A.J. Grant Building Pty Ltd – Terms & Conditions of Trade Please note that a larger print version of these terms and conditions is available from the Builder on request.

© Copyright – EC Credit Control Pty Ltd - 2010

1. Definitions

1.1“Builder” shall mean A.J. Grant Building Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of A.J. Grant Building Pty Ltd.

1.2“Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Builder to the Customer.

1.3“Guarantor” means that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.

1.4“Materials” shall mean all Materials supplied by the Builder to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Builder to the Customer.

1.5“Services” shall mean all Services supplied by the Builder to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Materials as defined above).

1.6“Price” shall mean the Price payable for the Materials as agreed between the Builder and the Customer in accordance with clause 4 of this contract.

2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)

2.1Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

3. Acceptance

3.1Any instructions received by the Builder from the Customer for the supply of Materials and/or the Customer’s acceptance of Materials supplied by the Builder shall constitute acceptance of the terms and conditions contained herein.

3.2Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Builder.

3.3The Customer shall give the Builder not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Builder as a result of the Customer’s failure to comply with this clause.

3.4Materials are supplied by the Builder only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

3.5Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

4. Price and Payment

4.1At the Builder’s sole discretion the Price shall be either: (a) as indicated on invoices provided by the Builder to the Customer in respect of Materials supplied; or (b) the Builder’s quoted Price (subject to clause 4.2) which shall be binding upon the Builder provided that the Customer shall accept the Builder’s quotation in writing within fourteen (14) days.

4.2The Builder reserves the right to change the Price in the event of a variation to the Builder’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties or as a result of increases to the Builder in the cost of materials and labour) will be charged for on the basis of the Builder’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.

4.3At the Builder’s sole discretion a non refundable deposit may be required.

4.4At the Builder’s sole discretion: (a) payment shall be due on delivery of the Materials; or (b) payment shall be due before delivery of the Materials; or (c) payment for approved Customers shall be made by instalments in accordance with the Builder’s payment schedule.

4.5Time for payment for the Materials shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.

4.6Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two percent (2%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and the Builder.

4.7GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

5. Delivery of Materials

5.1At the Builder’s sole discretion delivery of the Materials shall take place when: (a) the Customer takes possession of the Materials at the Builder’s address; or (b) the Customer takes possession of the Materials at the Customer’s nominated address (in the event that the Materials are delivered by the Builder or the Builder’s nominated carrier); or (c) the Customer’s nominated carrier takes possession of the Materials in which event the carrier shall be deemed to be the Customer’s agent.

5.2At the Builder’s sole discretion the costs of delivery are: (a) in addition to the Price; and (b) for the Customer’s account.

5.3The Customer shall make all arrangements necessary to take delivery 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 Builder shall be entitled to charge a reasonable fee for redelivery.

5.4Delivery of the Materials to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.

5.5The failure of the Builder to deliver shall not entitle either party to treat this contract as repudiated.

5.6The Builder shall not be liable for any loss or damage whatsoever due to failure by the Builder to deliver the Materials (or any of them) promptly or at all, where due to circumstances beyond the control of the Builder.

6. Risk

6.1If the Builder retains ownership of the Materials nonetheless, all risk for the Materials passes to the Customer on delivery.

6.2If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Builder is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by the Builder is sufficient evidence of the Builder’s rights to receive the insurance proceeds without the need for any person dealing with the Builder to make further enquiries.

6.3Where the Customer expressly requests the Builder to leave Materials outside the Builder’s premises for collection or to deliver the Materials to an unattended location then such Materials shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all.

6.4Where the Builder 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 the Builder shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.

6.5The Customer acknowledges that Materials supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. The Builder 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. Damages

7.1The Customer shall ensure that the Builder has clear and free access to the work site at all times to enable them to undertake the works. The Builder 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 Builder.

8. Underground Mains & Services

8.1Prior to the Builder commencing any work the Customer must advise the Builder 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.

8.2Whilst the Builder will take all care to avoid damage to any underground services the Customer agrees to indemnify the Builder 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 8.1.

