Whywait Plumbing Pty Ltd Terms & Conditions of Trade

The following terms of trade include legal definitions and terminology to protect both our clients from non-compliant installation or defective products and ourselves from clients who deliberately attempt to avoid paying for work completed by us. They are applicable to all work completed by Whywait Plumbing Pty Ltd to the value of $50000.00 exclusive of GST. Plumbing projects exceeding this amount may have additional or customised terms of trade as required and agreed for.

Definitions

  1. “Whywait” shall mean Whywait Plumbing Pty Ltd T/A Whywait Plumbing Services, its successors and assigns or any person acting on behalf of and with the authority of Whywait Plumbing Pty Ltd.
  2. “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other forms as provided by Whywait to the Client.
  3. “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
  4. “Goods” shall mean all Goods supplied by Whywait to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Whywait to the Client.
  5. “Services” shall mean all Services supplied by Whywait to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
  6. “Price” shall mean the Price payable for the Goods as agreed between Whywait and the Client in accordance with clause 4 of this contract.

Acceptance

  1. Any instructions received by Whywait from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Whywait shall constitute acceptance of the terms and conditions contained herein.
  2. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
  3. Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Whywait.
  4. The Client shall give Whywait not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, or business practice). The Client shall be liable for any loss incurred by Whywait as a result of the Client’s failure to comply with this clause.
  5. Goods are supplied by Whywait only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

Price and Payment

  1. At Whywait’s sole discretion the Price shall be either:
  2. as indicated on invoices provided by Whywait to the Client in respect of Goods supplied; or
  3. Whywait’s quoted Price (subject to clause 4) which shall be binding upon Whywait provided that the Client shall accept Whywait’s quotation in writing within thirty (30) days.
  4. Whywait reserves the right to change the Price in the event of a variation to Whywait’s quotation.
  5. Whywait may submit detailed progress payment claims in accordance with Whywait’s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
  6. At Whywait’s sole discretion a deposit may be required.
  7. At Whywait’s sole discretion payment shall be due on delivery of the Goods, or payment for approved Clients shall be made by instalments in accordance with Whywait’s payment schedule.
  8. Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
  9. Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Client and Whywait.
  10. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

Delivery of Goods

  1. At Whywait’s sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Whywait or Whywait’s nominated carrier).
  2. At Whywait’s sole discretion the costs of delivery are included in the price.
  3. Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
  4. Whywait may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
  5. The failure of Whywait to deliver shall not entitle either party to treat this contract as repudiated.
  6. Whywait shall not be liable for any loss or damage whatsoever due to failure by Whywait to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Whywait.

Risk

  1. If Whywait retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
  2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Whywait is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Whywait is sufficient evidence of Whywait’s rights to receive the insurance proceeds without the need for any person dealing with Whywait to make further enquiries.
  3. Where the Client expressly requests Whywait to leave Goods outside Whywait’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
  4. The Client acknowledges and agrees that the presence of plant/tree root growth and/or blockages generally indicates damaged pipes. Accordingly, the Client agrees that these pipes cannot be fixed by simply removing plant/tree root growth or cleaning the drain, therefore no warranty is provided against this situation arising again in the future and in respect of any work carried out in relation thereto.

Access

  1. The Client shall ensure that Whywait has clear and free access to the worksite at all times to enable them to undertake the works. Whywait 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 Whywait

Underground Locations

  1. Prior to Whywait commencing any work the Client must advise Whywait of the precise location of all underground services on the site and clearly mark the same. Additionally, the Client can request Whywait to access Dial Before You Dig information to assist in the location of any services in the vicinity of the property.
  2. The underground mains & 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, NBN infrastructure, oil pumping mains, and any other services that may be on site.
  3. Whilst Whywait will take all care to avoid damage to any underground services the Client agrees to indemnify Whywait 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 clause 1 and 2.

