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Terms & Conditions

APPLICATION OF THESE TERMS AND CONDITIONS

In this Agreement, “the Contractor” is Devil Electrical Tasmania Pty Ltd  ABN : 70 666 756 921 trading as Devil Electrical Tasmania, its successors and  assigns or any person acting on behalf of and with the authority of  Devil Electrical Tasmania Pty Ltd; “the Customer” is the person or entity  requesting goods and services from the Contractor and named as the Customer on the Contractor’s quote, Customer information form, and other  Customer paperwork; “Goods” means all goods sold, leased, rented,  consigned, bailed or otherwise made available to the Customer by the  Contractor including but not limited to electrical equipment and associated  components; “Site” means the place where the Contractor’s services will be  carried out; and “Services” mean the Contractor’s performance of electrical  work and associated services.

2

QUOTES

2.1 Contractor’s Quote  

The Contractor shall give the Customer a quote specifying the Goods and Services required in order to fulfill the Customer’s instructions and a cost estimate for such Goods and Services.  

2.2 Acceptance by the Customer  

Where the Contractor has given the Customer a quote: 

a) the Customer shall accept the quote by responding in writing they are happy to go ahead with works

b) quotes are valid for fourteen (14) days only unless an extension  has been authorised by the Contractor; and 

c) the Customer warrants that it has not relied on any representation by the Contractor other than as supplied in writing in the quote.

 

2.3 Contractor May Revise Quote  

The Contractor may amend a quote, if not accepted within fourteen (14) days  from the date of the quote, to take into account any rise or fall in the cost  of the Goods and Services as quoted and the Contractor shall notify the  Customer of such amendment as soon as practicable thereafter. The  Contractor will not be obliged to commence the Services until such time as the Customer agrees to the amendment of the quote. 

2.4 Pricing 

If there is any error or omission in the Quote, Devil Electrical Tasmania reserves the right to change the contract sum on the Quote. This clause  applies even if the Quote has been accepted by the customer. Prices quotes are subject to final costing assessment by Devil Electrical Tasmania.

2.5 Products & Works 

If any products and works specified within this quotation are unavailable at the time of works being carried out, Devil Electrical Tasmania in its  absolute discretion may substitute a reasonable alternative.  

3

CANCELLATION

The Customer shall reimburse the Contractor for any costs, losses or  expenses incurred by the Contractor should the Customer cancel an  accepted quote. The time for payment of such cancellation shall be seven (7) days from the date of the Contractor’s tax invoice. 

4

WORK IN PROGRESS  

The Customer shall provide exclusive Site access for the Contractor to  complete any necessary work. Any interruptions due to no Site access or  work by other trades or the Customer causing down-time may be billed at  the Contractor’s hourly rate.

5

UNFORSEEN CIRCUMSTANCES/PRIOR WORK 

The Contractor shall NOT be liable for any problems with the Site due to  another contractor’s prior work or latent conditions which are only revealed  when installing the Goods. The Contractor will carry out any work needed  to fix any such problem if it is considered necessary for satisfactory  installation of the Goods. Any additional work necessary due to these circumstances is a variation and subject to Clause 9. If a price is not  agreed, the charge will be the actual cost plus another twenty percent  (20%) for the work. 

6

SERVICES BELOW THE GROUND 

The Customer must clearly mark the exact location and identify all services  above and below the ground that the Customer initiated at the Site,  including but not limited to drains, pipes, sewers, mains and telephone and  data cables, to enable the Contractor to prevent damage to all such  services. Should the Customer fail to provide the Contractor with the  location of services the Customer has initiated, then the Customer shall  indemnify the Contractor from any claim for costs, expenses or losses. 

7

‘DO AND CHARGE’ 

The hourly rate for ‘Do and Charge’ work may change should the Contractor  experience latent conditions or obstacles requiring the hire of special  equipment to complete the work. Should the ‘Do and Charge’ work prove to  be more substantial than first envisaged, then the Contractor reserves the  right to raise a quote for the work. Before any further work is performed by  the Contractor the Customer must accept the quote in a manner as specified in clause 2.2.  

8

CONTRACTOR’S TRADING HOURS 

The Contractor’s normal trading hours are 7am to 3.30pm Monday to Friday. Work performed (at the Customer’s request) outside those hours or  on a public holiday will be at the Contractor’s discretion and will be subject  to a surcharge. 

9

VARIATIONS 

9.1 All requests for variations by the Customer or the Customer’s Agent  must be made direct to the Contractor’s office during normal business hours (7am to 3.30pm). The Contractor will charge the current office administration fee plus $150 ex GST irrespective as to the variation being  approved or not approved.  

