STANDARD CONDITIONS FOR SUPPLY BY MJ’S PLASTERING
1. GENERAL
1.1 All goods and any services supplied by Matthew Vella trading as MJ’s Plastering ABN 51 202 761 397 (“Supplier”) are supplied subject to the following conditions.
1.2 The conditions will prevail over any stipulation, term or condition in the customer’s enquiry, specification, drawing, order or other document provided by the customer unless otherwise agreed by the Supplier in writing.
1.3 The provisions of a quotation given by the Supplier will prevail over any inconsistent provision of these conditions only in respect of the specific work included in the quotation.
2. TERMS OF PAYMENT
2.1 Payment for all goods or services will be made as follows:
a) any progress payment on the customer’s receipt of Supplier’s invoice; and
b) the final payment within 7 days of the customer’s receipt of the Supplier’s invoice.
2.2 If any of the customer’s accounts with the Supplier remain unpaid after the due date:
a) The Supplier may, without prejudice to any other rights it may have, refuse to supply or suspend the supply of any further goods or services to the customer and
b) The customer must pay the Supplier interest on the unpaid amount at the rate of 8% per annum calculated on daily rests from the due date of payment to the actual date of payment; and
c) The customer will be liable to pay the Supplier, and indemnifies the Supplier against, all costs and expenses incurred by the Supplier arising from the late payment on a full indemnity basis.
3. QUOTATIONS
3.1 Unless previously withdrawn, a quotation will be open for acceptance by the customer within the period stated on the quotation, when no period is stated, within 90 days after its date.
3.2 the quoted price is subject to the customer taking delivery of the whole amount of the goods or services to be supplied under the quotation on the agreed dates for delivery of the supply. Any increased cost incurred by the Supplier because the customer is not ready to accept delivery on the due date or requires delivery on an earlier date shall be paid by the customer.
3.3 The Supplier’s quotation is based on it having free and unrestricted access to all necessary work areas and the customer will be liable to pay any increased cost arising from any obstruction or limited access.
4. DESCRIPTION OF GOODS, ORDERS AND VARIATIONS
4.1 Goods and services are supplied in accordance with normal industry standards and the Supplier will not be liable to the customer in respect of goods or services which comply with these standards. All plaster work will be prepared to a ‘Level 4 Finish’ as defined in the Australian/New Zealand Standard AS/NZ/52589.1 ‘Gypsum Linings – Application and Finishing’.
4.2 The customer agrees that it has checked all details of the goods or services as shown on the quotation and/or order and unless otherwise agreed, the customer will be responsible for the accuracy of all specifications including but not limited to measurements.
4.3 All orders and any variation to orders must be in writing and where verbal instructions are received from the customer the Supplier will not be responsible for any error or omission due to the Supplier’s misinterpretation of these instructions.
4.4 The Supplier may charge the customer for any work required because of a customer’s variation or correction of an order.
4.5 If a customer varies an order after the supply is commenced the Supplier may require payment for all work carried out up to the time of variation.
4.6 If a customer cancels an order the Supplier may require payment for work done under the order up to the date of cancellation together with compensation for any loss incurred as a result of the cancellation.
5. DELIVERY
5.1 The risk in the goods will pass to the customer upon dispatch from the Supplier’s premises unless otherwise agreed in writing.
5.2 If at the time of delivery the customer or its agent are absent from the site, delivery will be deemed to have been made at the time date and place certified by the carrier.
5.3 The delivery times for goods and completion times for services, if any, provided by the Supplier are estimates only and the Supplier will not be liable for late delivery of the goods or completion of services.
6. WARRANTIES AND LIABILITIES
6.1 All goods are sold subject only to the manufacturer’s guarantees, if any, and all other guarantees, conditions and warranties which may, by law, be excluded are excluded.
7. RETENTION OF TITLES AND THE PSA
Until the Customer has paid all moneys owing to the Supplier in respect of the supply of the goods:
7.1 Property in the goods will remain with the Supplier and the Customer will hold the goods as fiduciary and agent for the Supplier.
7.2 The Customer will not deal with the goods in any way inconsistent with the interests of the Supplier as owner except that the Customer may, in the ordinary course of business, sell the goods on behalf of the Supplier in which case it will account to the Supplier for the proceeds of sale which will be held in a separate account on trust for the Supplier.
7.3 The Customer will store the goods so as to ensure that they are capable of being clearly identified as the property of the Supplier and if the Customer mixes the goods with other products or items so that the goods are no longer separately identifiable then the Customer and the Supplier will be owners in common of the new product. The Customer may in the ordinary course of business sell the new product on behalf of the Customer and the Supplier in which case it will hold such part of the proceeds of such sale as relates to the goods, in trust for the Supplier. Such part shall be deemed to be equal to the amount owing by the Customer to the Supplier at the time of receipt of the proceeds.