Title

  1. Whywait and the Client agree that ownership of the Goods shall not pass until:
  2. the Client has paid Whywait all amounts owing for the particular Goods; and
  3. the Client has met all other obligations due by the Client to Whywait in respect of all contracts between Whywait and the Client.
  4. Receipt by Whywait 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 and until then Whywait’s ownership or rights in respect of the Goods shall continue.
  5. It is further agreed that:
  6. where practicable the Goods shall be kept separate and identifiable until Whywait shall have received payment and all other obligations of the Client are met; and
  7. until such time as ownership of the Goods shall pass from Whywait to the Client Whywait may give notice in writing to the Client to return the Goods or any of them to Whywait. Upon such notice, the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
  8. Whywait shall have the right of stopping the Goods in transit whether or not delivery has been made; and
  9. if the Client fails to return the Goods to Whywait then Whywait or Whywait’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods; and
  10. the Client is only a bailee of the Goods and until such time as Whywait has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Whywait for the Goods, on trust for Whywait; and
  11. the Client shall not deal with the money of Whywait in any way which may be adverse to Whywait; and
  12. the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Whywait; and
  13. Whywait can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
  14. until such time that ownership in the Goods passes to the Client if the Goods are converted into other products, the parties agree that Whywait will be the owner of the end products.

Defects

  1. The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery notify Whywait of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.
  2. The Client shall afford Whywait an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage.
  3. For defective Goods, which Whywait has agreed in writing that the Client is entitled to reject, Whywait’s liability is limited to either (at Whywait’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Fair Trading Acts of the relevant state and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
  4. Goods will not be accepted for return other than in accordance with Clause 1 above.

Warranty

  1. Subject to the conditions of warranty set out in clauses 2 to 10 below Whywait warrants that if any defect in any workmanship of Whywait becomes apparent and is reported to Whywait within five (5) years of the date of delivery then Whywait will either (at Whywait’s sole discretion) replace or remedy the workmanship.
  2. The conditions applicable to the warranty given by clause 1 are:
  3. the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
  4. failure on the part of the Client to properly maintain any Goods; or
  5. failure on the part of the Client to follow any instructions or guidelines provided by Whywait; or
  6. any use of any Goods otherwise than for any application specified on a quote or order form; or
  7. the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably  prudent operator or user; or
  8. fair wear and tear, any accident or act of God.
  9. the warranty shall cease and Whywait shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is interfered with, repaired, altered or overhauled without Whywait’s consent.
  10. in respect of all claims, Whywait shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
  11. For Goods not manufactured by Whywait, the warranty shall be the current warranty provided by the manufacturer of the Goods. Whywait 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.

Default and Consequences of Default

  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 per cent (2.0%) per calendar month (and at Whywait’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
  2. In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Whywait.
  3. If the Client defaults in payment of any invoice when due, the Client shall indemnify Whywait from and against all costs and disbursements incurred by Whywait in pursuing the debt including legal costs on a solicitor and own client basis and Whywait’s collection agency costs.
  4. Without prejudice to any other remedies, Whywait may have, if at any time the Client is in breach of any obligation (including those relating to payment) Whywait may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Whywait will not be liable to the Client for any loss or damage the Client suffers because Whywait has exercised its rights under this clause.
  5. If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten per cent (10%) of the amount overdue (up to a maximum of nine hundred dollars ($900.00)) shall be levied for administration fees which sum shall become immediately due and payable.
  6. Without prejudice to Whywait’s other remedies at law Whywait shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Whywait shall, whether or not due for payment, become immediately payable in the event that:
  7. any money payable to Whywait becomes overdue, or in Whywait’s opinion the Client will be unable to meet its payments as they fall due; or
  8. 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
  9. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

Security and Charge

  1. Despite anything to the contrary contained herein or any other rights which Whywait may have howsoever:
  2. where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Whywait or Whywait’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Whywait (or Whywait’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
  3. should Whywait elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Whywait from and against all Whywait’s costs and disbursements including legal costs on a solicitor and own client basis.
  4. the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Whywait or Whywait’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 1 above.

Personal Property Securities Act 2009 (“PPSA”)

  1. In this clause financing statement, financing change statement, security agreement, and security interest have the meaning given to it by the PPSA.
  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 Materials and/or collateral (account) – being a monetary obligation of the Client to Whywait for Works – that have previously been supplied and that will be supplied in the future by Whywait to the client.
  3. The Client undertakes to undertake the following:
  4. 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 Whywait may reasonably require to:
  5. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; 
  6. register any other document required to be registered by the PPSA; or
  7. correct a defect in a statement referred to in clause 2;
  8. indemnify, and upon demand reimburse, Whywait 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 Materials charged thereby;
  9. not register a financing change statement in respect of a security interest without the prior written consent of Whywait; 
  10. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of Whywait;
  11. immediately advise Whywait of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
  12. Whywait 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.
  13. The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
  14. The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
  15. Unless otherwise agreed to in writing by Whywait, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
  16. The Client shall unconditionally ratify any actions taken by Whywait under clauses 2 to 5 above.
  17. 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.

