1. Definitions

1.1 “TSP” means Total Seal Plumbing & Property Maintenance., its successors and assigns or any person acting on behalf of and with the authority of Total Seal Plumbing & Property Maintenance .. 1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting TSP to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and: (a) if there is more than one Client, is a reference to each Client jointly and severally; and (b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and (c) includes the Client’s executors, administrators, successors and permitted assigns. 1.3 “Goods” means all Goods or Services supplied by TSP to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other). 1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between TSP and the Client in accordance with clause 5 below. 1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth). 

 

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods. 2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and TSP. 2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act. Or accepting any quotes via web based links. 

 

3. Errors and Omissions

3.1 The Client acknowledges and accepts that TSP shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s): (a) resulting from an inadvertent mistake made by TSP in the formation and/or administration of this contract; and/or (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by TSP in respect of the Services. 3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of TSP; the Client shall not be entitled to treat this contract as repudiated nor render it invalid. 

 

4. Change in Control

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

 

5. Price and Payment

5.1 At TSP’ sole discretion, the Price shall be either: (a) as indicated on any invoice provided by TSP’ to the Client; or (b) the Price as at the date of delivery of the Goods according to TSP’ current price list; or (c) TSP’ quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. 5.2 TSP’ reserves the right to change the Price: (a) if a variation to the Goods which are to be supplied is requested; or (b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or (c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, obscured building defects, unsound pre-existing construction, safety considerations, prerequisite work by any third party not being completed, 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 Services; or (d) in the event of increases to TSP’ in the cost of labour or Goods which are beyond TSP’ control. 5.3 Variations will be charged for on the basis of TSP’ quotation, and will be detailed in writing, and shown as variations on TSP’ invoice. The Client shall be required to respond to any variation submitted by TSP’ within ten (10) working days. Failure to do so will entitle TSP’ to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion. 5.4 At TSP’ sole discretion, a 10% deposit and the remaining balance on completion of the Services may be required. 5.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by TSP’, which may be: (a) on delivery of the Goods; (b) before delivery of the Goods; (c) by way of instalments/progress payments in accordance with TSP’ payment schedule; (d) four (4) days following the end of the month in which a statement is posted to the Client’s address or address for notices; (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by TSP’. 5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and TSP’. 5.7 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 TSP’ nor to withhold payment of any invoice because part of that invoice is in dispute. 5.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to TSP’ an amount equal to any GST TSP’ must pay for any supply by TSP’ under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client 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. Provision of the Services

6.1 Subject to clause 6.2 it is the TSP's responsibility to ensure that the Services start as soon as it is reasonably possible. 6.2 The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that TSP’ claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond TSP’ control, including but not limited to any failure by the Client to: (a) make a selection; or (b) have the site ready for the Services; or (c) notify TSP’ that the site is ready. 6.3 Any time specified by TSP’ for delivery of the Services is an estimate only and TSP’ will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that TSP’ is unable to supply the Services as agreed solely due to any action or inaction of the Client, then TSP shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date, and/or for storage of the Goods. 

 

7 Access

7.1 The Client shall ensure that TSP has clear and free access to the work site at all times to enable them to undertake the Services. TSP 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 TSP. 

 

8. Service Locations

8.1 Prior to TSP commencing the Services the Client must advise TSP of the precise location of all services on the site and clearly mark the same. The mains and services the Client 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. 8.2 Whilst TSP will take all care to avoid damage to any services the Client agrees to indemnify TSP 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 

 

9.1.  Client Responsibilities

9.1 The Client acknowledges that: (a) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in TSP’ or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by TSP; and (b) while TSP’ may have provided information or figures to the Client regarding the performance of the Goods, the Client acknowledges that TSP’ has given these in good faith, and are estimates based on Clean Energy Council (CEC) and/or industry prescribed estimates; and (c) TSP’ is only responsible for parts that are replaced by TSP’ and that in the event that other parts/goods, subsequently fail, the Client agrees to indemnify TSP’ against any loss or damage to the Goods.; and (d) in the event that TSP is requested by the Client to perform a temporary repair, the Client accepts that the repair is temporary and TSP’ offers no guarantee against reoccurrence, effectiveness or further damage. 9.2 The Client acknowledges and agrees that where TSP has performed temporary repairs that: (a) TSP’ offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and (b) TSP’ will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair. 9.3 The Client acknowledges that Goods supplied may: (a) fade or change colour over time; and (b) expand, contract or distort as a result of exposure to heat, cold, weather; and (c) mark or stain if exposed to certain substances; and (d) be damaged or disfigured by impact or scratching. 9.4 The Client agrees to: (a) remove any furniture, furnishings or personal goods from the vicinity of the Services and agrees that TSP’ shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.; and (b) indemnify TSP’ from any damage caused by any other tradesman during and after the completion of the Services. If the Client instructions TSP’ to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at TSP’ normal hourly rate per clause 5.2.

