TERMS AND CONDITIONS OF ENGAGEMENT
The following terms and conditions are the Terms and Conditions upon which M&M Trade Services Pty Ltd (ABN: 78 612 078 289) and any person acting on its behalf and with its authority (“Plumbdog”) will provide plumbing, gas, drainage, hot water and other goods and services to any person, business or corporation that engages Plumbdog to provide plumbing gas, drainage, hot water and other goods and services (“Client”).
The Parties now covenant and agree:
1. Interpretation and Definitions
1.1 In this document, unless the context requires otherwise:
(a) the singular includes the plural, the plural includes the singular and any gender includes each other gender;
(b) the word “person” includes a firm, a body corporate, an unincorporated association or an authority;
(c) the word “Goods” means the products, components, materials and equipment supplied by Plumbdog or its agents or assigns to the Client;
(d) the word “Site” means the location where the services are to be performed or are performed, or the location where the goods are to be delivered or installed or are delivered and installed.
(e) a reference to a person or a party includes that person’s or party’s executors, administrators, successors in title and assigns;
(f) an agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and severally;
(g) an agreement, representation or warranty on the part of two or more persons binds them jointly and severally;
(h) a reference to a thing includes a reference to the whole or any part of that thing;
(i) if a word or phrase is defined, cognate words and phrases have a corresponding meaning; and
(j) headings are for convenience only and do not affect the interpretation of this document.
(k) “GST” means the tax imposed by A New Tax System (Goods and Services Tax) Act 1999 and A New Tax System (Goods and Services Tax) Transition Act 1999 and related tax imposition Acts of the Commonwealth of Australia.
(l) “Quote” means any written quotation issued by Plumbdog to the Client for Goods or Services or both Goods and Services.
(m) “Services” mean the services provided or to be provided by Plumbdog or its agents or assigns to the client.
2 Basis of these Terms and Conditions
2.1 The basis of these Terms and Conditions is for Plumbdog to provide the client with plumbing services and for the client to pay Plumbdog for providing the same.
2.2 The client agrees that prior to placing an order with Plumbdog, it has read and agrees to the Terms and Conditions in this document.
2.3 These Terms and Conditions may only be amended with Plumbdog’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Parties.
2.4 Unless otherwise agreed in writing between the Client and Plumbdog, these Terms and Conditions apply to all dealings between the Client and Plumbdog in relation to the supply of Goods and Services by Plumbdog to the Client.
2.5 By proceeding or agreeing to proceed with a quotation issued by Plumbdog, instructing Plumbdog to supply Goods or Services, receiving the supply of Goods or Services from Plumbdog or making any part or full payment for the supply of any Goods or Services by Plumbdog, the Client is deemed to have accepted and agreed to be bound by these Terms and Conditions.
3 Changes to these Terms
3.1 From time to time, Plumbdog may need to change these Terms and Conditions to reflect its changing business. It may also need to change these Terms and Conditions if it is required to by law.
3.2 Plumbdog may in its sole discretion and without consulting the Client, amend these Terms and Conditions from time to time by notice in writing to the Client and the Client will from the date of receipt of the notice be bound in its dealings with Plumbdog by the amended Terms and Conditions.
4 Plumbdog’s Fees
4.1 Major works including hot water system replacement – Plumbdog may provide the Client with an estimate or quote prior to commencing any work for the Client. The Client will pay Plumbdog a deposit prior to Plumbdog commencing any work. Any deposit paid by the Client to Plumbdog is non-refundable. The deposit will be applied by Plumbdog to invoices rendered by Plumbdog over the course of providing the Goods and Services to the Client.
4.2 Service Work: Where Plumbdog provides Services to the Client that are not subject to a Quote, then those Services will be charged to the client in the following manner:
(a) Plumbdog will give an estimated price range for the works. The client will sign acceptance of this estimated price prior to Plumbdog proceeding with any works.
(b) Plumbdog cannot guarantee that a solution can be found each and every time, its charges are calculated based on estimated time on site and not per solution.
4.3 Plumbdog in its sole discretion may demand that the Client provide an upfront deposit for the supply of Goods or Services and the Client agrees to, upon receipt of such a demand from Plumbdog, make immediate payment of the deposit to Plumbdog. Any deposit paid by the Client to Plumbdog is non-refundable.
