Terms & Conditions
STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES AND GOODS
1. Definitions and Interpretations
In these Conditions and elsewhere in the Contract, unless a contrary intention appears the following shall mean:
Client means the party described in the Contract Particulars or if no description has been provided, the entry to which HSR is providing Services and/or Goods.
Completion Date means the date if specified in the Contract or any extension thereof which HSR must deliver the Goods and/or complete the Services.
Conditions means these standard terms and conditions.
Contract means the agreement between the Client and HSR evidenced by the Conditions, the Contract Particulars and/or quotation and/or invoice, and all other documents incorporated by written reference into the Contract. The Conditions take precedence over all other documents.
Contract Price means the total price submitted by HSR either as a lump sum fixed price, schedule of rates, cost plus or a combination of these as detailed in the of the Contract.
Force Majeure means act of God, act of omission of government, war, blockade, embargo, hostilities, fire, earthquake, flood, explosion, accident at sea, inclement weather conditions, industrial disputes (except where restricted to employees of HSR), sabotage or commotion, act of omission of the Client, or by any cause (whether similar or not to any of the above events), beyond the reasonable control of HSR.
Goods means the goods, products, materials or equipment supplied in accordance with this Contract and specified in the Contract Particulars and/or quotation and/or invoice.
Intellectual Property means any intellectual property whether protected by statute at common law or in equity, including any patent, invention, copyright or design right (whether or not registrable), in any design, specification, process, technique, software, know-how, trade secret, technical information, financial information, business method and confidential information.
PPSA means the Personal Property Securities Act 2009 (Cth)
HSR means Harley and Sons Pty Ltd ACN 621 532 152 and Harley and Sons Roofing.
HSR Invoice means an Invoice setting out the Services and/or Goods supplied to the Client by HSR and claiming payment for the provision of those Services and/or Goods.
Services means all the services HSR has agreed to perform for the Client under its offer and specified in the Contract Particulars and/or HSR Invoice.
Site means the location where the Services are to be performed.
Works means the scope of works being tendered for which is inclusive of the Goods and/or Services.
2. Validity period
Our quotation is open for acceptance for a period of thirty (30) days from its date or such time as the parties agree in writing.
3. Deemed Acceptance
In the absence of written acknowledgement, the performance of any of the Works by HSR will be deemed acceptance of the Contract
Unless otherwise stated, the Contract Price quoted is net and exclusive of Goods and Services Tax (GST)
Except as otherwise agreed by HSR in writing, the Client, shall pay all invoiced amounts in Australian dollars, without right of set off, within thirty (30) days from the date of the HSR Invoice in accordance with and in the manner set out in the quotation.
If the Client fails to pay HSR the full amount stated in the HSR Invoice in accordance with this clause, then HSR will charge interest on the amount paid by the Client at a rate of 2% over its commercial bank overdraft rate.
6. Access to Site
The Client must provide HSR access to the Site and possession of a sufficient portion of the Site to enable HSR to properly perform the Works without interference. HSR will be entitled to claim an extension of time and costs incurred as a result of any delay caused due to any interference of the Client or others on Site and/or delay in access to the Site.
7. Latent Conditions
Latent Conditions are physical conditions affecting the Site including artificial things but excluding weather conditions which differ materially from the physical conditions which HRS reasonably anticipated at the time of submitting its offer.
HSR will be entitled to claim an extension of time and reasonable costs directly incurred as a result of a Latent Condition.
8. Limitation of Liability
Notwithstanding any other provision of this Contract and to the full extent permitted at law, the total liability of HSR to the Client arising out of or in connection with this Contract for all loss, damage, cost or expense suffered or incurred whether in contract or tort (including negligence), in equity, in restitution, by way of warranty or indemnity or under statute shall be limited to no more than fifty percent (50%) of the Contract Price.
9. Consequential Loss
Notwithstanding any other provision of this Contract and to the full extent permitted at law, neither party is liable for any indirect, special, contingent or consequential type losses or damages which includes but is not limited to loss of actual or anticipated profits, loss of opportunity, loss of goodwill or loss of revenue.
The Client shall reimburse HSR all reasonable costs including but not limited to overheads incurred by HSR for any delays except for delays caused by HSR itself.