9. Surplus Materials

9.1Unless otherwise stated elsewhere in this contract: (a) demolished Materials remain the Customer’s property; and (b) Materials which the Builder brings to the site which are surplus remain the property of the Builder.

10.Title

10.1 The Builder and the Customer agree that ownership of the Materials shall not pass until: (a) the Customer has paid the Builder all amounts owing for the particular Materials; and (b) the Customer has met all other obligations due by the Customer to the Builder in respect of all contracts between the Builder and the Customer.

10.2 Receipt by the Builder 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 and until then the Builder’s ownership or rights in respect of the Materials shall continue.

10.3 It is further agreed that: (a) where practicable the Materials shall be kept separate and identifiable until the Builder shall have received payment and all other obligations of the Customer are met; and (b) until such time as ownership of the Materials shall pass from the Builder to the Customer the Builder may give notice in writing to the Customer to return the Materials or any of them to the Builder. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Materials shall cease; and (c) the Builder shall have the right of stopping the Materials in transit whether or not delivery has been made; and (d) if the Customer fails to return the Materials to the Builder then the Builder or the Builder’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Materials are situated and take possession of the Materials; and (e) the Customer is only a bailee of the Materials and until such time as the Builder has received payment in full for the Materials then the Customer shall hold any proceeds from the sale or disposal of the Materials, up to and including the amount the Customer owes to the Builder for the Materials, on trust for the Builder; and (f) the Customer shall not deal with the money of the Builder in any way which may be adverse to the Builder; and (g) the Customer shall not charge the Materials in any way nor grant nor otherwise give any interest in the Materials while they remain the property of the Builder; and (h) the Builder can issue proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials may not have passed to the Customer; and (i) until such time that ownership in the Materials passes to the Customer, if the Materials are converted into other products, the parties agree that the Builder will be the owner of the end products.

11.Personal Property Securities Act 2009 (“PPSA”)

11.1 In this clause: (a) financing statement has the meaning given to it by the PPSA; (b) financing change statement has the meaning given to it by the PPSA; (c) security agreement means the security agreement under the PPSA created between the Customer and the Builder by these terms and conditions; and (d) security interest has the meaning given to it by the PPSA.

11.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions: (a) constitute a security agreement for the purposes of the PPSA; and (b) create a security interest in: (i) all Materials previously supplied by the Builder to the Customer (if any); (ii) all Materials that will be supplied in the future by the Builder to the Customer.

11.3 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 Builder 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

11.3(a)(i) or 11.3(a)(ii); (b) indemnify, and upon demand reimburse, the Builder 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 Builder; (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 Builder; and (e) immediately advise the Builder 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.

11.4 The Builder 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.

11.5 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.

11.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

11.7 Unless otherwise agreed to in writing by the Builder, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.

11.8 The Customer shall unconditionally ratify any actions taken by the Builder under clauses 11.3 to 11.5.

12.Defects

12.1 The Customer shall inspect the Materials on delivery and shall within forty eight (48) hours of delivery (time being of the essence) notify the Builder of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Builder an opportunity to inspect the Materials within a reasonable time following delivery if the Customer believes the Materials are defective in any way. If the Customer shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which the Builder has agreed in writing that the Customer is entitled to reject, the Builder’s liability is limited to either (at the Builder’s discretion) replacing the Materials or repairing the Materials except where the Customer has acquired Materials as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Materials, or repair of the Materials, or replacement of the Materials.

12.2 Materials will not be accepted for return other than in accordance with 12.1 above.

13.Warranty

13.1 Subject to the conditions of warranty set out in clause 13.2 the Builder warrants that if any defect in any workmanship of the Builder becomes apparent and is reported to the Builder within six (6) months of the date of delivery (time being of the essence) then the Builder will either (at the Builder’s sole discretion) replace or remedy the workmanship.