4.4 Plumbdog shall be at liberty to render invoices to the Client at any time that it deems reasonable for Goods and Services that have been supplied by Plumbdog to the Client.
4.5 In the event that the Client terminates or suspends the supply of Goods or Services by Plumbdog, the Client will forfeit any deposit paid by the client to Plumbdog including the Standard Deposit and the whole of any other amount already paid for the supply of Goods or Services and will not be entitled to any part or whole refund for any amount already paid to Plumbdog. This clause does not limit the right of Plumbdog to exercise its rights and remedies available to it at law against the Client for the termination or suspension of the supply of Goods and Services by the Client.
4.6 Unless previously withdrawn, a Quote is open for acceptance within the period stated in it by Plumbdog or, when no period is so stated, within 30 days after its date.
4.7 Plumbdog reserves the right to refuse in its sole discretion, and without having to provide any reason, to supply Goods and Services the subject of a Quote that has been accepted by the Client and in those circumstances the Client waives any right, entitlement or cause of action that it may have against Plumbdog by reason of Plumbdog refusing to supply the Goods and Services.
5 Payment of Invoices
5.1 All payments that are due to Plumbdog by the Client are to be made without deduction or set-off, whether legal or equitable.
5.2 The Client must immediately pay in full any invoice issued by Plumbdog to the Client for the provision of Goods or Services or both Goods and Services on the same day as the Client receives the invoice, unless payment terms are agreed in writing prior. Plumbdog’s maximum payment terms for account holders is 14 days net.
5.3 The Client is deemed to have received an invoice from Plumbdog if it is handed to the Client or an agent of the client, sent to the Client pursuant to clause herein or posted to the Site or otherwise emailed to the Client at an email address provided by the client or an agent of the Client or posted to the client at an address provided by the Client to Plumbdog or its agent.
5.4 Clients agents such as property managers and strata managers are responsible for ensuring enough funds to cover works are held in clients trust accounts at the time of issuing work orders. Any shortfall of monies held must be topped up by owners immediately so that invoices are paid within agreed payment terms to prevent interest charges as per clause 5.5.
5.5 If full payment of an invoice is not made by the Client in accordance with clause 5.2 herein, interest will be payable by the Client to Plumbdog at the rate of 12% per annum calculated daily on the unpaid amount from time to time without prejudice to Plumbdog’s other rights against the Client in respect of late or non-payment.
5.6 The Client shall not be treated as having paid for any whole or part of the Goods or Services or any invoice rendered by Plumbdog to the Client until such time as cleared funds are received by Plumbdog in payment for that particular part or whole of the Goods or Services or invoice.
5.7 The amount invoiced for Goods and Services by Plumbdog to the Client is prima facie evidence of the amount owing by the Client to Plumbdog.
5.8 The Client agrees to indemnify Plumbdog against all costs and expenses (including legal costs on an indemnity basis) incurred by Plumbdog or its agents in respect of the Client, relating to any enforcement of obligations and recovery of money due by the Client to Plumbdog for the Goods and Services.
5.9 Any error in an invoice supplied to the Client by Plumbdog must be communicated in writing to Plumbdog within 14 days of receiving the invoice, after which time the Client is deemed to have unconditionally and irrevocably accepted liability for the invoiced amount. Notwithstanding the communication, the full amount of the invoice shall remain as the amount owed by the Client to Plumbdog and Plumbdog shall take all reasonable efforts to investigate the error notified.
5.10 The client agrees that variation invoices will be issued for anything out of quoted scope of works and agrees to pay these upon completion of works and within agreed payment terms.
6 Change of Details
6.1 The Client will notify Plumbdog in writing within two (2) business days of any legal proceedings that have been commenced against the Client, any change in the ownership of the Client or its trading entity, any change in name of the Client or its trading entity, any material changes in the structure or shareholding of the Client, any change in Directors of the Client and any appointment of any provisional liquidator, liquidator, receiver, manager or Administrator to the Client and any other material changes that are likely to impact upon Plumbdog and its provision of Goods or Services or both Goods and Services to the Client.
7.1 Plumbdog may in its sole discretion cancel delivery or supply of Goods or Services or both Goods and Services at any time before they are receipted by the Client by giving verbal or written notice to the Client and following the giving of such notice Plumbdog will not be liable for any loss or damage arising whatsoever from such cancellation whether incurred prior to or after the notice of cancellation.