 

10. Title

10.1 TSP’ and the Client agree that ownership of the Goods shall not pass until: (a) the Client has paid TSP all amounts owing to TSP; and (b) the Client has met all of its other obligations to TSP. 10.2 Receipt by TSP’ of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honored, cleared or recognized. 10.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 10.1: (a) the Client is only a bailee of the Goods and must return the Goods to TSP’ on request. (b) the Client holds the benefit of the Client’s insurance of the Goods on trust for TSP’ and must pay to TSP’ the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. (c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for TSP’ and must pay or deliver the proceeds to TSP’ on demand. (d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of TSP and must sell, dispose of or return the resulting product to TSP as it so directs. (e) the Client irrevocably authorises TSP to enter any premises where TSP believes the Goods are kept and recover possession of the Goods. (f) TSP may recover possession of any Goods in transit whether or not delivery has occurred. (g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of TSP. (h) TSP may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client. 

 

11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

11.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify TSP in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Client must allow TSP to inspect the Goods. 11.2 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). 11.3 TSP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees. 11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, TSP makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. TSP’ liability in respect of these warranties is limited to the fullest extent permitted by law. 11.5 If the Client is a consumer within the meaning of the CCA, TSP’ liability is limited to the extent permitted by section 64A of Schedule 2. 11.6 If TSP is required to replace the Goods under this clause or the CCA, but is unable to do so, TSP may refund any money the Client has paid for the Goods. 11.7 If the Client is not a consumer within the meaning of the CCA, TSP’ liability for any defect or damage in the Goods is: (a) limited to the value of any express warranty or warranty card provided to the Client by TSP at TSP’ sole discretion; (b) limited to any warranty to which TSP is entitled, if TSP did not manufacture the Goods; (c) otherwise negated absolutely. 11.8 Subject to this clause 11, returns will only be accepted provided that: (a) the Client has complied with the provisions of clause 11.1; and (b) TSP has agreed that the Goods are defective; and (c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and (d) the Goods are returned in as close a condition to that in which they were delivered as is possible. 11.9 TSP 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 Client failing to properly maintain or store any Goods; (b) the Client using the Goods for any purpose other than that for which they were designed; (c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) the Client failing to follow any instructions or guidelines provided by TSP; (e) fair wear and tear, any accident, or act of God. 11.10 TSP may in its absolute discretion accept non-defective Goods for return in which case TSP may require the Client to pay handling fees of up to thirty percent (30%) of the value of the returned Goods plus any freight costs. 11.11 Notwithstanding anything contained in this clause if TSP is required by a law to accept a return then TSP will only accept a return on the conditions imposed by that law. 

 

12. Default and Consequences of Default

12.1 Payment is due as outlined in the invoice. If payment is not received by the due date, the Client agrees to cooperate with TSP in resolving the matter amicably. No interest will be charged on overdue payments. Any legal costs or administration fees incurred in recovering overdue payments may be charged to the Client.

 

13. Cancellation

13.1 Without prejudice to any other remedies TSP may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions TSP may suspend or terminate the supply of Goods to the Client. TSP will not be liable to the Client for any loss or damage the Client suffers because TSP has exercised its rights under this clause. 13.2 TSP 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 TSP shall repay to the Client any money paid by the Client for the Goods. TSP shall not be liable for any loss or damage whatsoever arising from such cancellation. 13.3 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by TSP as a direct result of the cancellation (including, but not limited to, any loss of profits). 

 

14. Building and Construction Industry Security of Payments Act 1999 (if applicable)

14.1 At TSP’ 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. 14.2 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. 

 

15. Building and Construction Industry (Security of Payment) Act 2009 (if applicable)

15.1 At TSP’ 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 Payment) Act 2009 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 Payment) Act 2009 of the Australian Capital Territory, except to the extent permitted by the Act where applicable. 

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16. Service of Notices

16.1 Any written notice given under this contract shall be deemed to have been given and received: (a) by handing the notice to the other party, in person; (b) by leaving it at the address of the other party as stated in this contract; (c) by sending it by registered post to the address of the other party as stated in this contract; (d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission; (e) if sent by email to the other party’s last known email address. 16.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered. 

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17. General

17.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. 17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of either New South Wales or Australian Capital Territory in which state the Goods and/or Services were provided by TSP to the Client however, in the event of a dispute that deems necessary for the matter to be referred to a Magistrates or higher Court then jurisdiction will be subject to the Australian Capital Territory Courts in the state of Australian Capital Territory in which TSP has its principal place of business 17.3 TSP 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 TSP of these terms and conditions (alternatively TSP’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods). 17.4 TSP may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent. 17.5 The Client cannot licence or assign without the written approval of TSP. 17.6 TSP may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of TSP’ sub-contractors without the authority of TSP. 17.7 The Client agrees that TSP may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for TSP to provide Goods to the Client. 17.8 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. 17.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorizations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them. 

 

18. Goods

18.1 All goods shall remain the property of TSP until such time payment is received in full. TSP reserves the right to repossess all materials and goods if payment is not received, TSP will not be accountable for any damages incurred in repossessing these goods, these goods (materials) may be water, sewer and gas pipes/fittings that may be concealed or buried in the ground, among other materials purchased for the project/job.

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