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TERMS & CONDITIONS OF TRADE

  1. Definitions
    • “C & R” means C & R All Spark Electrical Pty Ltd T/A C & R All Spark Electrical, its successors and assigns or any person acting on behalf of and with the authority of C & R All Spark Electrical Pty Ltd T/A C & R All Spark Electrical,
    • “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting C & R to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
      • if there is more than one Customer, is a reference to each Customer jointly and severally; and
      • if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
      • includes the Customer’s executors, administrators, successors and permitted assigns.
    • “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by C & R to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
    • “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between C & R and the Customer in accordance with clause 5
    • “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.

 

  1. Acceptance
    • The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.
    • These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Customer and C & R.
    • Any advice, recommendation, information, assistance or service provided by C & R in relation to Materials or Works supplied is given in good faith, is based on C & R’s own knowledge and experience and shall be accepted without liability on the part of C & R and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Materials or Works.
    • In the event that C & R is required to provide the Works urgently, that may require C & R staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then C & R reserves the right to charge the Customer additional labour costs.
    • The Customer acknowledges and agrees that:
      • in the event that the Customer requests C & R to make an emergency Call-Out for critical equipment undertaken during normal work hours being (8am-5pm Monday to Friday) then C & R reserves the right to charge a minimum Call-Out fee of one (1) hour labour cost plus a door to door charge or a per kilometre travelled rate plus any Materials used to undertake the Works unless otherwise agreed between C & R and the Customer.
      • in the event that the Customer requests C & R to make an emergency after hours Call-Out to carry out Works for critical equipment then C & R reserves the right to charge a minimum Call-Out fee of an additional three (3) hours labour cost, one and a half (1.5) times standard hourly rate, a per kilometre travelled rate plus any Materials used to undertake the Works, unless otherwise agreed between C & R and the Customer.
    • If C & R has been requested by the Customer to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
    • The Customer acknowledges and accepts that the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, C & R reserves the right to substitute comparable Materials (or components of the Materials) and vary the Price as per clause 6.2 In all such cases C & R will notify the Customer in advance of any such substitution, and also reserves the right to place the Customer’s order on hold until such time as C & R and the Customer agree to such changes.
    • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

  1. Errors and Omissions
    • The Customer acknowledges and accepts that C & R shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      • resulting from an inadvertent mistake made by C & R in the formation and/or administration of this contract; and/or
      • contained in/omitted from any literature (hard copy and/or electronic) supplied by C & R in respect of the Works.
    • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of C & R; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.

 

  1. Change in Control
    • The Customer shall give C & R 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, change of trustees or business practice). The Customer shall be liable for any loss incurred by C & R as a result of the Customer’s failure to comply with this clause.

 

  1. Price and Payment
    • At C & R’s sole discretion, the Price shall be either:
      • as indicated on invoices provided by C & R to the Customer in respect of Works performed or Materials supplied; or
      • the Price as at the date of delivery of the Works according to C & R’s current price list; or
      • C & R’s quoted Price (subject to clause 2) which shall be binding upon C & R provided that the Customer shall accept C & R’s quotation in writing within fourteen (14) days.
    • C & R reserves the right to change the Price:
      • if a variation to the Materials which are to be supplied is requested; or
      • if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
      • where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including but not limited to, any variation as a result of additional Works required due to unforeseen circumstances such as poor weather conditions, obscured site defects which require remedial work (e.g. poor existing wiring, paintwork, tiling and building works etc.), limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, hard rock barriers below the surface, iron reinforcing rods in concrete, limitations in accessing the site or hidden pipes and wiring in walls etc) which are only discovered on commencement of the Works; or
      • in the event of increases to C & R in the cost of labour or materials (including, but not limited to fluctuations in the exchange rates, or increases to C & R in the cost of taxes, levies etc) which are beyond C & R’s control.
    • Variations will be charged for on the basis of C & R’s quotation, and will be detailed in writing, and shown as variations on C & R’s invoice. The Customer shall be required to respond to any variation submitted by C & R within ten (10) working days. Failure to do so will entitle C & R to add the cost of the variation to the Price.  Payment for all variations must be made in full at the time of their completion.
    • At C & R’s sole discretion, a non-refundable deposit may be required.
    • Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by C & R, which may be:
      • on completion of the Works; or
      • before delivery of the Materials
      • by way of progress payments in accordance with C & R’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; or
      • thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
      • seven (7) days following the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by C & R.
    • Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and C & R.
    • 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 C & R nor to withhold payment of any invoice because part of that invoice is in dispute.
    • Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to C & R an amount equal to any GST C & R must pay for any supply by C & R under this or any other contract for the sale of the Materials. 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.

