“Sulex” means A & S Tuason ATF A & S Tuason Family Trust T/A Sulex Electrics, its successors and assigns or any person acting on behalf of and with the authority of A & S Tuason ATF A & S Tuason Family Trust T/A Sulex Electrics.
“Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Sulex to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
if there is more than one Client, is a reference to each Client jointly and severally; and
if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
includes the Client’s executors, administrators, successors and permitted assigns.
“Goods” means all Goods or Services supplied by Sulex 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).
“Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Sulex and the Client in accordance with clause 5
“GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
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.
These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and Sulex.
Any advice, recommendation, information, assistance or service provided by Sulex in relation to Goods or Services supplied is given in good faith, is based on Sulex’ own knowledge and experience and shall be accepted without liability on the part of Sulex and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
In the event that Sulex is required to provide the Services urgently, that may require Sulex’ staff to work outside normal business hours (including but not limited to working through lunch breaks, weekends and/or Public Holidays) then Sulex reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between Sulex and the Client.
If Sulex has been requested by the Client to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Client irrespective of whether or not the repair goes ahead.
The Client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, Sulex reserves the right to substitute comparable Goods (or components of the Goods) and vary the Price as per clause 2, subject to prior confirmation and agreement of both parties. In all such cases Sulex will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order on hold until such time as Sulex and the Client agree to such changes.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
The Client acknowledges and accepts that Sulex shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
resulting from an inadvertent mistake made by Sulex in the formation and/or administration of this contract; and/or
contained in/omitted from any literature (hard copy and/or electronic) supplied by Sulex in respect of the Services.
In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of Sulex; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
The Client shall give Sulex 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 Sulex as a result of the Client’s failure to comply with this clause.
5. Price and Payment
At Sulex’ sole discretion, the Price shall be either:
as indicated on any invoice provided by Sulex to the Client; or
Sulex’ quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of fourteen (14) days.
Sulex reserves the right to change the Price:
if a variation to the Goods which are to be supplied is requested; or
if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
if during the course of the Services, the Goods are not or cease to be available from Sulex’ third party suppliers, then Sulex reserves the right to provide alternative Goods; or
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, obscured site defects which require remedial work (e.g. poor existing wiring, etc.), health hazards and safety considerations (such as the discovery of asbestos), availability of machinery, prerequisite work by any third party not being completed, hard rock barriers below the surface or iron reinforcing rods in concrete, hidden pipes and wiring/cabling, etc.) which are only discovered on commencement of the Services; or
in the event of increases to Sulex in the cost of labour or materials (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to Sulex in the cost of taxes, levies, freight and insurance charges etc.) which are beyond Sulex’ control.
Variations will be charged for on the basis of Sulex’ quotation, and will be detailed in writing, and shown as variations on Sulex’ invoice. The Client shall be required to respond to any variation submitted by Sulex within ten (10) working days. Failure to do so will entitle Sulex to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
At Sulex’ sole discretion, a non-refundable deposit may be required.
Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Sulex, which may be:
on delivery of the Goods;
by way of instalments/progress payments in accordance with Sulex’ payment schedule;
fourteen (14) days following the date specified on any invoice or other form as being the date for payment;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Sulex.
Payment may be made by cash, cheque, bank cheque, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Sulex.
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 Sulex nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Sulex an amount equal to any GST Sulex must pay for any supply by Sulex under this or any other contract 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.
6. Provision of Services
Delivery (“Delivery”) of the Goods is taken to occur at the time that Sulex (or Sulex’ nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Sulex claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Sulex’ control, including but not limited to any failure by the Client to:
make a selection; or
have the site ready for the Services; or
notify Sulex that the site is ready.
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.
If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Sulex is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Sulex is sufficient evidence of Sulex’ rights to receive the insurance proceeds without the need for any person dealing with Sulex to make further enquiries.
If the Client requests Sulex to leave Goods outside Sulex’ premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or dangerous access to roofing), Sulex reasonably forms the opinion that the Client’s premises is not safe for the installation of Goods to proceed then Sulex shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 2) until Sulex is satisfied that it is safe for the installation to proceed.
In the event asbestos or any other toxic substances are discovered at the property, that it is the Client’s responsibility to ensure the safe removal of the same. The Client further agrees to indemnify Sulex against any costs incurred by Sulex as a consequence of such discovery. Under no circumstances will Sulex handle removal of asbestos product.
Where the Client has supplied Goods for Sulex to complete the Services, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in the Goods. Sulex shall not be responsible for any defects in the Goods, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of Goods supplied by the Client.
