“this agreement” means these Terms and Conditions of Service.
‘the Company’ means SA Asbestos Services Pty Ltd ABN 25 644 986 354, and includes its successors and permitted assigns, authorised representatives, agents, or doly authorised signatories.
‘the Customer’ means the person, persons or company and/or any other legal entity to whom the quotation and/or invoices and/or correspondence is addressed, and shall include, where the customer is a company, the directors, administrators, agents, representatives, successors and authorised signatories.
“financing statement”, “financing change statement”, “security agreement”, and “security interest” have the meaning as defined in the PPSA.
“Fee” means the fee payable by the Customer for receiving the Services (plus GST where applicable) as agreed between the Company and the Customer.
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“Services” means all services provided by the Company to the Customer as requested by the Customer from time to time.
Application of Terms
2. These terms and conditions shall be deemed to be incorporated in every contract for the supply of Services by the Company to the Customer, and shall apply to the exclusion of all others, including any terms and conditions of the Customer, with the exception of any terms and conditions necessarily implied by statute.
3. All quotations by the Company are valid for a period of thirty (30) days.
4. Acceptance is required in writing prior to commencement of work. Notwithstanding, if, for whatever reason, works commence prior to the communication of written acceptance by the Customer, the commencement of work shall be deemed to constitute the Customer’s acceptance of the terms and conditions contained herein.
5. The Company’s Fees are quoted as a guide only and are subject to a site inspection prior to the commencement of the Services.
Fees and Payment Terms
6. The Fee in respect of the Services supplied shall be as indicated on invoices provided by the Company S.A. Asbestos Services Pty Ltd to the Customer.
7. Unless otherwise stated, the Fee does not include GST. Any applicable goods and services tax will be added in accordance with, and subject to the applicable GST law as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
8. In addition to the Fee, the Client must pay to the Company an amount equal to any GST the Company must pay for any supply by the Company under this or any other agreement for the supply of the Services. The Customer must pay GST, without deduction or set off, at the same time and on the same basis as the Client pays the Fee. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Fee except where they are expressly included in the Fee.
9. The due date for payment of the Fees will be as stated on the Company’s invoice, quotation, or any other order forms. If no time is stated and the Company has not otherwise approved credit terms for the Customer, then payment will be due seven (7) days following the date of the invoice.
10. The Customer must pay the Fee without deduction or set-off, nor withhold payment of any invoice because part of that invoice is in dispute.
11. Receipt by the Company S.A. Asbestos Services Pty Ltd for any form of payment other than cash shall not be deemed to be received until that form of payment has been honoured, cleared or recognised in the Company’s bank account.
12. If the Customer has made a payment to the Company by credit card, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Company where it can be proven that such reversal is found to be illegal, fraudulent or in contravention of the Customer’s obligations under this agreement.
13. Any invoices not paid by the due date for payment will be deemed to be overdue and constitute an act of default under this agreement.
14. The Company, may in its absolute discretion, charge interest on any monies due but not paid by the relevant due date, at a rate of 15% per annum calculated daily on the outstanding amount owing, from the date payment is required until the date the Company receives payment in full.
Security and Charge
15. In order to secure the performance by the Customer of its obligations under this agreement, including but not limited to payment of all monies for which the Customer may become liable to pay the Company hereunder, the Customer hereby charges as beneficial owner all of the Customer’s freehold and leasehold interest in land both in which the Customer is now possessed and which may hereafter acquire, along with all of the Customer’s personal property both presently owned by the Customer and that which the Customer may hereafter acquire.
16. The Customer further agrees that, immediately upon demand being made upon the Customer by the Company, SA Asbestos Services Pty Ltd the Customer shall deliver to the Company such instrument of security or consent to caveat as the Company may require, duly executed or consented to by the Customer.
17. In the event that the Customer should neglect or fail to deliver the requested instrument or security, the Customer hereby appoints the Company to be the Customer’s lawful attorney for the purpose of executing and registering such instruments.
Personal Property Securities Act 2009 Cth (“PPSA”)
18. Upon consenting to these terms and conditions in writing, the Customer acknowledges and agrees that this agreement constitute a security agreement for the purposes of the PPSA and creates a security interest in all the Customer’s personal property, as security for the Customer’s obligation to pay the Fees to the Company for the Services, that have previously been supplied and that will be supplied in the future by the Company to the Customer.
19. The Customer undertakes to:
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 Company may reasonably require to register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
Register any other document required to be registered by the PPSA in respect of the Company’s security interest; or
Correct a defect in a statement referred to in clause 19.a or 19.b;
Indemnify, and reimburse the Company upon demand 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 goods charged thereby;
Not register a financing change statement in respect of a security interest without the prior written consent of the Company;
Not register, or permit to be registered, a financing statement or a financing change statement in relation to the Customer’s personal property in favour of a third party without the prior written consent of the Company.
20. The Company and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by this agreement.
21. The Customer waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
22. The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
23. Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
24. The Customer must unconditionally ratify any actions taken by Company under clauses 19 to 21 inclusive.
25. Subject to any express provisions to the contrary (including those contained in clauses 19 to 25 inclusive), nothing in this agreement is intended to have the effect of contracting out of any of the provisions of the PPSA.
Limitation of Liability
26. The Company liability to the Customer for any claim for loss or damages, including but not limited to, claims for negligence or injury to any person, corporation or other entity is limited to the amount which is equal to the lower of the cost of providing the Services again, and the actual Fee paid by the Customer for the Services.