 

  1. Delivery of the Works
    • Subject to clause 2 it is C & R’s responsibility to ensure that the Works start as soon as it is reasonably possible.
    • The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that C & R claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond C & R’s control, including but not limited to any failure by the Customer to:
      • make a selection; or
      • have the site ready for the Works; or
      • notify C & R that the site is ready.
    • At C & R’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
    • C & R may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    • Any time specified by C & R for delivery of the Works is an estimate only and C & R will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that C & R is unable to supply the Works as agreed solely due to any action or inaction of the Customer, then C & R shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

 

  1. Risk
    • If C & R retains ownership of the Materials under clause 9 then:
      • where C & R is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;
        • the Customer or the Customer’s nominated carrier takes possession of the Materials at C & R’s address; or
        • the Materials are delivered by C & R or C & R’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
      • where C & R is to both supply and install Materials then C & R shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.
    • Notwithstanding the provisions of clause 1 if the Customer specifically requests C & R to leave Materials outside C & R’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.
    • If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Customer, C & R is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by C & R is sufficient evidence of C & R rights to receive the insurance proceeds without the need for any person dealing with C & R to make further enquiries.
    • In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Customer then the Customer agrees to notify C & R immediately upon any proposed changes. The Customer agrees to indemnify C & R against any additional costs incurred with such a relocation of electrical wiring.  All such variances shall be invoiced in accordance with clause 2.
    • The Customer warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If, for any reason (including but not limited to, the structure not being watertight, the discovery of asbestos, defective or unsafe wiring, or dangerous access etc.) C & R reasonably forms the opinion that the Customer’s property is not safe for the installation of Materials to proceed then C & R shall be entitled to delay installation of the Materials (in accordance with clause 2) until C & R is satisfied that it is safe for the installation to proceed. C & R may in agreement with the Customer bring the property up to a standard suitable for installation to proceed but all such Works undertaken and any additional Materials supplied shall be treated as a variation and be charged for in addition to the Price.
    • In the event asbestos or any other toxic substances are discovered at the property, that it is the Customer’s responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify C & R against any costs incurred by C & R as a consequence of such discovery. Under no circumstances will C & R handle removal of asbestos product.
    • C & R shall upon installation ensure that all Materials are to be installed in a manner that is fully compliant with industry standards. If, for any reason, the Customer specifically requires the Materials to be installed in any way which goes against C & R’s recommendations and/or falls below industry standards; a request detailing that requirement must be made in writing to C & R. Accordingly, C & R offers no warranty in regards to the aforementioned.
    • Where the Customer has supplied materials for C & R to complete the Works, the Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. C & R shall not be responsible for any defects in the materials, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
    • The Customer acknowledges that C & R is only responsible for Materials that are replaced/supplied by C & R, and in the event that other parts/goods, subsequently fail, the Customer agrees to indemnify C & R against any loss or damage to the Works, or caused by the goods, or any part thereof howsoever arising.
    • C & R accepts no responsibility for any damage or performance related problems with any Materials where they have not been used and/or maintained in accordance with C & R’s and/or the manufacturers’ recommendations.
    • The Customer acknowledges that all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in C & R’s fact sheets, price lists or advertising material are indicative only and that they have not relied on such information.
    • Where C & R requires that Materials, tools etc. required for the Works be stored at the site, the Customer shall supply C & R a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Customer’s responsibility.
    • C & R accepts no responsibility for any lost production for the Customer in the event of repeated faults in the Customer’s equipment.

 

  1. Customer’s Responsibilities
    • Prior to C & R commencing the Works the Customer must advise C & R of the precise location of all services on the site and clearly mark the same. The mains and services the Customer 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, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the site. Whilst C & R will take all care to avoid damage to any underground services, the Customer agrees to indemnify C & R in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per this clause 1.
    • It is the intention of C & R, and agreed by the Customer, that it is the responsibility of the Customer to:
      • ensure that C & R has clear and free access to the site at the agreed date/s and time/s to enable C & R to undertake the Works. C & R 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) unless due to C & R’s negligence; and
      • provide C & R with facilities, as specified by the C & R, (including, but not limited to, a suitable free power source) for the duration of the Works.

 

  1. Title
    • C & R and the Customer agree that ownership of the Materials shall not pass until:
      • the Customer has paid C & R all amounts owing to C & R; and
      • the Customer has met all of its other obligations to C & R.
    • Receipt by C & R 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.
    • It is further agreed that until ownership of the Materials passes to the Customer in accordance with clause 1:
      • the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to C & R on request.
      • the Customer holds the benefit of the Customer’s insurance of the Materials on trust for C & R and must pay to C & R the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
      • the production of these terms and conditions by C & R shall be sufficient evidence of C & R’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with C & R to make further enquiries.
      • the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for C & R and must pay or deliver the proceeds to C & R on demand.
      • the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of C & R and must sell, dispose of or return the resulting product to C & R as it so directs.
      • unless the Materials have become fixtures the Customer irrevocably authorises C & R to enter any premises where C & R believes the Materials are kept and recover possession of the Materials.
      • C & R may recover possession of any Materials in transit whether or not delivery has occurred.
      • the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of C & R.
      • C & R may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.