The Client acknowledges that:
all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in Sulex’ or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by Sulex;
Sulex is only responsible for parts that are replaced by Sulex, and in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify Sulex against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising;
the Goods may fade or change colour over time, expand, contract or distort as a result of exposure, heat, and cold temperatures, mark or stain if exposed to certain substances and be damaged or disfigured by impact or scratching;
Sulex shall not be responsible or liable for any defect in other appliances or power points as a coincidence of Sulex installing the Goods; and
it is the Client’s responsibility to insure any equipment partly or completely installed on site, against theft or damage.
The Client further acknowledges and accepts that where Sulex has performed temporary repairs that:
Sulex will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair.
In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify Sulex immediately upon any proposed changes. The Client agrees to indemnify Sulex against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 2.
8. Accuracy of Client’s Plans and Measurements
Sulex shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, Sulex accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
In the event the Client gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or Sulex places an order based on these measurements and quantities. Sulex accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
9. Client’s Responsibilities
Prior to Sulex commencing the Services the Client must advise Sulex of the precise location of all services on the site and clearly mark the same. The mains and services the Client 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, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the site. Whilst Sulex will take all care to avoid damage to any underground services, the Client agrees to indemnify Sulex 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 this clause 1./li>
It is the intention of Sulex, and agreed by the Client, that it is the responsibility of the Client to:
ensure that Sulex has clear and free access to the work site at all times to enable them to undertake the Services. Sulex 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 Sulex; and
provide Sulex with facilities, as specified by Sulex, (including, but not limited to, a suitable free power source) for the duration of the Services.
Sulex and the Client agree that ownership of the Goods shall not pass until:
the Client has paid Sulex all amounts owing to Sulex; and
the Client has met all of its other obligations to Sulex.
Receipt by Sulex 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.
It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 1:
the Client is only a bailee of the Goods and must return the Goods to Sulex on request.
the Client holds the benefit of the Client’s insurance of the Goods on trust for Sulex and must pay to Sulex the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
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 Sulex and must pay or deliver the proceeds to Sulex on demand.
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 Sulex and must sell, dispose of or return the resulting product to Sulex as it so directs.
the Client irrevocably authorises Sulex to enter any premises where Sulex believes the Goods are kept and recover possession of the Goods.
Sulex may recover possession of any Goods in transit whether or not delivery has occurred.
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 Sulex.
Sulex 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”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
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 and/or collateral (account) – being a monetary obligation of the Client to Sulex for Services – that have previously been supplied and that will be supplied in the future by Sulex to the Client.
The Client 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 Sulex 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; or
correct a defect in a statement referred to in clause 3(a)(i) or 11.3(a)(ii);
indemnify, and upon demand reimburse, Sulex 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 Sulex;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of Sulex;
immediately advise Sulex 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.
Sulex 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.
The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by Sulex, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
The Client must unconditionally ratify any actions taken by Sulex under clauses 3 to 11.5.
Subject to any express provisions to the contrary (including those contained in this clause 11) 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
In consideration of Sulex 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).
The Client indemnifies Sulex from and against all Sulex’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Sulex’ rights under this clause.
The Client irrevocably appoints Sulex and each director of Sulex 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)
The Client must inspect the Goods on delivery and must within three (3) days of delivery notify Sulex 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 Sulex to inspect the Goods.
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).
Sulex acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Sulex makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Sulex’ liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Client is a consumer within the meaning of the CCA, Sulex’ liability is limited to the extent permitted by section 64A of Schedule 2.
If Sulex is required to replace the Goods under this clause or the CCA, but is unable to do so, Sulex may refund any money the Client has paid for the Goods.
If the Client is not a consumer within the meaning of the CCA, Sulex’ liability for any defect or damage in the Goods is:
limited to the value of any express warranty or warranty card provided to the Client by Sulex at Sulex’ sole discretion;
limited to any warranty to which Sulex is entitled, if Sulex did not manufacture the Goods;
otherwise negated absolutely.
Subject to this clause 13, returns will only be accepted provided that:
the Client has complied with the provisions of clause 1; and
Sulex has agreed that the Goods are defective; and
the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
the Goods are returned in as close a condition to that in which they were delivered as is possible.
Notwithstanding clauses 1 to 13.8 but subject to the CCA, Sulex shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
the Client failing to properly maintain or store any Goods;
the Client using the Goods for any purpose other than that for which they were designed;
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;
the Client failing to follow any instructions or guidelines provided by Sulex;
fair wear and tear, any accident, or act of God.
Sulex may in its absolute discretion accept non-defective Goods for return in which case Sulex may require the Client to pay handling fees of up to twenty-fine percent (25%) of the value of the returned Goods plus any freight costs.
Notwithstanding anything contained in this clause if Sulex is required by a law to accept a return then Sulex will only accept a return on the conditions imposed by that law.
