Terms and Conditions

1. Definitions

In these terms and conditions:

“Conditions” means the terms of these terms and conditions;

“Customer” means an individual, partnership or corporation seeking to acquire Goods or Services from the Supplier and where applicable includes the applicant in the Credit Application and, if the Customer consists of more than one person, each of them jointly and severally;

“Goods” means all plumbing products and materials and/or related components supplied by the Supplier to the Customer;

“GST” means GST within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended;

“Insolvency Event” means any matter referred to in clause 5.6(a) or (b) of these Conditions;

“Invoice” means invoice for Goods supplied or Services provided, or both;

“Order” means any request for the provision of Goods and/or Services by the Customer with the Supplier which has been accepted by the Supplier;

“Other Property” means all present and after-acquired property of the Customer (except the Goods) whether acquired alone or jointly as a tenant in common or as a joint tenant;

“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended;

“Premises” means the land or building where the Services are to be carried out;

“Price” means the amount invoiced for Goods supplied or Services provided;

“Real Property” means all real property interest held by the Customer now and in the future;

“Security Agreement” and “Security Interest” have the meaning ascribed to them in the PPSA;

“Services” means the delivery and/or supply of Goods, installations, maintenance and repairs done by the Supplier, including any advice or recommendations;

and “Supplier” means Insight Plumbing And Gas ABN: 86 536 630 110

2. Application of the Conditions

2.1. Subject to clause 2.4, or unless otherwise agreed in writing, these Conditions will apply exclusively to every Order or contract for the supply of Goods and or the provision of Services by the Supplier to the Customer and cannot be varied or replaced by any other conditions without the prior written consent of the Supplier.

2.2. Any written quotation provided by the Supplier to the Customer concerning the supply of Goods and or Services is valid for 30 days, unless otherwise stated in the quotation, and is an invitation only to the Customer to place an Order based upon that quotation.

2.3. The Supplier will not be deemed to have accepted an Order or an offer by the Customer unless it has communicated acceptance to the Customer in writing or has delivered the Goods or Services stated in the Order.

2.4. The Supplier may vary these Conditions provided it first gives 7 days written notice to the Customer. Any order placed, or Goods or Services supplied at the request of the Customer, after such 7 day period, will be deemed to be the Customer’s acceptance of the varied Conditions.

2.5. The Supplier may terminate this agreement on 7 days written notice. Any termination is without prejudice to the rights of the Supplier accrued prior to such termination including the right to be paid or to recover the Goods.

2.6. The Supplier may terminate this agreement without notice if an Insolvency Event occurs in relation to the Customer.

2.7. The Customer and Supplier agree to keep confidential the terms of these Conditions, including the Price of the Goods and Services, except as required by law.

3. Payment

3.1. GST will be charged on the Goods and/or Services provided by the Supplier that attract GST at the applicable rate.

3.2. The Supplier reserves the right to change the Price to the Supplier’s Order in the event of a variation which was previously unknown or unforeseen by the Supplier at the time the Order was placed, and notice will be provided in writing by the Supplier within a reasonable time.

3.3. At the Supplier’s sole discretion, the Price shall be either:

(a) as detailed on Invoices provided by the Supplier to the Customer in respect of Goods and/or Services supplied; or

(b) the Supplier’s quoted Price as for the Order (subject to clause 3.2).

3.4. Payment for Goods and/or Services must be made, without deduction or setoff, within 30 days following the date of the Invoice.

3.5. In the event that there are insufficient funds to meet any cheque drawn by the Customer in favour of the Supplier in payment of the Price, an administration fee of $100.00 will be charged on each and every representation and or dishonour.

3.6. The Supplier may withdraw any credit terms or require the provision of security at any time in its absolute discretion and without notice to the Customer and may apply any payment by the Customer in any manner as the Supplier sees fit.

4. Provision of Services and/or supply and delivery of Goods

4.1. Subject to otherwise complying with its obligations under this agreement, the Supplier shall exercise its independent discretion as to its most appropriate and effective manner of providing the Goods and/or Services and of satisfying the Customer’s expectations of those Goods.

4.2. The Customer is responsible to obtain all necessary permits and to mark out the site at the Premises for the provision of the Services.

4.3. The Customer is responsible for ensuring that the Goods are secured at the Premises and warrants to be responsible for any loss, damage or theft of the Goods delivered by the Supplier to the Premises.

