Sun Construction Service Pty Ltd Terms & Conditions of Trade

  1. Definitions

1.1    "SUN" shall mean Sun Construction Service Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of mean Sun Scaffolding Pty Ltd.

1.2     "Client" shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, authorisation or other form as provided by SUN to the Client.

1.3    "Guarantor" means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.

1.4     "Goods" shall mean Goods supplied by SUN to the Client (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 SUN to the Client.

1.5    "Services" shall mean all Services supplied by SUN to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.6     “Price" shall mean the price payable for the Goods as agreed between SUN and the Client in accordance with clause 4 of this contract.

 

  1. The Commonwealth Trade Practices Act 1974 (TPA) and Fair Trading Acts (FTA)

2.1     Nothing 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.

 

  1. Acceptance

3.1       Any instructions received by SUN from the Client for the supply of Goods and/or the Client's acceptance of Goods supplied by SUN shall constitute acceptance of the terms and conditions contained herein.

3.2     Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.

3.3    Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of SUN.

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

3.5     Goods are supplied by SUN only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client's order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

 

  1. Price And Payment

4.1      At SUN's sole discretion the Price shall be either:

      (a) as indicated on invoices provided by SUN to the Client  in respect of Goods supplied; or

      (b) the SUN's quoted Price (subject to clause 4.2) which shall be binding upon SUN provided that the Client shall accept SUN's Quotation in writing within seven (7) days.

4.2     SUN reserves the right to change the Price in the event of a variation to SUN’s quotation. Any Variation from the plan of scheduled Services or Goods specifications (including, but not limited to, any variation as a result of fluctuations in currency exchange rates) will be charged for on the basis of SUN'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.

4.3     At the SUN’s sole discretion a deposit may be required.

4.4     At the SUN’s sole discretion:

 (a) payment shall be due on delivery of the Goods; or

 (b) payment shall be due before delivery of the Goods; or

 (c) payment for approved Clients shall be made by instalments in accordance with SUN's payment schedule.

4.5    where no payment schedule has been specified, SUN may submit a detailed payment claim at intervals not less than one (1) month for Services performed up to the end of each month. The value of Services so performed shall include the reasonable value of authorised variations and the value of Goods delivered to the site but not yet installed.

4.6     Time for payment for the Goods 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.

4.7     Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (surcharge of up to two percent (2.0%) of the Price), or by direct credit. or by any other method as agreed to between the Client and SUN.

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

 

  1. Delivery Of Goods

5.1      At SUN's sole discretion delivery of the Goods shall take place when:

        (a) the Client takes possession of the Goods at the SUN's address; or

        (b) the Client takes possession of the Goods at the Client's nominated address (in the event that the Goods are delivered by SUN or SUN's nominated carrier).

5.2      At SUN's sole discretion the costs of delivery are:

(a) in addition to the Price; or

(b) for the Client's account.

5.3      The Client shall ensure that:

(a) an authorised person is in attendance at the nominated address at the time of delivery. This person shall be required to sign the deliver docket to confirm the Goods have been received. In the event the delivery site is unattended SUN shall (at their sole discretion) either:

(i) redeliver the Goods (and SUN shall be entitled to charge a reasonable fee for redelivery); or

(ii) the delivery docket shall be signed by SUN (or SUN's carrier) on behalf of the Client, and the Client shall automatically accept full responsibility and risk for the Goods.

(b) if required, the nominated site is cleared and ready for the installation of the Goods prior to delivery, and that the foundations and structure on/or to which the Goods are to be installed have adequate bearing and strength capacity to withstand and support all forces imposed upon them from the Goods.

(c) all electrical wiring within three (3) metres of the installation area are covered prior to commencement of the installation of the Goods.

(d) they obtain (at the expense of the Client) all licenses and approvals that may be required for the installation of the Goods.

(e) site amenities, that comply with WorkCover requirements are provided.

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

5.5    SUN may deliver the Goods by instalments. Each instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.6    The failure of SUN to deliver shall not entitle either party to treat this contract as repudiated.

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

  1. Risk

6.1     If SUN retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.

6.2       Where the Client expressly requests SUN to deliver the Goods to an unattended location then such Goods shall be left at the Client's sole risk and it shall be the Client's responsibility to ensure the Goods are insured adequately or at all.

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

 

  1. Title

7.1     SUN and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid SUN all amounts owing for the particular Goods; and

(b) the Client has met all other obligations due by the Client to SUN in respect of all contracts between SUN and the Client.

7.2      Receipt by SUN 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 SUN's ownership or rights in respect of the Goods shall continue.

7.3     It is further agreed that:

(a) where practicable the Goods shall be kept separate and identifiable until SUN shall have received payment and all other obligations of the Client are met; and

(b) until such time as ownership of the Goods shall pass from SUN to the Client SUN may give notice in writing to the Client to return the Goods or any of them to SUN. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and

(c) SUN shall have the right of stopping the Goods in transit whether or not delivery has been made; and

(d) if the Client fails to return the Goods to SUN then SUN may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and

(e) the Client is only a bailee of the Goods and until such time as SUN has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to SUN for the Goods, on trust for SUN; and

(f) the Client shall not deal with the money of SUN in any way which may be adverse to SUN; and

(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of SUN; and

(h) SUN can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and

(i)  until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that SUN will be the owner of the end products.