9.2 The Customer shall indemnify the Contractor from any additional cost  incurred by the Contractor should the Customer increase the scope of the  Works and/or Goods to be provided. Proof that the Customer can afford the  variation may be requested. 

9.3 If a response to a variation requested by the Contractor has not been  received from the Customer within two (2) business days, the Contractor  will carry out the Works described as part of its Scope of Works. Such variations may result in additional charges to the original Quote/Contract.

9.4 The Customer agrees to indemnify the Contractor from hold up and lost building time and any costs and expenses due to variation work requested or agreed to by the Customer.  

9.5 The Customer agrees to make no claim against the Contractor for liquidated damages related to delays due to variations that were requested by the Customer.  

9.6 Payment terms for variations shall be seven (7) days from date of invoice. Variations within a period subject to a progress payment shall be  payable at that time and no later.  

10

PAYMENT AND DEFAULT 

10.1 Time for Payment  

Unless otherwise agreed in writing the Contractor’s payment terms are strictly seven (7) days from the date of the Contractor’s tax invoice.

 

10.2 Deposit  

The Contractor may require a deposit from the Customer and the Customer acknowledges the Contractor is under no obligation to undertake any work as requested by the Customer until the deposit is received by the Contractor in full and when all details pertaining to contract are finalised. In the event of default as to payment owing to the Contractor on the part of the Customer, the Contractor shall be entitled to forfeit the deposit and claim any profit or margin contemplated by or allowed for in the contract in addition to any remedy available to the Contractor at law or in equity.  

10.3 Payment Claims 

The Contractor shall make any payment claims in accordance with The  Building and Construction Industry Payments Act 2004. The Customer must  respond appropriately and within the time specified in the Act.

 

10.4 Payment Plan 

From time to time the Contractor may offer Customers a payment plan,  spreading payment over a specified period with reoccurring payments. A  formal Payment Plan Agreement would need to be entered into and such an agreement would include the Contractor’s Terms and Conditions of Trade. 

10.5 Progress Payments  

When agreed progress payments are not honoured by the Customer, the  Contractor reserves the right to halt the Services until such time as the outstanding payment is forthcoming. In addition, clauses 10.6, 10.7 and 10.8 may apply. 

10.6 Administration Fee 

The Contractor reserves the right to charge a monthly fee of twenty-five dollars ($25) for any accounts not paid within the Contractor’s agreed payment terms. 

10.7 Interest  

The Contractor may charge interest at fifteen percent (15%) per annum calculated on a daily basis on amounts not paid within the Contractor’s  payment terms. 

10.8 Damages 

The Customer must pay to the Contractor any costs, expenses or losses incurred by the Contractor as a result of the Customer’s failure to pay to  the Contractor all sums outstanding as owed by the Customer to the  Contractor including without limiting the generality of the forgoing any debt  collection and legal costs incurred in enforcing payment on a solicitor and  own client basis. 

11

RETENTION OF TITLE  

11.1 Title  

Notwithstanding the delivery of the Goods or their installation, title in any  particular Goods shall remain with the Contractor regardless of whether the  Goods are on-sold by the Customer until the Customer has paid and  discharged any and all monies owing pursuant to any invoice issued by the  Contractor for the Goods, including all applicable GST and other taxes,  levies and duties. Where the Goods have been on-sold by the Customer, the Customer will be taken to hold the proceeds of sale of such Goods upon  trust for the Contractor and to account to the Contractor for these proceeds. Any payment made by or on behalf of the Customer which is  later avoided by the application of any Statutory Provisions shall be  deemed not to discharge the Contractor’s title in the Goods nor the  Customer’s indebtedness to the Contractor and, in such an event, the  parties are to be restored to the rights which each respectively would have  had if the payment had not been made.

 

11.2 Bailment 

The Customer acknowledges that it is in possession of the Goods solely as  Bailee until payment of all invoices for the Goods is made pursuant to  clause 11.1 and until that time the Customer must not encumber or  otherwise charge the Goods and the Customer shall be fully responsible for  any loss or damage to the Goods whatsoever and howsoever caused  following delivery of the Goods.‍

11.3 Repossession  

The Customer hereby irrevocably grants to the Contractor the right, at its sole discretion, to remove or repossess any Goods from the Customer and sell or dispose of them, and the Contractor shall not be liable to the Customer or any person claiming through the Customer and the Contractor  shall be entitled to retain the proceeds of any Goods sold and apply same  towards the Customer’s indebtedness to the Contractor. If the Customer  commits an act of bankruptcy, enters into any form of administration or  liquidation, makes any composition or arrangement with its creditors,  ceases to carry on business or breaches any fundamental clause of this  agreement, then the Contractor may, without prejudice to any other  remedies it may have, repossess any Goods delivered to the Customer on  any account which has not been paid in accordance with the Terms and  Conditions herein and commence proceedings to recover the balance of any  monies owing the Contractor by the Customer. 

