1.1
1.2
1.3 “BP” means Metropolis Plumbing and Gas Pty Ltd trading as Beautiful Plumbing, its successors and assigns or any person acting on behalf of and with the authority of Metropolis Plumbing and Gas Pty Ltd trading as Beautiful Plumbing.
1.4 “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.
1.5 “Works” means all Works or Materials supplied by BP 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).
1.6 “Price” means the Price payable for the Works as agreed between BP and the Customer in accordance with clause 5 below.
1.7 “ACL” means the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (as amended).
2. Acceptance
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 Once accepted by the Customer, BP’s written quotation shall be deemed to interpret correctly the Customer’s instructions, whether written or verbal. Where verbal instructions only are received from the Customer due to a variation subject to clause
5.2 then BP shall not be responsible for errors or omissions due to any oversight or misinterpretation of those instructions.
2.3 These terms and conditions may only be amended with BP’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and BP.
3. Change in Control
3.1 The Customer shall give BP 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 BP as a result of the Customer’s failure to comply with this clause.
4. Electronic Transactions Act 2003
4.1 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 2003 or any other applicable provisions of said Act or any Regulations referred to in said Act.
5. Price and Payment
5.1 At BP’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by BP to the Customer in respect of Works performed or Materials supplied; or
(b) BP’s quoted Price (subject to clause 5.2 ) which shall be binding upon BP provided that the Customer shall accept BP’s quotation in writing within thirty (30) days.
5.2 BP reserves the right to change the Price:
(a) if a variation to the Materials which are to supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, unforeseen circumstances such as poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, discovery of asbestos, prerequisite work by any third party not being completed, change of design, hard rock barriers below the surface, iron reinforcing rods in concrete, , or hidden pipes and wiring in walls, etc) which are only discovered on commencement of the Works; or
(d) retrieving drain cleaning machines that become stuck due to pipe damage or design (including square junctions); or
(e) in the event of increases to BP in the cost of labour or materials which are beyond BP’s control.
5.3 Unless expressly stated otherwise, BP’s quoted Price makes no provision for;
(a) Rock, gravel and/or reef materials; or
(b) removal of excess soil, rubble or concrete, old Hot Water Systems or placing rubble into skip bin; or
(c) water charged ground; or
(d) replacement of damaged drains due to the proximity of tree roots/blockages, filled grounds or like conditions; or
(e) additional concreting not specified in BP’s quotation, no allowance is made for supply or repair of concrete, repair of plaster on walls or filling in wall chases done by BP with cement; or
(f) use of cast iron or other special treatment; or
(g) work required to bring existing plumbing, gasfitting and associated services to meet regulations; or
(h) replacement work (i.e. tap spindles); or
(i) plaster or decoration damage to the opposite wall face on single leaf walls whilst replacing tap sets, mixer taps, or pipework due to the depth it has to be chased; or
(j) damage caused to the tiles or decoration when replacing existing toilet pans and cisterns where they have been incorrectly tiled around; or
(k) removing basins and sinks, or
(l) taps and taps bodies are seized and are required to be removed using larger tools potentially causing damage etc.
5.4 BP will at all times take all due care in carrying out the Works but BP cannot always guarantee the placement of new Materials will cover all signs of previous installations due to the size and model of the new Materials as also BP cannot guarantee that any existing materials removed will be suitable for re-use, it may be dependent upon how
the materials were installed in the first instance.
5.5 BP will at all times attempt to ascertain whether the Customer’s piping size will be sufficient to ensure adequate gas supply and minimum pressure in accordance with the Australian Standards – 5601. In the event that the Customer’s piping is not visible or the gas run location is not known, BP cannot ascertain whether the piping size will be sufficient and will only be aware if the Customer’s piping size is sufficient once the appliance is connected by BP to the Customer’s existing gas main. In the event that
the Customer’s gas main needs to be enlarged to adhere to Australian Standards – 5601, the cost of such enlargement will be borne by the Customer and BP accepts no liability for such costs, including any ancillary costs.
5.6 For the avoidance of doubt, in the event the Customer’s minimum gas pressure cannot be reached for whatsoever reason, any costs to rectify the minimum gas pressure will be borne by the Customer, including but not limited to the upgrading of the gas regulator in the Customer’s meter box or the enlargement of the Customer’s gas main. BP accepts no liability for such costs, including any ancillary costs.