 

  1. Defects

8.1    The Client shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify SUN of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford SUN an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which SUN has agreed in writing that the Client is entitled to reject. SUN's liability is limited to either (at SUN's discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods 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 Goods, or repair of the Goods, or replacement of the Goods.

8.2       Goods will not be accepted for return other than in accordance with 8.1 above.

 

  1. Warranty

9.1     For Goods not manufactured by SUN, the warranty shall be the current warranty provided by the manufacturer of the Goods. SUN 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 Goods.

 

  1. Default & Consequences of Default

10.1   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 one half percent (2.5%) per calendar month (and at SUN's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

10.2     In the event that the Client's payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by SUN.

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

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

10.5     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 one hundred and fifty dollars ($150.00) shall be levied for administration fees which sum shall become immediately due and payable.

10.6    Without prejudice to SUN's other remedies at law SUN shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to SUN shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to SUN becomes overdue, or in SUN's opinion the Client will be unable to meet its payments as they fall due; or

(b) the Client 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

(e) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

  1. Personal Properties Securities Act 2009

11.1    The Client hereby acknowledges that these Terms & Conditions of Trade constitute a security agreement which creates a security interest in favour of SUN in all Goods previously supplied by SUN to the Client (if any) and all after acquired Goods supplied by SUN to the Client (or for the Client's account) to secure the payment from time to time and at a time, including future advances. The Client agrees to grant a "Purchase Money Security Interest" to SUN.

11.2     The Client acknowledges and agrees that by assenting to these terms the Client grants a security interest (by virtue of the retention of title clause in these Terms & Conditions of Trade) to SUN and all Goods previously supplied by SUN to the Client (or for the Client's account) and these terms shall apply notwithstanding anything express or implied to the contrary contained in the Client's purchase order.

11.3      The Client undertakes to:

(a) sign any further documents and/or provide any further information (which information the Client warrants to be complete, accurate and up-to-date in all respects) which SUN may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register (PPSR);

(b) not register a financing change statement as defined in section 10 of the PPSA or make a demand to alter the financing statement pursuant to section 178 of the PPSA in respect of the Goods without the prior written consent of SUN;

(c) give SUN not less than 14 days written notice of any proposed change in the Client's name and/or any other changes in the Client's details (including but not limited to changes in the Client's address, facsimile number, email address, trading name or business practice);

(d) pay all costs incurred by SUN in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce the security interest created by these Terms & Conditions of Trade including executing subordination agreements;

(e) be responsible for the full costs incurred by SUN (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA; and

(f) the Client waives any rights it may have under sections 115 of the PPSA upon enforcement.

11.4     Pursuant to section 157 of the PPSA, unless otherwise agreed to in writing by SUN, the Client waives the right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest.

 

11.5      The Client agrees that immediately on request by SUN the Client will procure from any persons considered by SUN to be relevant to its security position such agreement and waivers as SUN may at any time require.

 

  1. Security And Charge

12.1    Despite anything to the contrary contained herein or any other rights which SUN may have howsoever:

(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client 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 SUN or SUN's nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that SUN (or SUN'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 SUN elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify SUN from and against all SUN's costs and disbursements including legal costs on a solicitor and own client basis.

(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint SUN or SUN's nominee as the Client's and/or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.

 

  1. Cancellation

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

13.2      In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by SUN (including, but not limited to, any loss of profits) up to the time of cancellation.

13.3     Cancellation of orders for Goods made to the Client's specifications or non-stocklist items will definitely not be accepted, once production has commenced.

 

  1. Privacy Act 1988

14.1    The Client and/or the Guarantors agree for SUN to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantors in relation to credit provided by SUN.

14.2       The Client and/or the Guarantors agree that SUN may exchange information about the Client and the Guarantors with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:

(a) to assess an application by Client; and/or

(b) to notify other credit providers of a default by the Client; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or

(d) to assess the credit worthiness of Client and/or Guarantors.

14.3     The Client consents to SUN being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

14.4      The Client agrees that personal credit information provided may be used and retained by SUN for the following purposes and for other purposes as shall be agreed between the Client and SUN or required by law from time to time:

(a) provision of Goods; and/or

(b) marketing of Goods by SUN, its agents or distributors in relation to the Goods; and/or

(c) analysing. verifying and/or checking the Client's credit, payment and/or status in relation to provision of Goods; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or

(e) enabling the daily operation of Client's account and/or the collection of amounts outstanding in the Client's account in relation to the Goods.

14.5     SUN may give information about the Client to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Client; and/or

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

 

  1. Building and Construction Industry Security of Payments Act 1999

15.1       At SUN's sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.

15.2      Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.

 

  1. General

16.1      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.

16.2    These 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.

16.3      SUN shall be under no liability whatsoever to the Client for any Indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by SUN of these terms and conditions.

16.4      In the event of any breach of this contract by SUN the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

16.5     The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by SUN nor to withhold payment of any invoice because part of that invoice is in dispute.

16.6     SUN may license or sub-contract all or any part of its rights and obligations without the Client's consent.

16.7     The Client agrees that SUN 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 SUN notifies the Client of such change.

16.8     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.

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