Terms & Conditions

Hygrade Plumbing – Terms & Conditions of Trade

1. Definitions

1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.2 “HGP” means Brett Armstrong T/A Hygrade Plumbing, its successors and assigns or any person acting on behalf of and with the authority of Brett Armstrong T/A Hygrade Plumbing.

1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting HGP to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:

  • (a) if there is more than one Client, is a reference to each Client jointly and severally; and
  • (b) if the Client is a partnership, it shall bind each partner jointly and severally; and
  • (c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
  • (d) includes the Client’s executors, administrators, successors and permitted assigns.

1.4 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by HGP to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.5 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Works via the website.

1.7 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between HGP and the Client in accordance with clause 6 below.

1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

2. Acceptance

2.1 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 any Works.

2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

2.5 If HGP 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.

2.6 The Client acknowledges and agrees that where HGP has performed temporary repairs that:

  • (a) HGP offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
  • (b) HGP will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair required.

3. Authorised Representatives

3.1 The Client acknowledges that HGP shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to HGP, that person shall have the full authority of the Client to order any Works, Materials and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to HGP for all additional costs incurred by HGP (including HGP’s profit margin) in providing any Works, Materials or variation/s requested thereto by the Client’s duly authorised representative.

4. Errors and Omissions/strong>

4.1 The Client acknowledges and accepts that HGP shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

  • (a) resulting from an inadvertent mistake made by HGP in the formation and/or administration of this Contract; and/or
  • (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by HGP in respect of the Works.

4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of HGP; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

5. Change in Control

5.1 The Client shall give HGP 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, change of trustees, or business practice). The Client shall be liable for any loss incurred by HGP as a result of the Client’s failure to comply with this clause.

6. Price and Payment

6.1 At HGP’s sole discretion the Price shall be either:

  • (a) as indicated on invoices provided by HGP to the Client in respect of Works performed or Materials supplied; or
  • ((b) HGP’s estimated Price (subject to clause 6.2). The final price can only be ascertained upon completion of the Works. Variances in the estimated Price of more than ten percent (10%) will be subject to Client approval before proceeding with the Works; or
  • ((c) HGP’s quoted Price (subject to clause 6.2) which shall be binding upon HGP provided that the Client shall accept HGP’s quotation in writing within thirty (14) days.

6.2 HGP reserves the right to change the Price:

  • (a) if a variation to the Materials which are to be supplied is requested; or
  • (b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
  • (c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to site access, ready availability of Materials, variations in quantity or volume of Materials to be supplied, obscured site defects which require remedial work, health hazards and/or safety considerations (such as the discovery of asbestos or other toxic materials), prerequisite work by a third party not being completed, hard rock or other barriers below the surface, latent soil conditions, iron reinforcing rods in concrete, or hidden pipes and wiring, etc.) which are only discovered on commencement of the Works; or
  • ((d) in the event of increases to HGP in the cost of labour or Materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond HGP’s control.

6.3 Variations will be charged for on the basis of HGP’s quotation, and will be detailed in writing, and shown as variations on HGP’s invoice. The Client shall be required to respond to any variation submitted by HGP within ten (10) working days. Failure to do so will entitle HGP 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.

6.4 At HGP’s sole discretion a non-refundable deposit may be required.

6.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by HGP, which may be:

  • (a) on completion of the Works; or
  • (b) the date specified on any invoice or other form as being the date for payment; or
  • (c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by HGP.

6.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and HGP.

6.7 HGP may in its discretion allocate any payment received from the Client towards any invoice that HGP determines and may do so at the time of receipt or at any time afterwards. On any default by the Client HGP may re-allocate any payments previously received and allocated. In the absence of any payment allocation by HGP, payment will be deemed to be allocated in such manner as preserves the maximum value of HGP’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.

6.8 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 HGP nor to withhold payment of any invoice because part of that invoice is in dispute.

6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to HGP an amount equal to any GST HGP must pay for any supply by HGP under this or any other contract for the sale of the Materials. 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.

7. Provision of the Works

7.1 Subject to clause 7.2 it is HGP’s responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2 The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that HGP claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond HGP’s control, including but not limited to any failure by the Client to:

  • (a) make a selection; or
  • (b) have the site ready for the Works; or
  • (c) notify HGP that the site is ready.