5.7 Any additional Materials and/or Works not expressly provided for in BP’s quotation (including, but not limited to those additional Works listed in clause 5.2 ) shall be charged for on the basis of BP’s quotation and will be shown as a variation on the invoice. Payment for all variations must be made in full at their time of completion.
5.8 At BP’s sole discretion a deposit may be required prior to Works commencing.
5.9 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by BP, which may be:
(a) on delivery of the Materials and/or completion of the Works; or
(b) by way of progress payments in accordance with BP’s specified progress payment schedule or on the date when a stage or section of the job is completed by BP. 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;
(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 one (1) day following the date of any invoice given to the Customer by BP.
5.10 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus any relevant surcharge) or by any other method as agreed to between the Customer and BP.
5.11 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to BP an amount equal to any GST BP must pay for any supply by BP 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.
6. Delivery of the Works and Timing
6.1 Delivery of the Materials (“Delivery”) is taken to occur at the time that BP (or BP’s nominated carrier) delivers the Materials to the Customer’s nominated address even if the Customer is not present at the address.
6.2 At BP’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
6.3 Subject to clause 6.4 it is BP’s responsibility to ensure that the Works start as soon as it is reasonably possible.
6.4 The Works commencement date will be put back and the completion date extended by whatever time is reasonable in the event that BP claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond BP’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 BP that the site is ready.
6.5 At BP’s discretion and depending on the scope of Works, BP may deliver the Works by separate instalments and such separate instalment shall be invoiced by BP and paid by the Customer in accordance with the provisions of these terms and conditions.
6.6 Any time or date given by BP to the Customer is an estimate only. BP shall not be liable for any loss or damage whatsoever due to failure by BP to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of BP.
7. Risk
7.1 If BP retains ownership of the Materials under clause 11 then;(a) where BP 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;
(i) the Customer or the Customer’s nominated carrier takes possession of the Materials at BP’s address; or
(ii) the Materials are delivered by BP or BP’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address) and in the event that any unattended Materials at the delivery address are lost, damaged or destroyed then replacement of such Materials shall be at the Customer’s expense.
(b) where BP is to both supply and install Materials then BP 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 The Customer acknowledges and agrees that the presence of plant/tree root growth and/or blockages may indicate damaged pipes and therefore where BP is requested to merely clear such blockages, BP offers no guarantee against reoccurrence or further damage to the damaged pipes. In the event of a collapse during the pipe clearing process, BP will immediately notify the Customer of the same and will provide the Customer with an estimate for the full repair of the damaged pipe work.
7.3 The Customer acknowledges that BP accepts no responsibility and provides no warranty in the event of a Customer’s sinking pavement due to soil compaction.
7.4 The installation of some appliances can cause water hammer or damage to existing pipe work. The Customer agrees to indemnify BP against any such loss, damage or claim that may arise if the existing pipe work is unable to accommodate the installation of the Materials.
7.5 Any materials removed from the Customer’s premises in connection with the Works that are not required to be reused in order to complete the Works shall become the property of BP unless otherwise agreed by both parties.
7.6 Where BP is required to install the Materials the Customer warrants that the structure of the premises or equipment in or upon which these Materials are to be installed or erected is sound and will sustain the installation and work incidental thereto and BP shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
7.7 In the event that BP discovers any defect in any part of the structure of the premises or the equipment in or upon which the Materials are to be installed or in connection thereto which makes it impractical or inexpedient for BP to continue the Works without repairing or replacing (such as existing pipework showing signs of corrosion) any part of the defective structure or equipment (as determined by BP), then BP shall be entitled to suspend the supply of Materials and/or Works until a variation outlining the charges for the additional works required has been approved by the Customer. In the event that the Customer does not consent to the additional work required by signing the variation, then the Customer may cancel the supply of Materials and/or Works in accordance with clause 17.2 .
7.8 Where the Customer has supplied materials for BP to complete the Works, the Customer acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. BP shall not be responsible for any defects in the works, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
7.9 BP shall not be responsible for the removal of any debris including sand from taps, filters and values where BP has carried out any repairs to a burst pipe. The Customer accepts and agrees that in the event that BP is required to revisit the worksite at the Customer’s request to rectify the worksite then BP reserves the right to charge for time involved in rectifying the worksite and this shall be invoiced in accordance with clause 5.2 .
