1.1“Jack’s” means ‘Jack’s Drainage’ (ABN 25 570 305 137)’, by its successors assigns or any person acting on behalf of Jack’s Drainage and with the authority.
1.2“Customer”? means the person/s buying the ‘Works’ or ‘Services’ as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3“Works” means all ‘Civil Works’, ‘Goods’, ‘Materials’, or ‘Services’ supplied by Jack’s to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Civil Works’, ‘Goods’, ‘Materials’, or ‘Services’, shall be interchangeable for each other).
1.4“Price”? means the Price payable for the ‘Works’ or ‘Services’ as agreed between Jack’s and the Customer in accordance with clause 4.
2.1The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions when the Customer places an order for or accepts delivery of the Works and Services.
2.2These terms and conditions may only be amended with Jack’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Jack’s.
3.Change in Control
3.1The Customer shall give Jack’s not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to,
changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by Jack’s as a result of the Customer’s failure to comply with this clause.
4.Price and Payment
4.1 At Jack’s sole discretion the Price shall be either:
a)as indicated on any invoice provided by Jack’s to the Customer; or
b)the Price as at the date of delivery of the Works according to Jack’s current price list; or
c)Jack’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2Jack’s reserves the right to change the Price if a variation to Jack’s’ quotation is requested. Payment for all variations must be made in full at their time of completion.
4.3At Jack’s’ sole discretion a
4.4Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by Jack’s, which may be:
a)on delivery of the Works;
b)before delivery of the Works;
c)the date specified on any invoice or other form as being the date for payment; or
d)failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Customer by Jack’s.
4.5Payment may be made by cash, cheque, bank cheque,
4.6Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Jack’s an amount equal to any GST Jack’s must pay for any supply by Jack’s under this or any other agreement for the sale of the Works. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes
and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5.Delivery of Works
5.1 Delivery (“Delivery”?) of the Works is taken to occur at the time that:
a)The Customer or the Customer’s nominated carrier takes possession of the Works at Jack’s address; or
b)Jack’s (or Jack’s nominated carrier) delivers the Works to the Customer’s nominated address even if the
Customer is not present at the address.
5.2At Jack’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
5.3Delivery of the Works to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.4The Customer must take delivery by receipt or collection of the Works whenever either is tendered for delivery. In the event that the Customer is unable to take delivery of the Works as arranged then Jack’s shall be entitled to charge a reasonable fee for redelivery of the Works and/or the storage of the Works.
5.5The Customer shall take delivery of the Works tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
a)such discrepancy in quantity shall not exceed five percent (5%); and
b)the Price shall be adjusted pro rata to the discrepancy.
5.6Jack’s may deliver the Works in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.7Any time or date given by Jack’s to the Customer is an estimate only. The Customer must still accept delivery of
the Works even if late and Jack’s will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6.1Risk of damage to or loss of the Works passes to the Customer on Delivery and the Customer must insure the Works on or before Delivery.
6.2If any of the Works are damaged or destroyed following delivery but prior to ownership passing to the Customer,
Jack’s is entitled to receive all insurance proceeds payable for the Works. The production of these terms and conditions by Jack’s is sufficient evidence of Leslie’ rights to receive the insurance proceeds without the need for any person dealing with Jack’s to make further enquiries.
7.1The Customer shall ensure that Jack’s has clear and free access to the work site at all times to enable Jack’s to undertake the works. Jack’s shall not be liable for any loss or damage to the site including without limitation, damage to pathways, driveways and concreted or paved or grassed areas.
8.Dimensions, Plans and Specifications
8.1All customary industry tolerances shall apply to the dimensions and measurements of the Works unless Jack’s and the Customer agree otherwise in writing. Jack’s shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer.
8.2If the giving of an estimate or quotation for the supply of Works involves Jack’s estimating measurements and quantities, it shall be the responsibility of the Customer to verify the accuracy of Jack’s estimated measurements and quantities, before the Customer places an order based on such estimate or accepts such quotation.
8.3Should the Customer require any changes to Jack’s estimated measurements and quantities, the Customer shall request such changes in writing. In the case of an estimate before placing an order and in the case of a quotation before acceptance.
9.1The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by Jack’s and the Customer acknowledges that the Works are bought relying solely upon the Customer’s skill and judgment.
9.2Where Jack’s provides advice to the Customer, such advice is given in good faith only. The Customer acknowledges that Jack’s shall not be liable for any claims howsoever arising out of any advice given.
