The Stillman Family Trust T/A Max Power Electrical – Terms & Conditions of Trade
1. Definitions
1.1 “Max Power” shall mean The Stillman Family Trust T/A Max Power Electrical its successors and assigns or any person acting on behalf of and with the authority of The Trustee for Stillman Family Trust T/A Max Power Electrical.
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 Max Power to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by Max Power 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 Max Power to the Customer.
1.5 “Services” shall mean all Services supplied by Max Power to the Customer 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 Max Power and the Customer in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 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.
3. Acceptance
3.1 Any instructions received by Max Power from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Max Power shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon 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 Max Power.
3.4 The Customer shall give Max Power 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 Max Power as a result of the Customer’s failure to comply with this clause.
3.5 Goods are supplied by Max Power 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.
4. Price And Payment
4.1 At Max Power’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Max Power to the Customer in respect of Goods supplied; or
(b) Max Power’s quoted Price (subject to clause 4.2) which shall be binding upon Max Power provided that the Customer shall accept Max Power’s quotation in writing within fourteen (14) days.
4.2 Max Power reserves the right to change the Price in the event of a variation to Max Power’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of works required due to hidden or unidentifiable difficulties beyond the reasonable control of Max Power) will be detailed in writing and charged for on the basis of Max Power’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 Max Power’s sole discretion a deposit may be required.
4.4 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.
4.5 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and Max Power.
4.6 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.
5. Delivery Of Goods
5.1 At Max Power’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at Max Power’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Max Power or Max Power’s nominated carrier).
5.2 At Max Power’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Customer’s account.
5.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Max Power shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.5 Max Power may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6 The failure of Max Power to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Max Power shall not be liable for any loss or damage whatsoever due to failure by Max Power to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Max Power.
6. Risk
6.1 If Max Power retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Max Power is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Max Power is sufficient evidence of Max Power’s rights to receive the insurance proceeds without the need for any person dealing with Max Power to make further enquiries.
6.3 The Customer acknowledges that in the event asbestos or any other toxic substances are discovered at the Worksite that it is their responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify Max Power against any costs incurred by Max Power as a consequence of such discovery. Under no circumstances will Max Power handle removal of asbestos product.
6.4 Max Power is not responsible for the removal of rubbish from or clean-up of the building/constructions site/s. This is the responsibility of the Customer or the Customer’s agent.
7. Access
7.1 Max Power shall not be liable for any loss or damage caused in accessing the work site beyond reasonable control of Max Power (including, ceiling tiles and panels, face brickwork and rendered masonry services) which Max Power may have to break into or disturb in performance of the Works), unless due to the negligence of Max Power.
8. Underground Locations
8.1 Prior to Max Power commencing any work the Customer must advise Max Power 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,
8.1 telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
8.2 Whilst Max Power will take all care to avoid damage to any underground services the Customer agrees to indemnify Max Power 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. Title
9.1 Max Power and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Max Power all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to Max Power in respect of all contracts between Max Power and the Customer.
9.2 Receipt by Max Power 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 Max Power’s ownership or rights in respect of the Goods shall continue.
9.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Max Power shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from Max Power to the Customer Max Power may give notice in writing to the Customer to return the Goods or any of them to Max Power. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) Max Power shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to Max Power then Max Power or Max Power’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as Max Power has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Max Power for the Goods, on trust for Max Power; and
(f) the Customer shall not deal with the money of Max Power in any way which may be adverse to Max Power; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Max Power; and
(h) Max Power can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Max Power will be the owner of the end products.
10. Defects
10.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Max Power of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Max Power an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Max Power has agreed in writing that the Customer is entitled to reject, Max Power’s liability is limited to either (at Max Power’s discretion) replacing the Goods or repairing the Goods except where the Customer 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.
10.2 Goods will not be accepted for return other than in accordance with 10.1 above.
11. Warranty
11.1 Subject to the conditions of warranty set out in clause 11.2 Max Power warrants that if any defect in any workmanship of Max Power becomes apparent and is reported to Max Power within three (3) months of the date of delivery (time being of the essence) then Max Power will either (at Max Power’s sole discretion) replace or remedy the workmanship.
11.2 The conditions applicable to the warranty given by clause 11.1 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 Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by Max Power; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods 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 Max Power shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Max Power’s consent.
(c) in respect of all claims Max Power 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.
11.3 For Goods not manufactured by Max Power, the warranty shall be the current warranty provided by the manufacturer of the Goods. Max Power 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.
12. Intellectual Property
12.1 Where Max Power has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in Max Power, and shall only be used by the Customer at Max Power’s discretion.
12.2 The Customer warrants that all designs or instructions to Max Power will not cause Max Power to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Max Power against any action taken by a third party against Max Power in respect of any such infringement.
13. Default & Consequences of Default
13.1 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 Max Power’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by Max Power.
13.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Max Power from and against all costs and disbursements incurred by Max Power in pursuing the debt including legal costs on a solicitor and own client basis and Max Power’s collection agency costs.
13.4 Without prejudice to any other remedies Max Power may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Max Power may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. Max Power will not be liable to the Customer for any loss or damage the Customer suffers because Max Power has exercised its rights under this clause.
13.5 If any account remains overdue after twenty-eight (28) 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 fifty dollars ($50.00)) shall be
13.5 levied for administration fees which sum shall become immediately due and payable.
13.6 Without prejudice to Max Power’s other remedies at law Max Power shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Max Power shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Max Power becomes overdue, or in Max Power’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.
14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which Max Power 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 Max Power or Max Power’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that Max Power (or Max Power’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 Max Power elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Max Power from and against all Max Power’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 Max Power or Max Power’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 14.1.
15. Compliance with Laws
15.1 The Customer and Max Power 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.
15.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works.
15.3 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.
16. Cancellation
16.1 Max Power 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 Customer. On giving such notice Max Power shall repay to the Customer any sums paid in respect of the Price. Max Power shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by Max Power (including, but not limited to, any loss of profits) up to the time of cancellation.
16.3 Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
17. Privacy Act 1988
17.1 The Customer and/or the Guarantor/s agree for Max Power to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by Max Power.
17.2 The Customer and/or the Guarantor/s agree that Max Power may exchange information about the Customer and the Guarantor/s 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 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 credit worthiness of Customer and/or Guarantor/s.
17.3 The Customer consents to Max Power being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Customer agrees that personal credit information provided may be used and retained by Max Power for the following purposes and for other purposes as shall be agreed between the Customer and Max Power or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Max Power, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’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 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 Goods.
17.5 Max Power 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; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
18. Building and Construction Industry Security of Payment Act 2002
18.1 At Max Power’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 Payment Act 2002 may apply.
18.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.
19. General
19.1 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.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Victoria.
19.3 Max Power 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 Max Power of these terms and conditions.
19.4 In the event of any breach of this contract by Max Power the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
19.5 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 Max Power nor to withhold payment of any invoice because part of that invoice is in dispute.
19.6 Max Power may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
19.7 The Customer agrees that Max Power 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 Max Power notifies the Customer of such change.
19.8 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.
19.9 The failure by Max Power to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Max Power’s right to subsequently enforce that provision.
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