1.1 “Erak” means Erak Painting Pty Ltd ATF Erak Family Trust T/A Erak Painting Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Erak Painting Pty Ltd ATF Erak Family Trust T/A Erak Painting Pty Ltd.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by Erak 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 for the Goods as agreed between Erak and the Client in accordance with clause 4 below.
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 Erak’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Erak.
2.3 Erak reserves the right to refuse to enter the site to undertake the Services in the event that the Company believes the site to be unsafe. In this event, the Client agrees that it is their responsibility to ensure the site is made safe before the Company will enter the site, the Company shall not be liable for any delays caused, loss, damages, or costs however resulting from an unsafe site.
3. Change in Control
3.1 The Client shall give Erak 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 Erak as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At Erak’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Erak to the Client; or
(b) Erak’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 Erak reserves the right to change the Price if a variation to Erak’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to Erak in the cost of taxes, levies, materials and labour 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, safety considerations, prerequisite work by any third party not being completed, previous base work is found to be unsuitable and/or unsatisfactory or change in design etc which are only discovered on commencement of the Services) will be charged for on the basis of Erak’s quotation and will be shown as variations on the invoice.
4.3 At Erak’s sole discretion a deposit may be required of up to;
(a) ten percent (10%) of the Price if the Price is less than $20,000; or
(b) five percent of the Price if the Price is more than $20,000.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Erak, which may be:
(a) on delivery of the Goods;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Erak.
4.5 Erak may submit a detailed progress payment claim prior to completion of the Services at the rate of up to ninety percent (90%) of the value of the completed Services at the date of the progress payment claim.
4.6 Payment may be made by cash, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and Erak.
4.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Erak an amount equal to any GST Erak must pay for any supply by Erak under this or any other agreement 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.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at Erak’s address; or
(b) Erak (or Erak’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.2 Subject to clause 5.3 it is Erak’s responsibility to ensure that the Services start as soon as it is reasonably possible.
5.3 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Erak claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Erak’s 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 Erak that the site is ready.
5.4 At Erak’s sole discretion the cost of delivery is included in the Price.
5.5 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Erak shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.6 Erak may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.7 Any time or date given by Erak to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Erak will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Erak is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Erak is sufficient evidence of Erak’s rights to receive the insurance proceeds without the need for any person dealing with Erak to make further enquiries.
6.3 The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Erak will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
6.4 Where Erak is required to install the Goods the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and Erak shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
6.5 Where the Client has supplied materials for Erak to complete the Services, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. Erak shall not be responsible for any defects in the Services, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of materials supplied by the Client.
7. Clients Responsibilities
7.1 It is the Clients responsibility to;
(a) have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation; and
(b) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by Erak in this regard; and
(c) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between Erak and the Client, any additional costs will be invoiced to the Client as an extra.
7.2 Erak is not insured to remove furniture or fittings and will not do so, nor is Erak licensed to move gas or electrical appliances.
7.3 It is the intention of Erak and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding to enable the Services to be undertaken (where in Erak’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.
7.4 The Client 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 Client further agrees to indemnify Erak against any costs incurred by Erak as a consequence of such discovery. Under no circumstances will Erak handle removal of asbestos product.
8. Dimensions, Plans and Specifications
8.1 All customary building industry tolerances shall apply to the dimensions and measurements of the Goods unless Erak and the Client agree otherwise in writing.
8.2 Erak shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client
8.3 If the giving of an estimate or quotation for the supply of Goods involves Erak estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of Erak’s estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.
8.4 Should the Client require any changes to Erak’s estimated measurements and quantities, the Client shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.
9.1 The Client shall ensure that Erak has clear and free access to the work site at all times to enable them to undertake the Services. Erak 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 Erak.
10.1 Erak and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Erak all amounts owing to Erak; and
(b) the Client has met all of its other obligations to Erak.
10.2 Receipt by Erak 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.
10.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 10.1 that the Client is only a bailee of the Goods and must return the Goods to Erak on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Erak and must pay to Erak 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 Erak and must pay or deliver the proceeds to Erak 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 Erak and must sell, dispose of or return the resulting product to Erak as it so directs.
(e) the Client irrevocably authorises Erak to enter any premises where Erak believes the Goods are kept and recover possession of the Goods.