10.Electronic Transactions Act
10.1Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with any applicable provisions of that Act or any Regulations referred to in that Act.
11.Retention of Title to Works
11.1Jack’s and the Customer agree that ownership of the Works shall not pass until:
a)the Customer has paid Jack’s all amounts owing to Jack’s; and
b)the Customer has met all of its other obligations to Jack’s.
11.2Receipt by Jack’s 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.
11.3It is further agreed that:
a)until ownership of the Works passes to the Customer in accordance with clause 11.1 that the Customer is only a bailee of the Works and must return the Works to Jack’s on request..
b)the Customer holds the benefit of the Customer’s insurance of the Works on trust for Jack’s and must pay to
Jack’s the proceeds of any insurance in the event of the Works being lost, damaged or destroyed.
c)the Customer must not sell, dispose, or otherwise part with possession of the Works other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Works then the Customer must hold the proceeds of any such act on trust for Jack’s and must pay or deliver the proceeds to Jack’s on demand.
d)the Customer should not convert or process the Works or intermix them with other Works but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Jack’s and must sell, dispose of or return the resulting product to Jack’s as it so directs.
e)the Customer irrevocably authorises Jack’s to enter any premises where Jack’s believes the Works are kept and recover possession of the Works.
f)Jack’s may recover possession of any Works in transit whether or not delivery has occurred.
g)the Customer shall not charge or grant an encumbrance over the Works nor grant nor otherwise give away any interest in the Works while they remain the property of Jack’s .
h)Jack’s may commence proceedings to recover the Price of the Works sold notwithstanding that ownership of the Works has not passed to the Customer.
12.Personal Property Securities Act 2009 (“PPSA”?)
12.1In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Personal Property present and acquired in the future. Goods and Personal Property present and that has previously been supplied and that will be supplied in the future by Jack’s to the Customer.
12.3The Customer undertakes to:
a)promptly sign any further documents and/or provide any further information (such information to be complete,
(i)register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii)register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii);
b)indemnify, and upon demand reimburse, Jack’s for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Works charged thereby;
c)not register a financing change statement in respect of a security interest without the prior written consent of Jack’s;
d)not register, or permit to be registered, a financing statement or a financing change statement in relation to the Works in favour of a third party without the prior written consent of Jack’s;
e)immediately advise Jack’s of any material change in its business practices of selling Works which would result in a change in the nature of proceeds derived from such sales.
12.4Jack’s 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.
12.5The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3) (d) and 132(4) of the PPSA.
12.6The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7Unless otherwise agreed to in writing by Jack’s, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8The Customer must unconditionally ratify any actions taken by the Jack’s under clauses 12.3 to 12.7.
12.9Subject 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.
13.Security and Charge
13.1In consideration of Jack’s agreeing to supply the Works, the Customer charges all of its rights, title and interest (whether joint or several) in any land, reality or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and
conditions (including, but not limited to, the payment of any money).
13.2 The Customer indemnifies Jack’s from and against all Jack’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising Jack’s rights under this clause.
13.3The Customer irrevocably appoints Jack’s and each director of Jack’s as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.
14.Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1The Customer must inspect the Works on delivery and must within thirty (30) days of delivery notify Jack’s in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote.
14.2The Customer must notify any other alleged defect in the Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Jack’s to inspect the Works.
14.3Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions
14.4Jack’s acknowledges that nothing in these terms and conditions purports to modify or exclude the
14.5Except as expressly set out in these terms and conditions in respect of the
14.6If the Customer is a consumer within the meaning of the CCA, Jack’s liability is limited to the extent permitted by section 64A of Schedule 2.
14.7If Jack’s is required to replace the Works under this clause or the CCA, but is unable to do so, Jack’s may refund any money the Customer has paid for the Works.
14.8If the Customer is not a consumer within the meaning of the CCA, Jack’s liability for any defect or damage in the
a) limited to the value of any express warranty or warranty card provided to the Customer by Jack’s at the Jack’s sole discretion;
b)limited to any warranty to which Jack’s is entitled, if Jack’s did not manufacture the Works;
c)otherwise negated absolutely.
14.9Subject to this clause 14, returns will only be accepted provided that:
a)The Customer has complied with the provisions of clause 14.1; and
b)the Jack’s has agreed that the Works are defective; and
c)the Works are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
d)the Works are returned in as close a condition to that in which they were delivered as is possible.