4.4. Any period or date for delivery of Goods stated by the Supplier is intended as an estimate only and is not a contractual commitment. The Supplier may deliver the Customer’s Orders in part or in whole.

4.5. All costs of freight, insurance and other charges associated with the delivery of the Goods to the agreed delivery address shall be borne by the Customer.

4.6. If the Customer is unable or fails to accept delivery of the Goods, the Customer will be liable for all costs incurred by the Supplier due to storage, detention, double cartage, travel expenses or similar causes.

5. Payment Default and Security

5.1. If the Customer defaults in payment by the due date of any amount payable to the Supplier, then all money which would become payable by the Customer to the Supplier at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Supplier may, without prejudice to any accrued rights or other remedy available to it:

(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 2 per cent for the period from the due date until the date of payment in full;

(b) charge the Customer for all expenses and costs (including legal costs on an indemnity basis) incurred by it resulting from the default and in taking whatever action it deems appropriate to recover any sum due including enforcing the charge in clause 5.2;

(c) cease or suspend for such period as the Supplier thinks fit, supply of any further Goods, Services or credit to the Customer; and

(d) by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by the Supplier.

5.2. As security for any amounts due to the Supplier from time to time, the Customer charges all of its legal and equitable interest (both present and future) of whatsoever nature held in any and all Real Property to the Supplier.

5.3. Without limiting the generality of the charge in clause 5.2, the Customer agrees on request by the Supplier, to execute any documents and do all things reasonably required by the Supplier to perfect the charge given in clause 5.2, including registering a caveat or mortgage security over any Real Property. The Customer appoints the Supplier to be the Customer’s lawful attorney for the purposes of executing and registering such documents and taking all such steps in that regard. The Customer indemnifies the Supplier against all costs and expenses (including legal costs on an indemnity basis) incurred by the Supplier in connection with the preparation and registration of any such steps needed to perfect the security or prepare to register the caveat or mortgage documents.

5.4. The Customer consents unconditionally to the Supplier lodging a caveat or caveats noting its interest in any Real Property.

5.5. A statement in writing by an authorised officer of the Supplier setting out the moneys due or owing to the Supplier at the date of the statement shall be sufficient evidence of the amount so due or owing until the contrary is proven.

5.6. Clause 5.1 may also be relied upon, at the option of the Supplier:

(a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of any creditors; or

(b) where the Customer is a corporation and it enters into any scheme of arrangement or any assignment or composition with or for the benefit of any creditors or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.

5.7. In the event of a dispute, the Customer will not be entitled to withhold payment of any undisputed amount due to the Supplier.

6. Retention of title

6.1. The Customer agrees:

(a) title and property in all Goods remain vested in the Supplier and do not passto the Customer;

(b) the Customer must hold the Goods as fiduciary bailee and agent for the Supplier;

(c) the Customer must keep the Goods separate from its own goods and maintain the labelling and packaging of the Supplier;

(d) the Customer is required to hold the proceeds of any sale of the Goods on trust for the Supplier in a separate account;

(e) the Customer must deliver up all Goods to the Supplier immediately upon service of a written demand; and

(f) the Supplier may without notice, enter any premises where it suspects the Goods may be and remove them, notwithstanding that they may have been attached to other Goods not the property of the Supplier, and for this purpose the Customer irrevocably licences the Supplier to enter such premises and also indemnifies the Supplier from and against all costs, claims, demands or actions by any party arising from such action, until full payment in cleared funds is received by the Supplier for all Goods supplied by it to the Customer, as well as all other amounts owing to the Supplier by the Customer.

6.2. The Customer may resell the Goods in the ordinary course of its business (but may not otherwise sell or encumber the Goods) and if it does so shall receive the proceeds of resale as trustee of the Supplier, to be held on trust for the Supplier. The Supplier shall be entitled to trace the proceeds of resale.

6.3. The reservation of title and ownership is effective whether or not the Goods have been altered from their supplied form or commingled with other goods.

6.4. To assure performance of its obligations under these Conditions, the Customer hereby grants the Supplier an irrevocable power of attorney to do anything the Supplier considers should be done by the Customer pursuant to these Conditions. The Supplier may recover from the Customer the cost of doing anything under this clause 6, including registration fees and legal costs (on an indemnity basis).