7.3 At HGP’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.

7.4 HGP may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

7.5 Any time specified by HGP for delivery of the Works is an estimate only and HGP will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that HGP is unable to supply the Works as agreed solely due to any action or inaction of the Client, then HGP shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

8. Risk

8.1 If HGP retains ownership of the Materials under clause 12 then:

  • (a) where HGP is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either:
    1. (i) the Client or the Client’s nominated carrier takes possession of the Materials at HGP’s address; or
    2. (ii) the Materials are delivered by HGP or HGP’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address)
  • (b) where HGP is to both supply and install Materials then HGP shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.

8.2 Notwithstanding the provisions of clause 8.1 if the Client specifically requests HGP to leave Materials outside HGP’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.

8.3 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation thereof and that any plumbing connections (including, but not limited to, pipes, couplings and valves) are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos or any other toxic materials, defective or unsafe plumbing or latent or unfavourable soil conditions such as liquefaction residue, or risk) that HGP, or HGP employees, reasonably form the opinion that the Client’s premises is not safe for the Works to proceed then HGP shall be entitled to delay the provision of the Works (in accordance with clause 7.2) until HGP is satisfied that it is safe for the installation to proceed. HGP may at its sole discretion agree to bring the premises up to a standard suitable for installation to proceed but all such Works undertaken and any additional Materials supplied shall be treated as a variation (as per clause 6.2) and will be charged for in addition to the Price.

8.4 In the event asbestos or any other toxic substances are discovered at the site, that it is the Client’s responsibility to ensure the safe removal of the same. The Client further agrees to indemnify HGP against any costs incurred by HGP as a consequence of such discovery. Under no circumstances will HGP handle removal of asbestos product.

8.5 The Client acknowledges and accepts that:

  • (a) all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in HGP’s or manufacturers fact sheets, price lists or advertising material are indicative only and that they have not relied on such information; and
  • (b) prior to commencement of any Works HGP shall carry a routine soundness test of the site to ensure there are not any gas leaks in the existing pipework. In the event of such a discovery HGP where necessary will have the gas supply capped-off until the fault is found and repaired at the Client’s expense; and
  • (c) in instances where the gas supply is turned off at the meter or bottles by HGP in order to carry out the soundness test that parts within a gas appliance may fail due to not being turned off and serviced for a long period of time including, thermocouples, blocked pilot tubes, and SIT valves on pilot assemblies. Any costs associated with such an event shall be borne by the Client; and
  • (d) where HGP is requested to use drain/pipe unblocking equipment due to the presence of plant or tree root growth and/or other blockages, and HGP does not recommend the use of such equipment, due to the risk of the equipment becoming lodged or stuck, as the blockages may indicate damaged pipe work, HGP will immediately advise the Client of the same and shall provide the Client with an estimate for the full repair of the damaged pipe work, and:
  • (e) HGP may require the Client or their agent to authorise commencement of the Works in writing. If the drain/pipe unblocking equipment subsequently becomes lodged or stuck, the Client shall be responsible for the cost of repair, replacement and/or retrieval of said equipment; and
  • (f) HGP can offer no guarantee that against reoccurrence or further damage as per clause 8.5(d) or that the high-pressure hose, electric eel, plunger or equipment used will unblock the pipes and/or drain; and
  • (g) HGP is only responsible for parts that are replaced by HGP, and in the event that other parts/goods, subsequently fail, the Client agrees to indemnify HGP against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising; and
  • (h) they shall:
    1. (i) remove any furniture or personal items from the vicinity of the Works, and agrees that HGP shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause; and
    2. (ii) supply electricity, temporary lighting, water, eating and first aid facilities if so required; and
    3. (iii) be wholly responsible for:
      1. (A) animals and/or children on the worksite; and
      2. (B) the removal of rubbish (including but not limited to contaminated soil stockpiling of excess spoil) from or clean-up of the worksite.

8.6 Where the Client has supplied materials for HGP to complete the Works, the Client acknowledges that they accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. HGP shall not be responsible for any defects in the Works, any loss or damage to the Materials (or any part thereof), howsoever arising from the use of materials supplied by the Client.