14.10Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, Jack’s shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
a)the Customer failing to properly maintain or store any Works;
b)the Customer using the Works for any purpose other than that for which they were designed;
c)the Customer continuing the use of the Works after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
d)the Customer failing to follow any instructions or guidelines provided by the Jack’s;
e)fair wear and tear, any accident, or act of God.
14.11Jack’s may in its absolute discretion accept
15. Intellectual Property
15.1Where Jack’s has designed, drawn or developed Works for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Jack’s.
15.2The Customer warrants that all designs, specifications or instructions given to Jack’s will not cause Jack’s to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Jack’s against any action taken by a third party against Jack’s in respect of any such infringement.
16.Consequences of Default
16.1Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of five percent (5%) per calendar month (and at Jack’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2If the Customer owes Jack’s any money the Customer shall indemnify Jack’s from and against all costs and disbursements incurred by Jack’s in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, Jack’s contract default fee, and bank dishonour fees).
16.3If 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.
16.4Without prejudice to any other remedies Jack’s may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Jack’s may suspend or terminate the supply of Works to the Customer. Jack’s will not be liable to the Customer for any loss or damage the Customer suffers because Jack’s has exercised its rights under this clause.
16.5Without prejudice to Jack’s other remedies at law Jack’s shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Jack’s shall, whether or not due for payment, become immediately payable if:
a)any money payable to Jack’s becomes overdue, or in Jack’s opinion the Customer will be unable to make a payment when it falls due;
b)the Customer become 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.
17.1Jack’s may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are due to be delivered by giving written notice to the Customer. On giving such notice Jack’s shall repay to the Customer any money paid by the Customer for the Works. Jack’s shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2In the event that the Customer cancels delivery of the Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Jack’s as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.Australian Privacy Principals (APPs) 12 March 2014
18.1The Customer agrees for Jack’s to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by Jack’s.
18.2The Customer agrees that Jack’s may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a)to assess an application by the 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 creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
18.3The Customer consents to Jack’s being given a consumer credit report to collect overdue payment on commercial credit.
18.4The Customer agrees that personal credit information provided may be used and retained by Jack’s for the following purposes (and for other agreed purposes or required by):
(a)the provision of Works; and/or
(b)analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Works, Works; and/or
(c)processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d)enabling the collection of amounts outstanding in relation to the Works.
18.5Jack’s may give information about the Customer to a CRB for the following purposes:
(a)to obtain a consumer credit report;
(b)allow the CRB to create or maintain a credit information file about the Customer including credit history.
18.6The information given to the CRB may include:
(a)personal information as outlined in 18.1 above;
(b)name of the credit provider and that Jack’s is a current credit provider to the Customer;
(c)whether the credit provider is a licensee;
(d)type of consumer or commercial credit;
(e)details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f)advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and Jack’s has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g)information that, in the opinion of Jack’s, the Customer has committed a serious credit infringement;
(h)advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
18.7The Customer shall have the right to request (by
(a)a copy of the information about the Customer retained by Jack’s and the right to request that Jack’s correct any incorrect information; and
(b)that Jack’s does not disclose any personal information about the Customer for the purpose of direct marketing.
18.8Jack’s will destroy personal information upon the Customer’s request (by
18.9The Customer can make a privacy complaint by contacting Jack’s via e- mail. Jack’s will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution
provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au .
19.1If 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.
20.Compliance with Laws
20.1The Customer and Jack’s shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
20.2The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works.
20.3The Customer agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
21.Building and Construction Industry Payments Act 2004 (Qld)
21.1 At Jack’s sole discretion, if there are any disputes or claims for unpaid Works and/or Materials then the provisions of the Building and Construction Industry Payment Act 2004 (Qld) may apply.
21.2Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions any of the Acts listed in clause 22.1 each as applicable.
22.1The failure by Jack’s to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Jack’s right to subsequently enforce that provision. 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.
22.2These terms and conditions and any contract to which they apply shall be governed by the laws of in which Jack’s has its principal place of business, and are subject to the jurisdiction of the courts in that state.
22.3Subject to clause 14. Jack’s 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 Jack’s of these terms and conditions (alternatively Jack’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
22.4The 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 Jack’s nor to withhold payment of any invoice because part of that invoice is in dispute.
22.5Jack’s may license or
22.6The Customer agrees that Jack’s may amend these terms and conditions at any time. If Jack’s makes a change to these terms and conditions, then that change will take effect from the date on which Jack’s notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Jack’s to provide Works to the Customer.
22.7Neither party shall be liable for any default due to any act of God, war, terrorism, strike,
22.8The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.