13.2 The conditions applicable to the warranty given by clause 13.1 are: (a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through: (i) failure on the part of the Customer to properly maintain any Materials; or (ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Builder; or (iii)any use of any Materials otherwise than for any application specified on a quote or order form; or (iv) the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or (v) fair wear and tear, any accident or act of God. (b) the warranty shall cease and the Builder shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Builder’s consent. (c) in respect of all claims the Builder shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.

13.3 For Materials not manufactured by the Builder, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Builder shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.

14.Intellectual Property

14.1 Where the Builder has designed, drawn or written Materials for the Customer, then the copyright in those designs and drawings and documents shall remain vested in the Builder, and shall only be used by the Customer at the Builder’s discretion.

14.2 The Customer warrants that all designs or instructions to the Builder will not cause the Builder to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Builder against any action taken by a third party against the Builder in respect of any such infringement.

14.3 The Customer agrees that the Builder may use any documents, designs, drawings or Materials created by the Builder for the purposes of advertising, marketing, or entry into any competition.

15.Default and Consequences of Default

15.1 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 Builder’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

15.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by the Builder.

15.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Builder from and against all costs and disbursements incurred by the Builder in pursuing the debt including legal costs on a solicitor and own client basis and the Builder’s collection agency costs.

15.4 Without prejudice to any other remedies the Builder may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Builder may suspend or terminate the supply of Materials to the Customer and any of its other obligations under the terms and conditions. The Builder will not be liable to the Customer for any loss or damage the Customer suffers because the Builder has exercised its rights under this clause.

15.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.

15.6 Without prejudice to the Builder’s other remedies at law the Builder shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Builder shall, whether or not due for payment, become immediately payable in the event that: (a) any money payable to the Builder becomes overdue, or in the Builder’s opinion the Customer will be unable to meet its payments as they fall due; or (b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

16.Security and Charge

16.1 Despite anything to the contrary contained herein or any other rights which the Builder may have howsoever: (a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Builder or the Builder’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. A.J. Grant Building Pty Ltd – Terms & Conditions of Trade Please note that a larger print version of these terms and conditions is available from the Builder on request. © Copyright – EC Credit Control Pty Ltd - 2010 The Customer and/or the Guarantor acknowledge and agree that the Builder (or the Builder’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. (b) should the Builder elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Builder from and against all the Builder’s costs and disbursements including legal costs on a solicitor and own client basis. (c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Builder or the Builder’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 16.1.

17.Compliance with Laws

17.1 The Customer and the Builder 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.

18.Cancellation

18.1 The Builder may cancel any contract to which these terms and conditions apply or cancel delivery of Materials at any time before the Materials are delivered by giving written notice to the Customer. On giving such notice the Builder shall repay to the Customer any sums paid in respect of the Price. The Builder shall not be liable for any loss or damage whatsoever arising from such cancellation.

18.2 In the event that the Customer cancels delivery of Materials the Customer shall be liable for any loss incurred by the Builder (including, but not limited to, any loss of profits) up to the time of cancellation.

18.3 Cancellation of orders for Materials made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.

19.Privacy Act 1988

19.1 The Customer and/or the Guarantor/s (herein referred to as the Customer) agree for the Builder to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Builder.

19.2 The Customer agrees that the Builder 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.

19.3 The Customer consents to the Builder being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

19.4 The Customer agrees that personal credit information provided may be used and retained by the Builder for the following purposes (and for other purposes as shall be agreed between the Customer and Builder or required by law from time to time): (a) the provision of Materials; and/or (b) the marketing of Materials by the Builder, 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 Materials; 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 Materials.

19.5 The Builder 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.

19.6 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 Builder 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 Builder, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers 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 Builder has been paid or otherwise discharged.

20.General

20.1 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.

20.2 T hese terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.

20.3 The Builder 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 Builder of these terms and conditions.

20.4 In the event of any breach of this contract by the Builder the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Materials.

20.5 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 Builder nor to withhold payment of any invoice because part of that invoice is in dispute.

20.6 The Builder may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

20.7 The Customer agrees that the Builder may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Builder notifies the Customer of such change.

20.8 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.

20.9 The failure by the Builder to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Builder’s right to subsequently enforce that provision.

 

 

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