7.10 The Customer agrees that in the event that BP’s drain/pipe unblocking equipment becomes lodged or stuck whilst cleaning any blockages in the line and/or is damaged on the Customer’s premises, the Customer is responsible for the cost of repaid, replacement and/or or retrieval of BP’s equipment.
- Damages
8.1 The Customer shall ensure that BP has clear and free access to the work site at all times to enable them to undertake the Works. BP shall not be liable for any loss or damage to the site (including, without limitation, damage to ceiling tiles, flooring and wall panelling, pathways, driveways and concreted or paved or grassed areas) which BP may have to break into or disturb in performance of the Works, unless due to the negligence of BP (but shall be limited to the extent of BP’s contribution to any loss or
damage). - Accuracy of Customer’s Information
9.1 The Customer represents and warrants to BP that any plans, specifications and other information provided by the Customer in relation to the Works are true, complete and accurate in material respects and that BP is entitled to reply on such information. The Customer acknowledges and agrees that in the event that any information provided by the Customer is inaccurate, BP accepts no responsibility for any loss, damages, or costs however resulting from such inaccurate plans, specifications or other information.
9.2 The Customer shall notify BP immediately if it becomes aware that any plans, specifications and other information provided to BP are untrue, incomplete or inaccurate.
9.3 In the event the Customer provides information to BP relating to measurements and quantities of the Materials required to complete the Works, it is solely the Customer’s responsibility to verify the accuracy of the measurements and quantities, prior to the Customer or BP placing an order based on these measurements and quantities. BP accepts no responsibility for any loss, damages, or costs however resulting from the
Customer’s failure to comply with this clause.
- Underground Locations
10.1 Prior to BP commencing any work the Customer must advise BP of the precise location of all underground services on the site and clearly mark the same. The underground mains & 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 site.
10.2 Whilst BP will take all care to avoid damage to any underground services the Customer agrees to indemnify BP 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 clause 10.1. - Title
11.1 BP and the Customer agree that ownership of the Materials shall not pass until:
(a) the Customer has paid BP all amounts owing to BP; and
(b) the Customer has met all of its other obligations to BP.
11.2 Receipt by BP of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
11.3 It is further agreed that:
(a) until ownership of the Materials passes to the Customer in accordance with clause 11.1 that the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to BP on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for BP and must pay to BP 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 BP shall be sufficient evidence of BP’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with BP 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 BP and must pay or deliver the proceeds to BP on demand.
(e) the Customer should not convert or process the Materials or intermix them with other Materials but if the Customer does so then the Customer holds the resulting product on trust for the benefit of BP and must sell, dispose of or return the resulting product to BP as BP so directs.
(f) unless the Materials have become fixtures the Customer irrevocably authorises BP to enter any premises where BP believes the Materials are kept and recover possession of the Materials.
(g) BP 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 BP.
(i) BP may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.
- Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 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 BP to the Customer.
12.3 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 BP 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 12.3(a)(i) or 12.3(a)(ii) ;
(b) indemnify, and upon demand reimburse, BP 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 BP;
(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 BP; and
(e) immediately advise BP 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.
12.4 BP and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 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.
12.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by BP, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Customer shall unconditionally ratify any actions taken by BP under clauses 12.3 to 12.5 .
12.9 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 the PPSA. - Security and Charge
13.1 The Customer hereby agrees to mortgage and/or charge all of the Customer’s joint and/or several interest in the Customer’s land where the Works are to take place to BP or BP’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer acknowledges and agrees that BP or his nominees shall be entitled to lodge where appropriate an absolute caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable under this agreement have been met.
13.2 Clause 13.1 shall be applicable where the charge is created to secure the payment to BP by the Customer of monies due under this agreement at any time. - Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Customer must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify BP 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 BP to inspect the Materials or to review the Works provided.
14.2 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).
14.3 BP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, BP makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. BP’s liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Customer is a consumer within the meaning of the CCA, BP’s liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If BP is required to replace any Materials under this clause or the CCA, but is unable to do so, BP may refund any money the Customer has paid for the Materials.
14.7 If BP 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 BP 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.
14.8 If the Customer is not a consumer within the meaning of the CCA, BP’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 BP at BP’s sole discretion;
(b) limited to any warranty to which BP is entitled, if BP did not manufacture the Materials; or
(c) otherwise negated absolutely.
14.9 Subject to this clause 14 , returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 14.1 ; and
(b) BP 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.