8.1 Unless otherwise stated, the price for the services is GST exclusive.
9 Force Majeure
9.1 Plumbdog will not be liable to the Client for any default or delay in the supply of Goods or Services due to a condition or reason that is out of the reasonable control of Plumbdog including flood, fire, storm, strike or industrial action.
10 Site Access and Information
10.1 The Client will ensure that Plumbdog has clear, safe and uninterrupted access to the Site until Plumbdog has completed its work. The Client will upon written notice from Plumbdog, immediately reimburse Plumbdog for any reasonable costs incurred by Plumbdog by reason of Plumbdog being unable to access the Site or unable to enjoy uninterrupted access to the Site.
10.2 Prior to Plumbdog commencing work for the Client, the Client must advise Plumbdog of the precise location of all covered mains and services on the Site and clearly mark the same, this includes underground, in floors, walls, and cavities. These mains and services that the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes and telephone cables. The Client is liable for and indemnifies, holds harmless and releases Plumbdog from any loss or damage suffered by the Client and against any loss or damage suffered by any other person and any claims, actions, proceedings brought by any person against Plumbdog by reason of any loss or damage caused to the Client or any person due to the Client failing to inform Plumbdog of the precise location of underground mains and services on the Site and clearly marking the same.
11.1 Plumbdog has copyright in The Design. The Design means, design concepts, drawings and documents made pursuant to these Terms and Conditions.
11.2 Plumbdog grants the Client an express but revocable license to use The Design for the project on the Site for which it was intended, subject to Plumbdog being able to revoke the license in writing at its discretion. Plumbdog will exercise its discretion reasonably.
12 Personal Property Securities Act 2009 (Cth)
12.1 The Client acknowledges until the Client pays in full for Goods supplied by Plumbdog, Plumbdog has title to the Goods. When Plumbdog supplies the Goods to the Client, this gives rise to a Security Interest in the Goods in favour of Plumbdog, being a Purchase Money Security Interest. Plumbdog may register any Security Interest derived from the Goods on the Personal Property Security Register (“PPSR”) in any manner that it chooses. The Client must provide Plumbdog with any information that it requires in order to effect registration with the PPSR. Regarding section 157(3) of the Personal Property Security Act 2009 (Cth), the Client unconditionally waives its right to receive any notice from Plumbdog in connection with the registration of a Security Interest by Plumbdog. The Client agrees that until title to the Goods passes to it that the Goods are not a fixture to land.
13.1 The Client (or its appointed agent) must:
(i) remain on Site during the supply by Plumbdog of Goods or Services or both Goods and Services; and
(ii) where requested by Plumbdog or its agent or employee, immediately confirm in writing whether Plumbdog has completed the supply of the Goods and Services according to a quote or work authorisation form.
13.2 The Client agrees to indemnify Plumbdog against all costs incurred by Plumbdog in relation to the supply of Goods or Services or Goods and Services to the Client, including but not limited to the costs incurred by reason of a breach of these Terms and Conditions by Plumbdog and the costs incurred in enforcing these Terms and Conditions.
13.3 The Client warrants, understands and accepts that it is solely responsible for ensuring that the Goods and Services to be provided by Plumbdog to the Client comply with any State or Commonwealth law or industry regulations, to which the Client is bound and that the Client has obtained all necessary third party consents to the supply of the Goods and Services by Plumbdog to the Client.
13.4 The Client indemnifies and holds harmless Plumbdog and its employees, agents and representatives against any demands, proceedings, judgements, liabilities, third party claims and costs (including legal costs on an indemnity basis) whether direct, indirect or consequential, caused by or arising out of, or in connection with the provision by Plumbdog of and use by the Client of the Goods or Services or Goods and Services.
13.5 The Client releases and indemnifies Plumbdog from all liabilities, losses, actions, proceedings, costs, expenses and damages claimed by any person or entity, including the Client, with respect to loss or damage to property or personal injury or death arising directly or indirectly in connection with the negligence or breach of these Terms and Conditions by any person, employee, agent or sub-contractor of Plumbdog in the provision of the Goods or Services or Goods and Services; Any malfunction or fault in the Goods or Services or Goods and Services; and any force of nature or matter outside of the control of Plumbdog.
13.6 The client indemnifies and holds harmless Plumbdog from any liability, loss, damage, claims, actions, proceedings, costs or expenses that arise by reason of damage caused to property located at Site during the provision by Plumbdog of Goods and Services to the Client including by reason of the Client failing to inform Plumbdog of the location of a pipe or cable.