12

PERSONAL PROPERTY SECURITIES ACT (PPSA) 

12.1 

In this clause, the following words have the respective meanings  given to them in the PPSA: Financing Statement, Financing Change  Statement, Proceeds, Register, Security Agreement, Security Interest and  Verification Statement. In this clause “the Customer” is the grantor and  “the Contractor” is the secured party, as defined in the PPSA. 

12.2 The Customer acknowledges and agrees: 

a) that these Terms and Conditions constitute a Security  Agreement that creates a Security Interest in all Goods (and  Proceeds): 

(i) previously supplied by the Contractor to the  Customer; 

(ii) to be supplied in the future by the Contractor to  the Customer; 

b) that the Security Interest created by these Terms and Conditions  is a continuing Security Interest in all Goods (supplied now or in  the future by the Contractor to the Customer) and Proceeds,  which will operate (despite any intervening payment or  settlement of account) until the Contractor has signed a release;  and 

c) to waive its rights under section 157 of the PPSA and the  following subsections of section 115 of the PPSA, which will not  apply to the Security Agreement created by these Terms and  Conditions:95, 118, 121(4), 130, 132(4), 135, 143. 

12.3 The Customer undertakes to: 

a) keep all Goods free of any charge, lien or Security Interest except  as created under these Terms and Conditions and not otherwise  deal with the Goods in a way that may prejudice any rights of the  Contractor under these Terms and Conditions or the PPSA; 

b) sign any further documents and provide any further information  (which must be complete, accurate and up-to-date in all  respects) that designer may require to: 

(i) register a Financing Statement or Financing  Change Statement in relation to a Security  

Interest on the Register; 

(ii) register any other document required to be  registered by the PPSA; or 

(iii) correct a defect in a statement referred to in  clause 12.3(b) (i) or 12.3(b) (ii); 

c) indemnify, and upon demand reimburse the Contractor for all  fees (including actual legal fees on a solicitor/own Customer basis), costs, disbursements and expenses in: 

(i) registering and maintaining a Financing Statement or Financing Change Statement on the Register or  

releasing any Goods charged thereby; and 

(ii) enforcing or attempting to enforce the Security  Interest created by these Terms and Conditions. 

d) not register, or allow to be registered, a Financing Statement or a  Financing Change Statement in respect of the Goods, or Proceeds  in favour of a third party, without the prior written consent of the  Contractor; and 

e) immediately advise the Contractor of any material change in its  business details (including, but not limited to, it’s trading name,  address, fax number) or business practices. 

13

SCHEDULE OF WARRANTIES 

13.1 To the extent required by the Australian Consumer Law (“ACL”), the  Contractor warrants that:  

a) the Works will be carried out in accordance with all relevant laws  and legal requirements in an appropriate and skilful way, in  accordance with the plans and specifications (where relevant)  using Goods that are good and suitable for the purpose for which  they are intended to be used and that, unless otherwise stated in  the Contract, those Goods will be new; and 

b) each provisional sum item allowance, if calculated by the  Contractor, has been calculated with reasonable skill and care,  having regard to all the information reasonably available when  the Contract is entered into (including information about the  nature and location of the Site). 

13.2 

The Contractor warrants that the Works are, and that Goods supplied  are, free of defects at the time of completion and/or installation.  

 

13.3 

If the Contractor be directed to reuse any materials or components  from the Site or elsewhere, then the Contractor will not accept any  responsibility for the aesthetic finishes, structural entity or any warranties  whatsoever attached to those materials or components. The Customer shall  indemnify the Contractor from any costs, losses or expenses associated with  the rectification or resupply of such materials or components.  

 

13.4 Subject to the ACL, the Contractor does not have to fix any problem  caused by misuse, abuse, wear and tear, damage caused by vermin, lizards  and insects, or normal shrinkage or movement, minor colour variation in  

natural products, work done by others or any defects in Goods supplied by  the Customer. 