14.10 Notwithstanding clauses 14.1 to 14.9 but subject to the CCA, BP 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 BP’s prior approval;
(e) the Customer failing to follow any instructions or guidelines provided by BP; or
(f) fair wear and tear, any accident, or act of God.
14.11 Notwithstanding anything contained in this clause if BP is required by a law to accept a return then BP will only accept a return on the conditions imposed by that law.
- Australian Consumer Law Warranty
15.1 If, under the Works:
(a) the goods or services supplied are of a kind ordinarily acquired for
personal, domestic or household use or consumption; or
(b) the amount paid or payable for the goods or services supplied
does not exceed $40,000 or any greater amount prescribed under the ACL, then the provisions of this clause operate and bind the Customer and BP, but otherwise this clause has no effect whatsoever.
15.2 The following provision applies: “Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
to cancel your service contract with us; and
to a refund for the unused portion, or to compensation for its
reduced value.
15.3 You are also entitled to choose a refund or replacement for a major failure with goods. If a failure with the goods or service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion, You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.”
15.4 The Supplier will not accept any claim in respect of goods or services unless such claim is received in writing within seven (7) days of delivery. If a claim is not received by BP within that time, then the goods and services will be presumed to have been received by the Customer in an acceptable condition and agreed quantity and BP shall be discharged from any further obligations, responsibility, liability or claims in respect of the goods and services.
15.5 In order to make a claim under the warranty within the specified period of warranty, the Customer must at its own cost make a claim in writing to BP at the address given above specifying the issue complained against.
15.6 Upon receipt of the claim from the Customer, BP will investigate the claim, and if the claim satisfies the terms of warranty then BP will fulfil its obligations under the warranty a stated above.
15.7 Except as set out in this clause, BP will not be responsible for any loss suffered or expenses incurred by the Customer when the Customer makes a claim under warranty.
- Default and Consequences of Default
16.1 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 BP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Customer owes BP any money the Customer shall indemnify BP from and against all costs and disbursements incurred by BP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, BP’s collection agency costs being from EC Credit Control, contract default fee, and bank dishonour fees).
16.3 If a Customer has made payment to BP by credit card, 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 BP under this clause 15 where it can be reasonably proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement.
16.4 Without prejudice to any other remedies BP may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions BP may suspend or terminate the supply of Works to the Customer. BP will not be liable to the Customer for any loss or damage the Customer suffers because BP has exercised its rights under this clause.
16.5 Without prejudice to BP’s other remedies at law BP shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to BP shall, whether or not due for payment, become immediately payable if:
(a) any money payable to BP becomes overdue, or in BP’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.
- Default and Consequences of Default
16.1 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 BP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Customer owes BP any money the Customer shall indemnify BP from and against all costs and disbursements incurred by BP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, BP’s collection agency costs being from EC Credit Control, contract default fee, and bank dishonour fees).
16.3 If a Customer has made payment to BP by credit card, 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 BP under this clause 15 where it can be reasonably proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement.
16.4 Without prejudice to any other remedies BP may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions BP may suspend or terminate the supply of Works to the Customer. BP will not be liable to the Customer for any loss or damage the Customer suffers because BP has exercised its rights under this clause.
16.5 Without prejudice to BP’s other remedies at law BP shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to BP shall, whether or not due for payment, become immediately payable if:
(a) any money payable to BP becomes overdue, or in BP’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. - Compliance with Laws
17.1 The Customer and BP 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.
17.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.
17.3 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.
17.4 Prior to commencement of any Works BP may carry a routine soundness test of the site to ensure there are not any gas leaks in the existing pipework. In the event of such a discovery BP where necessary will have the gas supply capped-off until the fault is found and repaired at the Customer’s expense.
17.5 The Customer acknowledges that in instances where the gas supply is turned off at the meter or bottles by BP in order to carry out the soundness test that parts within a gas appliance may fail due to not being turned off and serviced for a long period of time including, thermocouples, blocked pilot tubes, and SIT valves on pilot assemblies. Any costs associated with such an event shall be borne by the Customer.
17.6 The Customer warrants that any existing plumbing, gasfitting and/or associated services in or upon the worksite that is subject to the Materials and/or Works is in compliance with regulations. BP reserves the right to halt all Works 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 BP will charge a standard fee for the time spent on worksite based on BP’s quotation. - Cancellation
18.1 BP 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 either verbal or written notice to the Customer. On giving such notice BP shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to BP pursuant to these terms and conditions. BP shall not be liable to the
Customer for any loss or damage whatsoever arising from such cancellation and the Customer is not entitled to any other claim, including any claim for loss of profits, costs, losses, damages or expenses suffered or incurred.