 

  1. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • Upon 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 Materials and/or collateral (account) – being a monetary obligation of the Customer to C & R for Works – that have previously been supplied and that will be supplied in the future by C & R to the Customer.
    • The Customer undertakes to:
      • promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which C & R may reasonably require to:
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 3(a)(i) or 10.3(a)(ii);
      • indemnify, and upon demand reimburse, C & R 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 Materials charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of C & R;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of C & R;
      • immediately advise C & R of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
    • C & R 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.
    • The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by C & R, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Customer shall unconditionally ratify any actions taken by C & R under clauses 3 to 10.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 10) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

  1. Security and Charge
    • In consideration of C & R agreeing to supply the Materials, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty 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).
    • The Customer indemnifies C & R from and against all C & R’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising C & R’s rights under this clause.
    • The Customer irrevocably appoints C & R and each director of C & R as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Customer’s behalf.

 

  1. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    • The Customer must inspect all Materials on delivery (or the Works on completion) and must within three (3) days of delivery notify C & R in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Customer must allow C & R to inspect the Materials or to review the Works provided.
    • Under 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 (Non-Excluded Guarantees).
    • C & R acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, C & R makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. C & R’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Customer is a consumer within the meaning of the CCA, C & R’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If C & R is required to replace any Materials under this clause or the CCA, but is unable to do so, C & R may refund any money the Customer has paid for the Materials.
    • If C & R is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then C & R may refund any money the Customer has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Customer which were not defective.
    • If the Customer is not a consumer within the meaning of the CCA, C & R’s liability for any defect or damage in the Materials is:
      • limited to the value of any express warranty or warranty card provided to the Customer by C & R at C & R’s sole discretion;
      • limited to any warranty to which C & R is entitled, if C & R did not manufacture the Materials;
      • otherwise negated absolutely.
    • Subject to this clause 12, returns will only be accepted provided that:
      • the Customer has complied with the provisions of clause 1; and
      • C & R has agreed that the Materials are defective; and
      • the Materials are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
      • the Materials are returned in as close a condition to that in which they were delivered as is possible.
    • Notwithstanding clauses 1 to 12.9 but subject to the CCA, C & R shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Customer failing to properly maintain or store any Materials;
      • the Customer using the Materials for any purpose other than that for which they were designed;
      • the Customer continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • interference with the Works by the Customer or any third party without C & R’s prior approval;
      • the Customer failing to follow any instructions or guidelines provided by C & R;
      • fair wear and tear, any accident, or act of God.
    • In the case of second hand Material, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second-hand Materials prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by C & R as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that C & R has agreed to provide the Customer with the second-hand Materials and calculated the Price of the second-hand Materials in reliance of this clause 11.
    • Notwithstanding anything contained in this clause if C & R is required by a law to accept a return then C & R will only accept a return on the conditions imposed by that law.

 

  1. Intellectual Property
    • Where C & R has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in C & R, and shall only be used by the Customer at C & R’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of C & R.
    • The Customer warrants that all designs, specifications or instructions given to C & R will not cause C & R to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify C & R against any action taken by a third party against C & R in respect of any such infringement.
    • The Customer agrees that C & R may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which C & R has created for the Customer.

 

  1. Default and Consequences of Default
    • 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 C & R’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Customer owes C & R any money the Customer shall indemnify C & R from and against all costs and disbursements incurred by C & R in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, C & R’s contract default fee, and bank dishonour fees).
    • Further to any other rights or remedies C & R may have under this contract, if a Customer has made payment to C & R, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by C & R under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.
    • Without prejudice to C & R’s other remedies at law C & R shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to C & R shall, whether or not due for payment, become immediately payable if:
      • any money payable to C & R becomes overdue, or in C & R’s opinion the Customer will be unable to make a payment when it falls due;
      • the Customer has exceeded any applicable credit limit provided by C & R;
      • the Customer becomes insolvent or bankrupt, 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
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

 

  1. Cancellation
    • Without prejudice to any other remedies C & R may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions C & R may suspend or terminate the supply of Works to the Customer. C & R will not be liable to the Customer for any loss or damage the Customer suffers because C & R has exercised its rights under this clause.
    • C & R may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Customer. On giving such notice C & R shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to C & R for Works already performed. C & R shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by C & R as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • Cancellation of orders for products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

