1.1 “Company” means Sky Blue Construction Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Sky Blue Construction Pty Ltd.
1.2 “Customer” means the person/s ordering the Works 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 Works or Materials supplied by the Company 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).
1.4 “Price” means the Price payable for the Works as agreed between the Company and the Customer in accordance with clause 4 below.
2.1 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.
2.2 These terms and conditions may only be amended with the Company’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Company.
3. Change in Control
3.1 The Customer shall give the Company 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 the Company as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At the Company’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Company to the Customer in respect of Works performed or Materials supplied; or
(b) the Company’s quoted Price (subject to clause 4.2) which shall be binding upon the Company provided that the Customer shall accept the Company’s quotation in writing within thirty (30) days.
4.2 The Company reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) in the event of increases to the Company in the cost of labour or materials which are beyond the Company’s control.
4.3 At the Company’s sole discretion a deposit may be required.
4.4 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by the Company, which may be:
(a) on completion of the Works; or
(b) by way of instalments in accordance with the Company’s specified instalment 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
(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 the Company.
4.5 Payment may be made by cash, cheque, electronic/on-line banking, credit card (plus a surcharge of up to 2.5% of the Price), or by any other method as agreed to between the Customer and the Company.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Company an amount equal to any GST the Company must pay for any supply by the Company under this or any other agreement 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.
5. Delivery of the Works
5.1 Subject to clause 5.2 it is the Company’s responsibility to ensure that the Works start as soon as it is reasonably possible.
5.2 The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Company claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the Company’s control, including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify the Company that the site is ready.
5.3 The Company 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.
5.4 Any time or date given by the Company to the Customer is an estimate only. The Company shall not be liable for any loss or damage whatsoever due to failure by the Company to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of the Company.
5.5 Delivery of the Materials is taken to occur at the time that the Company (or the Company’s nominated carrier) delivers the Materials to the Customer’s nominated address even if the Customer is not present at the address.
5.6 At the Company’s sole discretion the cost of delivery is included in the Price.
5.7 The Customer must take delivery by receipt or collection of the Materials whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Materials as arranged then the Company shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.1 The Customer shall ensure that the Company has clear and free access to the work site at all times to enable them to undertake the works. The Company 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 the negligence of the Company.
7.1 If the Company retains ownership of the Materials under clause 9 then;
(a) where the Company 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 the Materials are delivered by the Company or the Company’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
(b) where the Company is to both supply and install Materials then the Company 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.
7.2 Notwithstanding the provisions of clause 7.1 if the Customer specifically requests the Company to leave Materials outside the Company’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.
7.3 The Customer acknowledges that Materials supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. The Company will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
7.4 The Company offers no guarantee against the following defects or damage that may occur naturally in the Works over time:
(a) cracking of paint over plaster where the wrong paints are used for coating; or
(b) delaminating of the plaster caused by hydroscopic movement or dampness in the substrate; or
(c) damage caused by contact with chemicals, solvents, oils or any other substances; or
(d) the occurrence of efflorescence and any detrimental effects this has on the appearance of the Works;
(e) pealing or flaking caused by the environment or other external factors.
8. Customer Responsibilities
8.1 It is the intention of the Company and agreed by the Customer that it is the responsibility of the Customer to provide and have erected scaffolding to enable the works to be undertaken (where in the Company’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.
8.2 The Customer agrees to remove any furniture, furnishings or personal goods from the vicinity of the works and agrees that the Company shall not be liable for any damage caused to those items through the Customers failure to comply with this clause.
8.3 The 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.
9.1 The Company and the Customer agree that ownership of the Materials shall not pass until:
(a) the Customer has paid the Company all amounts owing to the Company; and
(b) the Customer has met all of its other obligations to the Company.
9.2 Receipt by the Company 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.
9.3 It is further agreed that:
(a) until ownership of the Materials passes to the Customer in accordance with clause 9.1 that the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Company on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for the Company and must pay to the Company the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
(c) the production of these terms and conditions by the Company shall be sufficient evidence of the Company’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Company to make further enquiries.
(d) 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 the Company and must pay or deliver the proceeds to the Company on demand.