7. Security Interest

7.1. The Customer agrees:

(a) that these Conditions constitute a Security Agreement for the purposes of the PPSA;

(b) that these Conditions create a Security Interest in all Goods (and the proceeds of the Goods) in favour of the Supplier to secure the Price for the Goods;

(c) that the following sections of the PPSA do not apply: 95, 118, 121(4), 125, 129(2), 129(3), 130, 132(3)(d), 132(4), 135, and, to the extent section 115(7) applies, each section of Part 4.3 of the PPSA is excluded unless the Supplier elects in writing to retain Part 4.3 (which the Supplier may elect to do either in whole or in part); and

(d) to waive its right to receive notice of a verification statement in relation to registration of a Security Interest.

7.2. The Customer:

(a) further agrees that these Conditions also create a Security Interest in all of the Customer’s Other Property, although such Security Interest is not intended to prevent the Customer from transferring such Other Property in the ordinary course of the Customer’s business; and

(b) separately charges all Real Property owned now and in the future by the Customer whether owned alone or jointly as a tenant in common or as a joint tenant, in favour of the Supplier to secure payment and performance of all the Customer’s obligations under these Conditions.

7.3. The Customer must immediately, if requested by the Supplier, sign any documents, provide all necessary information and do anything else required by the Supplier to ensure that the Supplier’s Security Interest is a perfected security interest.

7.4. The Customer will not enter into any other Security Agreement that permits any other person to have or to register any Security Interest in respect of the Goods or any proceeds from the sale of the Goods until the Supplier has perfected its Security Interest.

8. Risk and Insurance

8.1. The Customer will ensure when placing Orders that there is sufficient information to enable the Supplier to fulfill the Order.

8.2. The Supplier takes no responsibility if the specifications provided by the Customer are wrong or inaccurate and the Customer will be liable in that event for the expenses incurred by the Supplier for any work required to rectify the Order.

8.3. The Customer is responsible for ensuring that the Supplier is made aware of any special requirements pertaining to the Order and the Supplier relies upon the accuracy of the information supplied to it.

8.4. The Supplier takes no responsibility and will not be liable for any damages or costs resulting in the Goods being faulty as a consequence of insufficient information provided by the Customer.

8.5. The Supplier takes no responsibility for representations made in relation to the Goods or any delay in the delivery of the Goods made by a third party or third party manufacturer which was organised by the Customer.

8.6. The Customer acknowledges that the Supplier shall not be liable for and the Customer releases the Supplier from any loss incurred as a result of delay, or failure to provide the Goods or to observe any of these Conditions due to an event of force majeure, being any cause or circumstance beyond the Supplier’s reasonable control.

8.7. The Supplier does not represent that it will provide and/or deliver any Goods unless it is included in the quote provided to the Customer.

8.8. Subject to clauses 8.1 and 8.2, all risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the Goods will pass to the Customer immediately upon:

(a) collection of the Goods by the Customer; or

(b) delivery of the Goods to the Customer or to the carrier nominated by the Supplier or Customer.

9. Liability

9.1. Except as specifically set out herein, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.

9.2. The Supplier is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused arising from the supply of the Goods or Services, including but not limited to loss of turnover, profits, business or goodwill.

9.3. The Supplier will not be liable for any loss, damage or claim suffered by the Customer where the Supplier has failed to meet any delivery date or cancels or suspends the supply of Goods or Services.

9.4. Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of Goods and/or Services which cannot be excluded, restricted or modified. If any of these Conditions is inconsistent with State or Federal legislation, such Conditions must be read down only to the extent necessary to comply with such legislation and will otherwise apply to the fullest extent legally possible.

9.5. The Supplier’s total aggregate liability for any loss, damage or claim suffered by the Customer, however arising, shall not exceed the GST exclusive aggregate Price paid by the Customer to the Supplier for the specific Goods or Services that gave rise to the loss, damage or claim in question.

9.6. The Customer must take reasonable steps to mitigate any loss, damage or claim it suffers or incurs.

10. Warranties

10.1. Warranty for Services

(a) The Supplier warrants that if any defect in any Service provided by the Supplier becomes apparent and is reported to the Supplier within thirty (30) days of the provision of the Services then the Supplier will (at the Supplier’s sole discretion) remedy the defective Service.