 

  1. Privacy Act 1988
    • The Customer agrees for C & R 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 C & R.
    • The Customer agrees that C & R may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
      • to assess an application by the Customer; and/or
      • to notify other credit providers of a default by the Customer; and/or
      • 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
      • to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
    • The Customer consents to C & R being given a consumer credit report to collect overdue payment on commercial credit.
    • The Customer agrees that personal credit information provided may be used and retained by C & R for the following purposes (and for other agreed purposes or required by):
      • the provision of Works; and/or
      • analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Works; and/or
      • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
      • enabling the collection of amounts outstanding in relation to the Works.
    • C & R may give information about the Customer to a CRB for the following purposes:
      • to obtain a consumer credit report;
      • allow the CRB to create or maintain a credit information file about the Customer including credit history.
    • The information given to the CRB may include:
      • personal information as outlined in 1 above;
      • name of the credit provider and that C & R is a current credit provider to the Customer;
      • whether the credit provider is a licensee;
      • type of consumer credit;
      • 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);
      • 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 C & R has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
      • information that, in the opinion of C & R, the Customer has committed a serious credit infringement;
      • advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    • The Customer shall have the right to request (by e-mail) from C & R:
      • a copy of the information about the Customer retained by C & R and the right to request that C & R correct any incorrect information; and
      • that C & R does not disclose any personal information about the Customer for the purpose of direct marketing.
    • C & R will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
    • The Customer can make a privacy complaint by contacting C & R via e-mail. C & R 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.

 

  1. Compliance with Laws
    • The Customer and C & R 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.
    • The Customer agrees that the site will comply with any work health and safety laws (WHS) and any other relevant safety standards or legislation
    • All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations.  All of the cabling work will comply with all relevant Australian and New Zealand Wiring standards.
    • If during the course of installation when the Works are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by C & R, then C & R shall notify the Customer immediately.  The power if isolated will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations.  The Customer accepts and agrees that any costs associated with the rectification Works including any Materials and labour shall be to the Customer’s account.
    • Any live Works or Works undertaken near live conductors where it is safe to do so shall be dealt with in accordance with Australian and New Zealand Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and Statutory Acts and Work Place Regulations”.  C & R live works procedures are designed to eliminate risk of injury to C & R employees, damage to the Customer’s installations and unexpected power disconnections.  It may in some cases require disconnection and isolation of the installation to undertake such Works for which additional charges may be applicable.  This shall be invoiced in accordance with clause 2.
    • The Customer warrants that any existing plumbing, gasfitting, wiring and/or associated services in or upon the worksite that is subject to the Materials and/or Works is in compliance with regulations. C & R reserves the right to halt all Works (in accordance with the provisions of clause 2 above) if in their opinion the worksite is unsafe and/or the current positioning of the unit is illegal due to not meeting the required clearances then the Customer will be informed of this and will be given a revised quotation or estimate to install the new appliance in a safe and legal position.  Should the Customer not wish to proceed C & R will charge a standard fee for the time spent on worksite based on C & R’s quotation

 

  1. Building and Construction Industry Security of Payments Act 2009
    • At C & R’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payments Act 2009 may apply.
    • Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2009 of South Australia, except to the extent permitted by the Act where applicable.

 

  1. Unpaid Seller’s Rights
    • Where the Customer has left any item with C & R for repair, modification, exchange or for C & R to perform any other service in relation to the item and C & R has not received or been tendered the whole of any monies owing to it by the Customer, C & R shall have, until all monies owing to C & R are paid:
      • a lien on the item; and
      • the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
    • The lien of C & R shall continue despite the commencement of proceedings, or judgment for any monies owing to C & R having been obtained against the Customer.

 

  1. Service of Notices
    • Any written notice given under this contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this contract;
      • by sending it by registered post to the address of the other party as stated in this contract;
      • if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
      • if sent by email to the other party’s last known email address.
    • Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

 

  1. Trusts
    • If the Customer at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not C & R may have notice of the Trust, the Customer covenants with C & R as follows:
      • the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
      • the Customer has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
      • the Customer will not without consent in writing of C & R (C & R will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
        • the removal, replacement or retirement of the Customer as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.

 

  1. General
    • The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’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.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia, the state in which C & R has its principal place of business, and are subject to the jurisdiction of the Courts in South Australia.
    • Subject to clause 12 C & R 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 C & R of these terms and conditions (alternatively C & R’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
    • C & R may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
    • The Customer cannot licence or assign without the written approval of C & R.
    • C & R may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of C & R’s sub-contractors without the authority of C & R.
    • The Customer agrees that C & R may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for C & R to provide Works to the Customer.
    • 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.
    • Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.


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