27. The Company shall not be liable 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 Company of this agreement.
28. Where applicable nothing in this agreement is intended to have the effect of contracting out of the Competition and Consumer Act 2010 (Cth).
29. Neither party shall be liable for any default of this agreement 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.
Default and Termination Rights
30. The Company reserves its rights to terminate this agreement at any time without notice to the Customer, where the Customer has committed a breach of this agreement or any other agreement with the Company and/or its representatives and/or where the Customer is more than thirty (30) days in arrears of payments to the Company.
31. Termination of this agreement shall not affect
Any term expressed or intended to survive termination of this agreement; or
Any rights of a party accrued prior to the date of termination.
32. In the event either party fails to observe, perform, carry out or otherwise contravenes any of its obligations pursuant to this agreement (“the Defaulting Party”) then that party shall have committed an act of default (“an act of default”).
33. In the event the Defaulting Party commits an act of default, the other party not in default (“the Non-Defaulting Party”) may at any time, without prejudice to any other right it has pursuant to the terms of this agreement or otherwise:
Give written notice to the Defaulting Party to remedy the default immediately; and/or
Immediately terminate this agreement by giving the Defaulting Party written notice of its intention to do so; and/or
Plead this agreement as a bar to any subsequent proceeding brought in breach of this agreement; and/or
Claim from the Defaulting Party all monies payable to the Non-Defaulting Party (less any monies paid or credit note allowed, in accordance with this agreement) as monies immediately due and payable to the other party not in default; and/or
Commence or continue any proceeding on foot between the parties against the Defaulting Party.
34. In the event of default and in addition to any other obligation pursuant to this agreement, the Defaulting Party must indemnify the Non-Defaulting Party against:
Any and all loss and/or damage suffered by the Non-Defaulting Party as a consequence or otherwise connected to the act of default;
Any and all liabilities incurred by the Non-Defaulting Party as a consequence or otherwise connected to the act of default;
Any and all cost, expense or monies paid or incurred by the Non-Defaulting Party in respect of any suit, claim, action, demand, arbitration, appeal, mediation, compromise, out of Court settlement or other proceeding commenced by the Non-Defaulting Party to enforce the terms of this agreement or as a consequence of an act of default, on a full indemnity basis; and/or
Any and all cost, expense or monies paid or incurred by the Non-Defaulting Party in respect of any suit, claim, action, demand, arbitration, appeal, mediation, compromise, out of Court settlement or other proceeding necessarily defended by the Non-Defaulting Party as a consequence of or otherwise connected to the act of default (on a full indemnity basis).
35. The Defaulting Party must comply with its obligations pursuant to this agreement above irrespective of whether or not the Non-Defaulting Party has paid or satisfied the alleged liability, cost, expense or monies.
36. In the event of termination, the Company shall not be liable by reason of the termination of the agreement for any damages, compensation, reimbursement on account of any loss of possible loss of profits, expenses or other commitments the Customer may have had, or has in relation to the Services.
37. Any time or other indulgences granted by the Company to the Customer shall not affect any of the Company’s rights contained herein.
Privacy Act 1988 (Cth)
38. The Customer authorises the Company to obtain from a credit reporting agency a credit report containing personal credit information, or a commercial credit worthiness report, should the Company consider it necessary to assess any application for credit by the Customer.
39. If the Company consider it relevant to the collection of overdue amounts in respect of commercial credit, the Company may obtain from a credit reporting agency a credit report containing personal information about the Customer or the Customer’s credit arrangements.
40. The Customer and the Company SA Asbestos Services Pty Ltd agree that the information contained in any application for credit by the Customer will be used by the Company to decide whether or not credit is to be provided to the Customer and the Customer warrants that all such information is true and correct and not misleading in any respect.
41. The Customer acknowledges that any application for credit to the Company is made for business purposes.
42. The Customer consents to the collection, use or disclosure of any personal information of the Customer by the Company from the Customer or any third party including (without limitation) credit providers or credit reporting agencies for the purpose of assessing the Customer’s application for commercial credit; for the purpose of assessing the Customer’s suitability for the provision of a guarantee for any credit provided to the Customer; in relation to the collection of any overdue payment; to notify other credit providers of a default by the Customer; to exchange information with other credit providers as to the status of this account where the Customer is in default with other credit providers; to exchange information with other credit providers about the Customer’s credit arrangements; to assess the Customer’s credit worthiness; and where in the opinion of the Company the Customer has committed a serious credit infringement.
43. The Customer acknowledges that the credit information referred to above may be used by the Company, its solicitors or agents.
44. The Customer (if an individual) may access and correct his/her personal information held by the Company upon request, such request to be directed to the Company’s Client Services Manager.
45. The Customer shall have the right to request (by e-mail) from the Company:
A copy of the information about the Customer retained by the Company and the right to request that the Company correct any incorrect information; and
That the Company does not disclose any personal information about the Customer for the purpose of direct marketing.
46. The Company will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
47. The Customer may make a privacy complaint by the Company via e-mail. The Company will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
48. The failure by either party to enforce any provision of this agreement shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision.
49. In the event any paragraph herein, or any part thereof, shall be deemed to be void or unenforceable at law, that paragraph, or part thereof shall be severed, and the remaining provisions shall remain enforceable between the parties to the extent legally practicable.
50. This agreement and any contract to which they apply shall be governed by the laws of the state of South Australia, and the parties submit to the non exclusive jurisdiction of the courts of South Australia. Any action brought in the Federal Court must be instituted in its Adelaide Registry.