7.4 The Supplier may, without prejudice to any of its other rights, without notice to the Customer, retake possession of the goods which remain the property of the Supplier and by its servants and agents enter upon the premises of the Customer or any other place where the goods may be upon the occurrence of any one or more of the following:
i) The Customer commences to be wound up or a provisional liquidator is appointed or the Customer is placed under official management or a receiver or a receiver and manager is appointed, or an administrator is appointed pursuant to the Corporations Law or a third party takes possession of the Customer’s undertaking or property.
ii) The Customer becomes insolvent or bankrupt or commits an act of bankruptcy or makes an assignment for the benefit of a creditor.
iii) The Customer fails to pay the whole or any part of the price of the goods or services or any other moneys owed to the Supplier when due.
7.5 The Customer will make good any damage caused by removal of the goods by or on behalf of the Supplier and the Customer indemnifies the Supplier in respect of any proceedings brought against the Supplier arising from the removal of the Goods.
7.6 The Customer consents to the Supplier registering any security interest arising from this Agreement and must sign any document and do all things necessary to perfect the security interest and ensure that the Supplier’s security interest has first priority.
7.7 The Customer must not create or attempt to create or agree or permit to exist any security interest over the goods other than the Supplier’s security interest.
7.8 The Customer must give the Supplier immediate notice and full particulars of any person taking steps to register a financing statement in relation to the Goods and must not without the prior written consent of the Supplier permit any financing statement to be registered in respect of the Goods.
7.9 The Supplier is not obliged to give any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
7.10 The Customer consents to the waiver of the requirement for notice under this clause and waives any rights it has to receive a notice under sections 95, 118, 121(4), 130, 135 and 157 of the PPSA.
7.11 To the extent that Chapter 4 of the PPSA would otherwise apply to enforcement by the Customer of any security interest in the Goods the parties agree that the following provisions of the PPSA are excluded:
a) to the extent permitted by section 115(1) of the PPSA: sections 125, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA; and
b) to the extent permitted by section 115(7) of the PPSA: sections 129(2) and (3), 132, 133(1)(b) (as it relates to the security interest of the Secured Party), 134(2), 135, 136(3), (4) and (5) and 137.
7.12 The Customer consents to the waiver of the requirement for notice under any other provision of the PPSA that the Supplier may notify to the Customer after the date of this document and waives any rights it has to receive that notice.
8. GENERAL
8.1 If a customer carries on business under a business name, the customer must notify the Supplier in writing of any change in ownership of the business name within 5 days of the change and agrees to indemnify the Supplier against any loss or damage suffered by the Supplier arising from the customer’s failure to give notice of the change.
8.2.1 Any notice, invoice or other document given by the customer or Supplier must be:
a) in writing; and
b) served on a party by:
i. personal service on the party; or
ii. by delivering the document or sending the document by prepaid express post, facsimile or email to the last known address for that party.
8.2.2 The notice, invoice or other document is deemed to be received:
a) in the case of delivery in person, when delivered;
b) in the case of an express posted letter, on the fourth Business Day after posting;
c) from which the facsimile was sent which indicates that all pages of the facsimile were successfully sent to the facsimile number on the recipient, on the day of transmission, or if not sent during business houses, then on the next Business Day after the transmission;
d) in the case of an email, on the day the email is sent, or if sent after business hours and before midnight, then on the next Business Day after the email is sent.
9. INTERPRETATION AND DEFINITIONS
9.1 In the Interpretation of this agreement unless the context otherwise requires:
a) the headings in this agreement shall not affect its interpretation.
b) words importing the singular shall include the plural and vice versa.
c) words importing one gender shall include the other genders.
d) all agreements and undertakings expressed or implied on behalf of more than one person shall bind such persons jointly and each of them severally.
e) the parties to this agreement include their respective successors, administrators and permitted assigns.
f) any uncertainty or ambiguity in the meaning of a provision of this agreement will not be interpreted against a party because that party drafted the provision.
g) words and expressions in the definitions of which are contained in the PPSA will be construed as having the meaning attributed to them in the PPSA.
h) “include” and similar expressions are not to be treated as words of limitation.
9.2 In this agreement unless the context otherwise requires:
“Consequential loss” means indirect or consequential loss or damage, including but not limited to:
a) loss of revenue or profit;
b) loss of business or anticipated savings;
c) any loss arising from the inability to use the goods or services; or
d) the costs incurred because of the need to obtain substituted goods or services on a temporary or full time basis.
“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended.