Cancellation

  1. Whywait 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, Whywait shall repay to the Client any sums paid in respect of the Price. Whywait shall not be liable for any loss or damage whatsoever arising from such cancellation.
  2. In the event that the Client cancels delivery of Goods, the Client shall be liable for any loss incurred by Whywait (including, but not limited to, any loss of profits) up to the time of cancellation.
  3. Cancellation of orders for Goods made to the Client’s specifications or non-stock list items will definitely not be accepted, once production has commenced.

Privacy Act of 1988

  1. The Client and/or the Guarantor/s (herein referred to as the Client) agree for Whywait to obtain from a credit-reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Whywait.
  2. The Client agrees that Whywait 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:
  3. to assess an application by the Client; and/or
  4. to notify other credit providers of a default by the Client; and/or
  5. 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
  6. to assess the creditworthiness of the Client.

Credit History Reporting Under The Privacy Act of 1988

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.

  1. The Client consents to Whywait being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
  2. The Client agrees that personal credit information provided may be used and retained by Whywait for the following purposes (and for other purposes as shall be agreed between the Client and Whywait or required by law from time to time):
  3. the provision of Goods; and/or
  4. the marketing of Goods by Whywait, its agents or distributors; and/or
  5. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
  6. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
  7. enabling the daily operation of the Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
  8. Whywait may give information about the Client to a credit reporting agency for the following purposes:
  9. to obtain a consumer credit report about the Client;
  10. allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
  11. The information given to the credit reporting agency may include:
  12. personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
  13. details concerning the Client’s application for credit or commercial credit and the amount requested;
  14. advice that Whywait is a current credit provider to the Client;
  15. the advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than thirty (30) days, and for which debt collection action has been started;
  16. 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;
  17. information that, in the opinion of Whywait, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
  18. advice that cheques drawn by the Client for one hundred dollars ($100) or more have been dishonoured more than once;
  19. that credit provided to the Client by Whywait has been paid or otherwise discharged.

Building Industry Fairness (Security of Payment) Act 2017

  1. At Whywait’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services, then the provisions of the Building Industry Fairness (Security of Payment) Act 2017 may apply.
  2. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building Industry Fairness (Security of Payment) Act 2017, except to the extent permitted by the Act where applicable.

General

  1. 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.
  2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
  3. Whywait 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 Whywait of these terms and conditions.
  4. In the event of any breach of this contract by Whywait, the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the goods.
  5. 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 Whywait nor to withhold payment of any invoice because part of that invoice is in dispute.
  6. Whywait may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
  7. The Client agrees that Whywait may review these terms and conditions at any time. If following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Whywait notifies the Client of such change.
  8. 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 events beyond the reasonable control of either party.
  9. The failure by Whywait to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Whywait’s right to enforce that provision subsequently.

Queensland Building and Construction Commission (QBCC) Form 4

  1. Various plumbing works undertaken require that Whywait lodge a Form 4 with the QBCC, as per Queensland State Regulations. If your invoice states that form 4 has been lodged please note that it only covers works noted in this invoice.
  2. If works are inspected and other plumbing issues are found outside our works, these items will need to be rectified at extra cost to the client. If our works as described in this invoice are found to have an issue, we will rectify at no extra cost to the client.

Gas Work

  1. When undertaking service work or quoting on works to an existing gas line or service, it is assumed that the existing gas service is compliant and has no leaks.
  2. If Whywait undertakes the works, as per regulations, we are required to test the entire gas service/line after new works are finalised. If a portion of the gas service that has not been part of the quoted works is found to be defective or leaking, it will need to be repaired at an additional cost to the client.

Intellectual Property

  1. Where Whywait has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Whywait, and shall only be used by the Client at Whywait’s discretion.
  2. The Client warrants that all designs, specifications or instructions given to Whywait will not cause Whywait to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Whywait against any action taken by a third party against Whywait in respect of any such infringement.
  3. The Client agrees that Whywait may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Materials which Whywait has created for the Client.
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