11. Returned Goods
HRS is not under any duty to accept Goods returned by the Client.
HSR reserves the right to make a reasonable charge for storage of the Goods or any component of the Client to be used in manufacture or supply of the Goods, if delivery instructions are not provided by the Client within 14 days of a request by HSR.
13. Title and Risk
Title in the Goods remains with HSR until all sums due and owing by the Client are fully paid:
13.1 to enter the Client’s premises, or the premises of any associated entity or agent of the Client where the Goods are located, without liability for trespass or any resulting damage and retake possession of the Goods; and
13.2 to keep to resell the Goods repossessed under this clause
14. Personal Properties Securities Act
14.1 In this clause 15 words and expressions which are not defined in these conditions but which have a defined meaning in the PPSA have the same meaning as in the PPSA.
14.2 The Client acknowledges that the HSR has a purchase money security interest in the Goods including, but not limited to where the Client has not paid for the Goods in full prior to delivery.
14.3 The Client acknowledges that if HSR has rights and interest in proceeds derived from the Goods such rights and interests constitute a security interest in such proceeds.
14.4 HRS may register any security interest on the PPSA register in any manner it chooses (including by registering one or more financing statements in relation to its interest in the Goods, with such expiry dates as HSR determines in its absolute discretion). The Client must provide HRS with any information it requires for the purposes of giving effect to such registration.
14.5 For the purposes of section 157(3) of the PPSA, the Client irrevocably and unconditionally waves its right to receive any notice from HRS in connection with the registration of a financing statement or a financing change statement in respect of the Goods.
14.6 If section 95 or chapter 4 of the PPSA would otherwise apply to the enforcement of any security interests then those provisions are excluded, to the extent possible.
14.7 The Client must take any steps (including provide information) HSR reasonably requires to perfect or otherwise ensure the enforceability and priority of any security interest.
14.8 Neither the Client nor HSR will disclose information of the kind described in PPSA section 275(1), unless section 257(7) of the PPSA applies.
14.9 Until HSR’s security interest (whether perfected or not) is satisfied, the Client agrees not to cause or allow a security interest of higher priority to be created in the Goods. If the Client breaches this subclause, the Client shall indemnify HSR for any cost, expense, loss or damage suffered.
The Client acknowledges and agree that any information submitted by HSR in its offer which includes but is not limited to pricing, technical specifications and other information is commercial in confidence and submitted solely for evaluation by the Client. Such information must at all times remain confidential and shall not be disclosed to any third party with HSR’s prior written consent.
Either party has the right to cancel this Contract because of any event beyond the reasonable control of either party which alters the ability of the cancelling party to fulfil the terms of this Contract.
If HSR cancels this Contract, the Client agrees and acknowledges that it will not prosecute any claim in law or in equity against HSR. The Client agrees if the Client cancels this Contract, it will pay to HSR all outstanding HSR Invoices and for all Goods and/or Services provided to the Client up to the date of cancellation and the Client indemnifies HSR against any losses incurred by HSR as a result of the termination.
17. Force Majeure
17.1 If performance by HSR or any obligation under the Contract is prevented, restricted or delayed by Force Majeure then HSR shall be excused from and shall not be liable for failure in performance to the extent of that prevention, restriction or delay and the time for performance shall be extended accordingly, subject to the terms of clause 17.2
17.2 If supply is delayed for more than four (4) months by Force Majeure and the parties have not agreed upon a revised basis for continuing the supply at the end of the delay, then either party may after that period and while the cause of non-performance still exists terminate the Contract by not less than 30 days’ notice in writing to the other party.
18.1 The Contract is governed by the laws of Victoria and the parties submit to the non-exclusive jurisdiction of those Victorian Courts.
18.2 Where applicable the Building and Construction Industry Security of Payment Act 2002 (Vic) shall apply to the contract.
18.3 Any waiver partly or whole of the terms of the Contract will be valid only if in writing and signed by HSR.
18.4 If additional terms and/or conditions are attached to, incorporated into or accompany the Client’s order, those terms and/or conditions are not accepted by HSR and do not form part of the Contract unless expressly accepted in writing or signed by an authorised representative of HSR.