(b) If any Services provided by the Supplier are repaired or altered by the Customer or caused to be repaired or altered by the Customer without the Supplier’s consent, the warranty shall cease and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty.

(c) In respect of all claims the Supplier shall not be liable to compensate the Customer for any delay in replacing the defective Goods or remedying the defective Services or in properly assessing the Customer’s claim. The Supplier will use its best endeavors to assist the Customer with its claim.

(d) Where the Customer has complied with the conditions of warranty for defective Services, the Supplier’s liability is limited to rectifying and/or remedying the defective Services.

10.2. Warranty for Goods

(a) The warranty for Goods supplied shall be the current warranty provided by the manufacturer of the Goods. The Supplier 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. The Supplier will use its best endeavours to assist the Customer with any claim with respect of the Goods.

(b) The Customer continues to be responsible for all amounts owing to the Supplier in the event that any Goods are supplied on the basis that a manufacturer’s warranty is in place and it subsequently becomes known to the parties that the warranty is void or inapplicable.

(c) The Supplier warrants that its Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure
and to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.

10.3. Claims made under Warranty

Subject to clause 9.4, claims for warranty should be made in one of the following ways:

(a) The Customer must send the claim in writing together with proof of purchase to the Supplier’s business address stated in clause 1 of this agreement.

(b) The Customer must email the claim together with the proof of purchase to the Supplier at bookings@insightplumbers.au.

(c) The Customer must contact the Supplier on the Supplier’s business number on 0475 685 681.

(d) Goods where a claim is made are to be returned to the Supplier or are to be left in the state and condition in which they were delivered until such time as the Supplier or its agent has inspected the Goods. Such inspection is to be carried out within a reasonable time after notification.

11. Cancellation

11.1. No purported cancellation or suspension of an Order by the Customer will be binding on the Supplier after that Order has been accepted by the Supplier. Cancellation of ordered Services less than two hours prior to the planned commencement time of the Services will incur a four hour minimum charge.

11.2. In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Supplier (including, but not limited to, any loss of profits) up to the time of cancellation.

11.3. If the Customer places an Order with the Supplier and the Supplier places an Order with a third party Supplier to meet the Customer’s request, the Customer shall be liable for the Price of the Goods ordered if the Customer cancels the Order and the Goods have already been dispatched.

12. Goods Returned

12.1. All Goods are sold on a non-returnable, non-refundable basis and, subject to clause 12.3, may only be returned if the Goods are damaged by the Supplier upon delivery or are incorrectly supplied by the Supplier.

12.2. Any claim by the Customer that the Goods are damaged or incorrectly supplied must be made in writing to the Supplier within 5 business days of receipt of the Goods by the Customer and the Customer must provide a reasonable opportunity for the Supplier to inspect the Goods. The Supplier’s only liability (if any) is limited to the resupply of the Goods.

12.3. The Supplier may, in its sole and absolute discretion, agree to accept a return of some or all of the Goods but all such Goods returned will be subject to a minimum 25% handling fee.

13. Set-off

13.1. The Customer shall have no right of set-off in any suit, claim or proceeding brought by the Supplier against the Customer for default in payment.

13.2. The Customer acknowledges that the Supplier can produce this clause in bar of any proceeding for set-off.

14. Access

14.1. The Customer shall, where relevant, ensure the Supplier has full and safe access to the Premises and any necessary essential services, resources, equipment, materials and information.

14.2. The Customer will be charged an additional fee if the Supplier’s work is interfered with or no proper or safe access is provided to the Supplier.

14.3. The Supplier will not be held responsible for any delay due to inclement weather, failure of the Customer to provide required items or changes requested to be made by the Customer and/or in any circumstances beyond the Supplier’s reasonable control.

14.4. The Customer shall supply water and/or electricity to the Supplier to carry out the Order at no costs to the Supplier.

15. Entire Agreement

This agreement is the entire agreement between the parties and supersedes all and any communications, negotiations, arrangements and agreements, whether oral or written, between the parties in respect of the matters that are the subject of this agreement.

16. Governing Law

These Conditions are governed by and are to be interpreted according to the laws in force in Victoria and the parties submit to the non-exclusive jurisdiction of the courts operating in Victoria.

You Really Got This Far?

That’s Insightful – You probably need an insightful plumber!