(f) Erak 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 Erak.
(h) Erak may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
11. Personal Property Securities Act 2009 (“PPSA”)
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Erak to the Client.
11.3 The Client undertakes to:
(a) 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 Erak may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 11.3(a)(i) or 11.3(a)(ii);
(b) indemnify, and upon demand reimburse, Erak 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;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Erak;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Erak;
(e) immediately advise Erak of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
11.4 Erak and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by Erak, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Client must unconditionally ratify any actions taken by Erak under clauses 11.3 to 11.5.
11.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12. Security and Charge
12.1 In consideration of Erak agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
12.2 The Client indemnifies Erak from and against all Erak’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Erak’s rights under this clause.
12.3 The Client irrevocably appoints Erak and each director of Erak as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
13.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify Erak 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 Erak to inspect the Goods.
13.2 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).
13.3 Erak acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Erak makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Erak’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5 If the Client is a consumer within the meaning of the CCA, Erak’s liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If Erak is required to replace the Goods under this clause or the CCA, but is unable to do so, Erak may refund any money the Client has paid for the Goods.
13.7 If the Client is not a consumer within the meaning of the CCA, Erak’s 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 Erak at Erak’s sole discretion;
(b) limited to any warranty to which Erak is entitled, if Erak did not manufacture the Goods;
(c) otherwise negated absolutely.
13.8 Subject to this clause 13, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 13.1; and
(b) Erak 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.
13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, Erak 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 Erak;
(e) fair wear and tear, any accident, or act of God.
13.10 Notwithstanding anything contained in this clause if Erak is required by a law to accept a return then Erak will only accept a return on the conditions imposed by that law.
14. Intellectual Property
14.1 Where Erak has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Erak.
14.2 The Client warrants that all designs, specifications or instructions given to Erak will not cause Erak to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Erak against any action taken by a third party against Erak in respect of any such infringement.
14.3 The Client agrees that Erak may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Erak has created for the Client.
15. Default and Consequences of Default
15.1 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 a half percent (2.5%) per calendar month (and at Erak’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Client owes Erak any money the Client shall indemnify Erak from and against all costs and disbursements incurred by Erak in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Erak’s collection agency costs, and bank dishonour fees).
15.3 Without prejudice to any other remedies Erak may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Erak may suspend or terminate the supply of Goods to the Client. Erak will not be liable to the Client for any loss or damage the Client suffers because Erak has exercised its rights under this clause.
15.4 Without prejudice to Erak’s other remedies at law Erak shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Erak shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Erak becomes overdue, or in Erak’s opinion the Client will be unable to make a payment when it falls due;
(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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16. Compliance with Laws
16.1 The Client and Erak shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
16.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
16.3 The Client 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.
17. Dispute Resolution
17.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
18.1 Erak shall have public liability insurance of at least $5m. It is the Clients responsibility to ensure that they are similarly insured.
19.1 Erak 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 Erak shall repay to the Client any money paid by the Client for the Goods. Erak shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.2 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 Erak as a direct result of the cancellation (including, but not limited to, any loss of profits).
20. Privacy Act 1988
20.1 The Client agrees for Erak to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Erak.
20.2 The Client agrees that Erak may exchange information about the Client 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 the 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 creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
20.3 The Client consents to Erak being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
20.4 The Client agrees that personal credit information provided may be used and retained by Erak for the following purposes (and for other purposes as shall be agreed between the Client and Erak or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Erak, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the 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.
20.5 Erak 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;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
20.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Erak is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Erak, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by Erak has been paid or otherwise discharged.
21. Building and Construction Industry Security of Payments Act 1999
21.1 At Erak’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.
21.2 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 Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
22.1 The failure by Erak to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Erak’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.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state of New South Wales in which Erak has its principal place of business, and are subject to the jurisdiction of the courts of Liverpool in that state.
22.3 Subject to clause 13 Erak 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 Erak of these terms and conditions (alternatively Erak’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
22.4 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 Erak nor to withhold payment of any invoice because part of that invoice is in dispute.
22.5 Erak may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
22.6 The Client agrees that Erak may amend these terms and conditions at any time. If Erak makes a change to these terms and conditions, then that change will take effect from the date on which Erak notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Erak to provide Goods to the Client.
22.7 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.
22.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.