(e) 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 the Company and must sell, dispose of or return the resulting product to the Company as it so directs.
(f) unless the Materials have become fixtures the Customer irrevocably authorises the Company to enter any premises where the Company believes the Materials are kept and recover possession of the Materials.
(g) the Company may recover possession of any Materials in transit whether or not delivery has occurred.
(h) 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 the Company.
(i) the Company may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 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 that have previously been supplied and that will be supplied in the future by the Company to the Customer.
10.3 The Customer undertakes to:
(a) 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 the Company may reasonably require to:
(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 10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Company 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;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Company;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of the Company; and
(e) immediately advise the Company 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.
10.4 The Company 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.
10.5 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.
10.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Customer shall unconditionally ratify any actions taken by the Company under clauses 10.3 to 10.5.
10.9 Subject 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.
11. Security and Charge
11.1 In consideration of the Company 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).
11.2 The Customer indemnifies the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Company’s rights under this clause.
11.3 The Customer irrevocably appoints the Company and each director of the Company 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.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Customer must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify the Company 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 the Company to inspect the Materials or to review the Works provided.
12.2 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).
12.3 The Company acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Company makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. The Company’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Customer is a consumer within the meaning of the CCA, the Company’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If the Company is required to replace any Materials under this clause or the CCA, but is unable to do so, the Company may refund any money the Customer has paid for the Materials.
12.7 If the Company 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 the Company 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.
12.8 If the Customer is not a consumer within the meaning of the CCA, the Company’s liability for any defect or damage in the Materials is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by the Company at the Company’s sole discretion;
(b) limited to any warranty to which the Company is entitled, if the Company did not manufacture the Materials;
(c) otherwise negated absolutely.
12.9 Subject to this clause 12, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 12.1; and
(b) the Company has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Materials are returned in as close a condition to that in which they were delivered as is possible.
12.10 Notwithstanding clauses 12.1 to 12.9 but subject to the CCA, the Company 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 Materials;
(b) the Customer using the Materials for any purpose other than that for which they were designed;
(c) the Customer continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Works by the Customer or any third party without the Company’s prior approval;
(e) the Customer failing to follow any instructions or guidelines provided by the Company;
(f) fair wear and tear, any accident, or act of God.
12.11 The Company may in its absolute discretion accept non-defective Materials for return in which case the Company may require the Customer to pay handling fees of up to twenty-five percent (25%) of the value of the returned Materials plus any freight costs.
12.12 Notwithstanding anything contained in this clause if the Company is required by a law to accept a return then the Company will only accept a return on the conditions imposed by that law.
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Company’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Customer owes the Company any money the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Company’s Contract default fees, and bank dishonour fees).
13.3 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Company may suspend or terminate the supply of Works to the Customer. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.
13.4 Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to make a payment when it falls due;
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14.1 The Company 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 the Company shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to the Company for Works already performed. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 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 the Company as a direct result of the cancellation (including, but not limited to, any loss of profits).
14.3 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.
15. Privacy Act 1988
15.1 The Customer agrees for the Company to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Company.
15.2 The Customer agrees that the Company may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by 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.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
15.3 The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Customer agrees that personal credit information provided may be used and retained by the Company for the following purposes (and for other purposes as shall be agreed between the Customer and Company or required by law from time to time):
(a) the provision of Works; and/or
(b) the marketing of Works by the Company, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Works; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Works.
15.5 The Company may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that the Company is a current credit provider to the Customer;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of the Company, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by the Company has been paid or otherwise discharged.
16. Dispute Resolution
16.1 If 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.
17.1 The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’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.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which the Company has its principal place of business, and are subject to the jurisdiction of the Melbourne Courts in that state.
17.3 Subject to clause 12 the Company 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 the Company of these terms and conditions (alternatively the Company’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
17.4 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 the Company nor to withhold payment of any invoice because part of that invoice is in dispute.
17.5 The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
17.6 The Customer agrees that the Company may amend these terms and conditions at any time. If the Company makes a change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Company to provide any Works to the Customer.
17.7 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.
17.8 The 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.