13.7 To the extent permitted by law, Plumbdog’s total liability in connection with these Terms and Conditions will not exceed the price paid by the Client for the Goods or Services or Goods and Services and is limited at Plumbdog’s option to one of the following:
(i) in the case of the supply of Goods, to the replacement, repair or resupply of the Goods or to the cost of replacing, repairing or resupplying the Goods; and
(ii) in the case of the supply of Services, to supplying the Services again or the cost of supplying the Services again.
14 Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Client must inspect the Goods and Services upon receipt from the Client and notify the Client of any defects or shortages within seven (7) days from the date of receipt of the Goods and Services. If the Client does not notify Plumbdog within seven (7) days of any defects or shortages, the Client is deemed to have accepted the standard, condition and nature of the Goods and Services and to have waived any claim it may have had at the time or in the future against Plumbdog by reason of any defect in, or shortage of, any Goods and Services supplied to it by Plumbdog.
15.1 Plumbdog may in its sole discretion and for any reason that it deems appropriate and without having to provide any reason to the Client:
(a) terminate the agreement reached between the parties for the supply of Goods and Services pursuant to these Terms and Conditions; and
(b) cease or refuse to supply further Goods and Services to the Client; after giving the Client notice in writing of the termination or ceased supply (“Termination Notice”). Upon receipt of the Termination Notice, the Client must immediately pay:
(i) all and any outstanding amounts due to Plumbdog; and
(ii) the balance of all invoices issued by Plumbdog to the Client prior to the Termination Notice; and
(iii) an amount that represents the reasonable cost to Plumbdog in providing Goods or Services to the Client for which Plumbdog has not yet invoiced the Client.
16 Promotional Material and Privacy
16.1 In the course of dealing with the Client, Plumbdog will collect personal information about the Client from the Client which can be accessed by the Client and, where necessary, corrected by the Client by contacting Plumbdog by the post, email, telephone, or fax details available on the Plumbdog website (www.perth-plumber.com.au) from time to time.
16.2 The Client agrees to allow Plumbdog to collect and use the personal information collected from the Client for the purpose of supplying the Goods and Services to the Client and sending to the Client information about Plumbdog and its goods and services.
16.3 The Client understands and accepts that if the Client does not provide Plumbdog with the personal information required by Plumbdog for the purpose of supplying the Goods and Services to the Client, Plumbdog may not be able to supply the whole or part of the Goods or Services.
16.4 The Client agrees to Plumbdog disclosing its personal information to other organisations in order to facilitate supply of the Goods and Services to the Client.
16.5 The Client consents to Plumbdog obtaining from a credit reporting agency a credit report containing information about the Client in order to assess the Client’s credit worthiness, the Client’s request to Plumbdog to supply the Goods or Services or to collect overdue payments owed by the Client to Plumbdog.
16.6 The Client consents to Plumbdog disclosing personal information about the Client to a credit reporting agency or credit provider.”
17.1 Any provision of these terms which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make these terms enforceable, unless this would materially change the intended effect of these terms.
18 Governing Law
18.1 This Agreement shall be governed by the law of the State of Western Australia and Plumbdog and the Client consent to the non-exclusive jurisdiction of the Courts of the State of Western Australia.
19.1 No variation of or waiver of any of these Terms and Conditions will be of any force or effect unless they are agreed by Plumbdog in writing.”
20.1 Any notice required to be given or made by or pursuant to these Terms and Conditions shall be given or made in writing and signed by the party and must be posted, faxed or served as follows:
(a) where the notice is to Plumbdog, it must be sent to the address listed on its website (www.perth-plumber.com.au) from time to time or to such address as Plumbdog shall advise the Client in writing from time to time; and
(b) where the notice is to the Client, it must be sent to the Site or the registered address of the Client or an address which the Client has previously used to contact Plumbdog or to such address as the Client shall advise Plumbdog in writing from time to time.
Notices shall be deemed to have been received:
(i) if personally served, at the time of service;
(ii) if mailed, on the third business day after date of mailing; and
(iii) if sent by facsimile or email, on the business day the same is dispatched, or if not dispatched on a business day, the next business day following the dispatch.
The Client may not assign any of its rights, obligations or benefits under the Terms and Conditions without Plumbdog’s express consent in writing.