18.2 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 BP as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.3 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. - Intellectual Property
19.1 All plans, sketches, pamphlets, folders, catalogues, price lists, samples and technical information in relation to the Works, will remain the intellectual property of BP at all times, and shall only be used by the Customer at BP’s discretion.
19.2 Any documents mentioned in 18.1(a) provided by BP to the Customer shall be returned to BP on demand. - Dispute Resolution
20.1 Any dispute arising in connection with this contract which cannot be settled by negotiation between the Customer and BP within seven (7) days of written notice of the dispute from one party to the other shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators Australia. During such arbitration, both the Customer and BP
may be legally represented.
20.2 Prior to referring a matter to arbitration the Customer and the Company shall in good faith explore the prospect of mediation.
20.3 Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court. - Privacy Act 1988
21.1 The Customer agrees that BP may obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by BP.
21.2 The Customer agrees that BP 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.
21.3 The Customer consents to BP being given a consumer credit report to collect overdue payment on commercial credit.
21.4 The Customer agrees that personal credit information provided may be used and retained by BP for the following purposes (and for other purposes as shall be agreed between the Customer and BP or required by law from time to time):
(a) the provision of Works; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Works; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in the Customer’s account in relation to the Works.
21.5 BP 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.
21.6 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 BP is a current credit provider to the Customer;
(d) advice of any credit defaults, 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 BP, 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 the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
(h) that credit provided to the Customer by BP has been paid or otherwise discharged.
21.7 The Customer shall have the right to request from BP:
(a) a copy of any information about the Customer retained by BP and the right to request that BP correct any incorrect information; and
(b) that BP does not disclose any personal information about the Customer for the purpose of direct marketing.
21.8 In the event that BP reasonably suspects an eligible data breach as defined in the Privacy Act 1988 (“EDB”) may have occurred, which may affect any personal information about the Customer, BP will carry out an assessment to determine whether there are reasonable grounds to believe that an EDB has occurred within thirty (30) days.
21.9 As soon as possible after BP becomes aware of or has reasonable grounds to believe that an EDB has occurred, BP will comply with Part IIIC of the Privacy Act 1988 by:
(a) preparing a statement which describes the EDB;
(b) notifying the Customer about the contents of the statement referred to in clause 20.9(a) as soon as practicable; and
(c) providing a copy of the statement referred to in clause 20.9(a) to the Information Commissioner.
21.10 BP will destroy personal information upon the Customer’s request or if it is no longer required unless it is required in order to fulfil the obligations of these terms and conditions or is required to be maintained and/or stored in accordance with the law.
21.11 The Customer can make a privacy complaint by contacting BP via e-mail. BP 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.
21.12 The Privacy Policy of Beautiful Plumbing is available on our website or by request.
- Construction Contracts Act 2004
22.1 At BP’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Works then the provisions of the Construction Contracts Act 2004 may apply.
22.2 Nothing in these terms and conditions is intended to have the effect of contracting out of any provisions of the Construction Contracts Act 2004 of Western Australia, except to the extent permitted by the Act where applicable. - General
23.1 The failure by BP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect BP’s right to subsequently enforce that provision.
23.2 Any notice, demand, consent or other communication given or made under these terms and conditions must be in writing and signed by a person duly authorised by the sender (or in the case of email, set out the full name and title of the person duly authorised by the sender), must be delivered to the intended recipient by hand or by prepaid post or by email to the address or email address last notified by the intended
recipient to the sender.
23.3 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.
23.4 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which BP has its principal place of business, and are subject to the jurisdiction of the Perth Court in Western Australia.
23.5 Subject to clause 14 BP 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 BP of these terms and conditions. In any event, BP’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works.
23.6 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 BP nor to withhold payment of any invoice because part of that invoice is in dispute.
23.7 BP may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
23.8 The Customer agrees that BP may amend these terms and conditions at any time. If BP makes a change to these terms and conditions, then that change will take effect from the date on which BP notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for BP to provide any Works to the Customer.
23.9 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.
23.10 The Customer warrants that it has the power to enter into these terms and conditions and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that these terms and conditions creates binding and valid legal obligations on it.
23.11 Use of words such as “for example” and/or “including” does not preclude other options.