Subject to clause 1, customised, or non-stocklist items or Incidental Items made or ordered to the Client’s specifications are not acceptable for credit or return.
14. Intellectual Property
Where Sulex has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Sulex. Under no circumstances may such designs, drawings and documents be used without the express written approval of Sulex.
The Client warrants that all designs, specifications or instructions given to Sulex will not cause Sulex to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Sulex against any action taken by a third party against Sulex in respect of any such infringement.
The Client agrees that Sulex may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Sulex has created for the Client.
15. Default and Consequences of Default
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 Sulex’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes Sulex any money the Client shall indemnify Sulex from and against all costs and disbursements incurred by Sulex in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Sulex’ contract default fee, and bank dishonour fees).
Further to any other rights or remedies Sulex may have under this contract, if a Client has made payment to Sulex, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Sulex under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
Without prejudice to Sulex’ other remedies at law Sulex shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Sulex shall, whether or not due for payment, become immediately payable if:
any money payable to Sulex becomes overdue, or in Sulex’ opinion the Client will be unable to make a payment when it falls due;
the Client has exceeded any applicable credit limit provided by Sulex;
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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Without prejudice to any other remedies Sulex may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Sulex may suspend or terminate the supply of Goods to the Client. Sulex will not be liable to the Client for any loss or damage the Client suffers because Sulex has exercised its rights under this clause.
Sulex 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 Sulex shall repay to the Client any money paid by the Client for the Goods. Sulex shall not be liable for any loss or damage whatsoever arising from such cancellation.
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 Sulex as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
17. Privacy Act 1988
The Client agrees for Sulex to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Sulex.
The Client agrees that Sulex may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
to assess an application by the Client; and/or
to notify other credit providers of a default by the Client; and/or
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
to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
The Client consents to Sulex being given a consumer credit report to collect overdue payment on commercial credit.
The Client agrees that personal credit information provided may be used and retained by Sulex for the following purposes (and for other agreed purposes or required by):
the provision of Goods; and/or
analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
enabling the collection of amounts outstanding in relation to the Goods.
Sulex may give information about the Client to a CRB for the following purposes:
to obtain a consumer credit report;
allow the CRB to create or maintain a credit information file about the Client including credit history.
The information given to the CRB may include:
personal information as outlined in 1 above;
name of the credit provider and that Sulex is a current credit provider to the Client;
whether the credit provider is a licensee;
type of consumer credit;
details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Sulex has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
information that, in the opinion of Sulex, the Client has committed a serious credit infringement;
advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Client shall have the right to request (by e-mail) from Sulex:
a copy of the information about the Client retained by Sulex and the right to request that Sulex correct any incorrect information; and
that Sulex does not disclose any personal information about the Client for the purpose of direct marketing.
Sulex will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
The Client can make a privacy complaint by contacting Sulex via e-mail. Sulex 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 Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
18. Compliance with Laws
The Client and Sulex 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.
The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
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.
If during the course of installation when the Services are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by Sulex, then Sulex shall notify the Client immediately. The power, if isolated, will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations. The Client accepts and agrees that any costs associated with the rectification Services including any Goods and labour shall be to the Client’s account.
Any live services or services undertaken near live conductors where it is safe to do so shall be dealt with in accordance with Australian and New Zealand Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and Statutory Acts and Work Place Regulations”. Sulex’ live services procedures are designed to eliminate risk of injury to Sulex’ employees, damage to the Client’s installations and unexpected power disconnections. It may in some cases require disconnection and isolation of the installation to undertake such Services for which additional charges may be applicable. This shall be invoiced in accordance with clause 2.
19. Building and Construction Industry Security of Payments Act 2002
At Sulex’ sole discretion, if there any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 2002 may apply.
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2002 of Victoria, except to the extent permitted by the Act where applicable.
20. Service of Notices
Any written notice given under this contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this contract;
by sending it by registered post to the address of the other party as stated in this contract;
if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
if sent by email to the other party’s last known email address.
Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Sulex may have notice of the Trust, the Client covenants with Sulex as follows:
the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
the Client will not without consent in writing of Sulex (Sulex will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
the removal, replacement or retirement of the Client as trustee of the Trust;
any alteration to or variation of the terms of the Trust;
any advancement or distribution of capital of the Trust; or
any resettlement of the trust property.
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’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.
These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which Sulex has its principal place of business, and are subject to the jurisdiction of the courts in Victoria.
Subject to clause 13, Sulex 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 Sulex of these terms and conditions (alternatively Sulex’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
Sulex may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
The Client cannot licence or assign without the written approval of Sulex.
Sulex may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Sulex’ sub-contractors without the authority of Sulex.
The Client agrees that Sulex may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Sulex to provide Goods to the Client.
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.
Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.