permits shall include any supply of services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by the Owner to the Customer.
1.5 “Goods” shall mean all Goods supplied by SPD to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by SPD to the Customer.
1.6 “Services” shall mean all Services supplied by SPD to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.7 “Price” shall mean the Price payable for the Goods as agreed between SPD and the Customer 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 Any instructions received by SPD from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by SPD shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of SPD.
3.4 The Customer shall give SPD not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by SPD as a result of the Customer’s failure to comply with this clause.
3.5 Goods are supplied by SPD only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’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 SPD’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by SPD to the Customer in respect of Goods supplied; or
(b) SPD’s quoted Price (subject to clause 4.2) which shall be binding upon SPD provided that the Customer shall accept SPD’s quotation in writing within thirty (30) days.
4.2 SPD reserves the right to change the Price in the event of a variation to SPD’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to fluctuations in the currency exchange rate, or due to unforeseen circumstances, or as a result of increases in the costs of materials and labour to SPD) will be charged for on the basis of SPD’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At SPD’s sole discretion a non-refundable deposit may be required.
4.4 At SPD’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Customers shall be due thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
4.5 Time for payment for the Goods 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 seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to one and a half percent (1.5%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and SPD.
4.7 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 Goods
5.1 At SPD’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at SPD’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by SPD or SPD’s nominated carrier).
5.2 At SPD’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Customer’s account.
5.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.4 The failure of SPD to deliver shall not entitle either party to treat this contract as repudiated.
5.5 SPD shall not be liable for any loss or damage whatsoever due to failure by SPD to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of SPD.
6.1 If SPD retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, SPD is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SPD is sufficient evidence of SPD’s rights to receive the insurance proceeds without the need for any person dealing with SPD to make further enquiries.
6.3 Where the Customer expressly requests SPD to leave Goods outside SPD’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all.
7.1 SPD and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid SPD all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to SPD in respect of all contracts between SPD and the Customer.
7.2 Receipt by SPD 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 SPD’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until SPD shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from SPD to the Customer SPD may give notice in writing to the Customer to return the Goods or any of them to SPD. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) SPD shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to SPD then SPD or SPD’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as SPD has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to SPD for the Goods, on trust for SPD; and
(f) the Customer shall not deal with the money of SPD in any way which may be adverse to SPD; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of SPD; and
(h) SPD can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that SPD will be the owner of the end products.
8.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify SPD of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford SPD an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which SPD has agreed in writing that the Customer is entitled to reject, SPD’s liability is limited to either (at SPD’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 8.1; and
(b) SPD has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within fourteen (14) days of the delivery date; and
(d) SPD will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 SPD may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
10.1 For Goods not manufactured by SPD, the warranty shall be the current warranty provided by the manufacturer of the Goods. SPD 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 Goods.
11. Intellectual Property
11.1 Where SPD has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in SPD, and shall only be used by the Customer at SPD’s discretion.
11.2 The Customer warrants that all designs or instructions to SPD will not cause SPD to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify SPD against any action taken by a third party against SPD in respect of any such infringement.
11.3 The Customer hereby authorises SPD to utilise images of the Goods designed or drawn by SPD in advertising, marketing, or competition material by SPD.
12. Default and Consequences of Default
12.1 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 a half percent (2.5%) per calendar month (and at SPD’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by SPD.
12.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify SPD from and against all costs and disbursements incurred by SPD in pursuing the debt including legal costs on a solicitor and own client basis and SPD’s collection agency costs.
12.4 Without prejudice to any other remedies SPD may have, if at any time the Customer is in breach of any obligation (including those relating to payment) SPD may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. SPD will not be liable to the Customer for any loss or damage the Customer suffers because SPD has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) 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.
12.6 Without prejudice to SPD’s other remedies at law SPD shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to SPD shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to SPD becomes overdue, or in SPD’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer 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 Customer or any asset of the Customer.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which SPD may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer 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 SPD or SPD’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that SPD (or SPD’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 SPD elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify SPD from and against all SPD’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint SPD or SPD’s nominee as the Customer’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 SPD may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice SPD shall repay to the Customer any sums paid in respect of the Price. SPD shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by SPD (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Customer and/or the Guarantor/s agree for SPD to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by SPD.
15.2 The Customer and/or the Guarantor/s agree that SPD may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.
15.3 The Customer consents to SPD being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Customer agrees that personal credit information provided may be used and retained by SPD for the following purposes and for other purposes as shall be agreed between the Customer and SPD or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by SPD, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
15.5 SPD may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
16. Unpaid SPD’s Rights
16.1 Where the Customer has left any item with SPD for repair, modification, exchange or for SPD to perform any other Service in relation to the item and SPD has not received or been tendered the whole of the Price, or the payment has been dishonoured, SPD shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while SPD is in possession of the item;
(c) a right to sell the item.
16.2 The lien of SPD shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
17. Equipment Hire
17.1 The Equipment shall at all times remain the property of SPD and is returnable on demand by SPD. In the event that the Equipment is not returned to SPD in the condition in which it was delivered SPD retains the right to charge the Price of repair or replacement of the Equipment.
17.2 The Customer shall;
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.
(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by SPD to the Customer.
17.3 The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self insure, SPD’s interest in the Equipment and agrees to indemnify SPD against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
18.1 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.
18.2 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.
18.3 SPD shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by SPD of these terms and conditions.
18.4 In the event of any breach of this contract by SPD the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
18.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by SPD nor to withhold payment of any invoice because part of that invoice is in dispute.
18.6 SPD may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.7 The Customer agrees that SPD 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 SPD notifies the Customer of such change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.9 The failure by SPD to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect SPD’s right to subsequently enforce that provision.