14

LIABILITY 

14.1 Non-excludable Rights  

The parties acknowledge that, under the Australian Consumer Law, certain  conditions and warranties may be implied in these Terms and Conditions  and there are rights and remedies conferred on the Customer in relation to  the provision of the Goods and Services which cannot be excluded,  restricted or modified by the contract (“Non-excludable Rights”). 

14.2 Disclaimer of Liability  

The Contractor disclaims all conditions and warranties expressed or  implied, and all rights and remedies conferred on the Customer, by statute,  the common law, equity, trade, custom or usage or otherwise and all those  conditions and warranties and all those rights and remedies are excluded  other than any Non-excludable Rights. To the extent permitted by law, the  liability of the Contractor for a breach of a Non-Excludable Right is limited,  at the Contractor’s option, to the supplying of the Goods and Services again  or payment of the cost of having the Goods and Services supplied again. 

14.3 Indirect Losses  

Notwithstanding any other provision of these Terms and Conditions, the  Contractor is in no circumstances (whatever the cause) liable in contract,  tort including without limitation, negligence or breach of statutory duty or  otherwise to compensate the Customer for: 

a) any increased costs or expenses; 

b) any loss of profit, revenue, business, contracts or anticipated  savings; 

c) loss or expense resulting from a claim by a third party; or d) any special, indirect or consequential loss or damage of any  nature whatsoever caused by the Contractor’s failure to  complete or delay in completing the Services within a reasonable  time. 

14.4 Force Majeure 

The Contractor will have no liability to the Customer in relation to any loss,  damage or expense caused by the Contractor’s failure to complete the  Services or to deliver the Goods as a result of fire, flood, tempest,  earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown,  war, the inability of the Contractor’s normal suppliers to supply products or  any other matter beyond the Contractor’s control. 

15

PRIVACY 

15.1

The Customer authorises the Contractor to collect, retain, record, use  and disclose commercial and/or consumer information about the Customer,  in accordance with the Privacy Act 1988 and the Privacy Principles outlined  in the Privacy Amendment Act 2012, to persons and/or legal entities who  are a solicitor or any other professional consultant engaged by the  Contractor, a debt collector, credit reporting body and/or any other  individual or organisation which maintains credit references and/or default  listings. This information may be given before, during or after the provision of credit to the Customer. 

15.2

Subject to the Privacy Principles outlined in the Privacy Amendment  Act 2012, the Customer further authorises the Contractor to collect, retain,  record, use and disclose personal information for the marketing of Goods  and Services provided by the Contractor. 

16

ARBITRATION AND MEDIATION 

Any dispute or difference between the Customer and the Contractor may be  notified by a party to the other party and the parties shall firstly meet to  negotiate, in good faith, resolution of the dispute and secondly, if  negotiation fails to achieve a resolution of the dispute within five (5)  working days of the notification of the dispute, attend mediation,  administered in accordance with procedures as set out by the Institute of  Arbitrators and Mediators Australia, provided that this provision shall not  prevent the Contractor from instituting legal action at any time to recover  monies owing by the Customer to the Contractor. 

17

SECURITY AND CHARGE 

The Customer hereby charges all property, both equitable and legal,  present or future of the Customer in respect of any monies that may be  owing by the Customer under these Terms and Conditions or otherwise and  hereby authorises the Contractor or its solicitors to execute any consent  form as its attorney for the purpose of registering a caveat over any real  property owned by the Customer at any time. 

18

GENERAL MATTERS

18.1 Non-Waiver 

Failure by the Contractor to enforce or delay in enforcing any right or  provision of these Terms and Conditions will not constitute a waiver of such  right or provision unless acknowledged by in writing. 

18.2 Amendments to these Terms and Conditions 

The Contractor reserves the right to vary these Terms and Conditions at  any time with notice in writing to the Customer. Any subsequent signed  quote or work order will represent the Customer’s agreement to these  Terms and Conditions as amended. 

18.3 Severability  

Any provision in these Terms and Conditions which is invalid or  unenforceable in any jurisdiction must be read down for the purposes of  that jurisdiction, if possible, so as to be valid and enforceable. If that  provision cannot be read down then it is capable of being severed to the  extent of the invalidity or unenforceability without affecting the remaining  provisions of these Terms and Conditions or affecting the validity or  enforceability of that provision in any other jurisdiction. 

18.4 Governing Law and Jurisdiction 

These Terms and Conditions are governed by the laws of the State of  Queensland and the laws of the Commonwealth of Australia which are in  force in Queensland. All disputes arising between the Customer and the Contractor will be submitted to a court of competent jurisdiction in  Queensland selected by the Contractor and such court shall possess  territorial jurisdiction to hear and determine such proceedings. 

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