8.7 Whilst HGP will take all care when performing the Works, the Client agrees to indemnify HGP against any loss or damage to the work area (including, but not limited to, damage to existing tiles and components of the Materials) unless due to the negligence of HGP.

8.8 HGP:

  • (a) shall upon installation ensure that all Materials are to be installed in a manner that is fully compliant with industry standards. If, for any reason, the Client specifically requires the Materials to be installed in any way which goes against HGP’s recommendations and/or falls below industry standards; a request detailing that requirement must be made in writing to HGP. Accordingly, HGP offers no warranty in regards to the aforementioned; and
  • (b) 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, HGP accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information; and
  • (c) accepts no responsibility for:
    1. (i) any damage or defects in any Materials caused by movement and/or interference of the said Materials;
    2. (ii) painting, re-decorating, re-sealing, carpentry, face brickwork, rendered masonry surfaces, or any other Works required for the restoration or making good of any surface/area where any Works have been carried out.

8.9 The Client warrants that no other tradesmen interfere with any Works and/or Materials supplied under this Contract. HGP shall not be liable for any costs, damages or loss however arising from the Client’s failure to comply with this clause.

9. Access

9.1 The Client shall ensure that HGP has clear and free access to the site at all times to enable them to undertake the Works (including carrying out site inspections, gain signatures for required documents, and for the delivery and installation of the Materials). HGP 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 HGP.

9.2 The Client agrees to be present at the worksite when and as reasonably requested by HGP and its employees, contractors and/or agents.

10. Underground Locations

10.1 Prior to HGP commencing the Works the Client must advise HGP of the precise location of all underground 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 site.

10.2 Whilst HGP will take all care to avoid damage to any services the Client agrees to indemnify HGP 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 10.1.

10. Underground Locations

10.1 Prior to HGP commencing the Works the Client must advise HGP of the precise location of all underground 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 site.

10.2 Whilst HGP will take all care to avoid damage to any services the Client agrees to indemnify HGP 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 10.1.

11. Compliance with Laws

11.1 The Client and HGP shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.

11.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

11.3 The Client warrants that any existing plumbing, gasfitting and/or associated services in or upon the worksite that is subject to the Materials and/or Works is in compliance with regulations. HGP reserves the right to halt all Works (in accordance with clause 7.2) if in their opinion the worksite is unsafe and/or the current positioning of the unit is illegal due to not meeting the required clearances then the Client will be informed of this and will be given a revised quotation or estimate to install the new appliance in a safe and legal position. Should the Client not wish to proceed HGP will charge a standard fee for the time spent on worksite based on HGP’s quotation.

12. Title

12.1 HGP and the Client agree that ownership of the Materials shall not pass until:

  • (a) the Client has paid HGP all amounts owing to HGP; and
  • (b) the Client has met all of its other obligations to HGP.

12.2 Receipt by HGP 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.

12.3 It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 12.1:

  • (a) the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to HGP on request;
  • (b) the Client holds the benefit of the Client’s insurance of the Materials on trust for HGP and must pay to HGP the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
  • (c) the production of these terms and conditions by HGP shall be sufficient evidence of HGP’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with HGP to make further enquiries;
  • (d) the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for HGP and must pay or deliver the proceeds to HGP on demand;
  • (e) the Client should not convert or process the Materials 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 HGP and must sell, dispose of or return the resulting product to HGP as it so directs;
    (f) unless the Materials have become fixtures the Client irrevocably authorises HGP to enter any premises where HGP believes the Materials are kept and recover possession of the Materials;
  • (g) HGP may recover possession of any Materials in transit whether or not delivery has occurred;
  • (h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of HGP;
  • (i) HGP may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

13. Personal Property Securities Act 2009 (“PPSA”)

13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

13.2 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 HGP for Works – that have previously been supplied and that will be supplied in the future by HGP to the Client.

13.3 The Client undertakes to:

  • (a) 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 HGP may reasonably require to:
    1. (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
    2. (ii) register any other document required to be registered by the PPSA; or
    3. (iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
  • (b) indemnify, and upon demand reimburse, HGP 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;
  • (c) not register a financing change statement in respect of a security interest without the prior written consent of HGP;
  • (d) 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 HGP;
  • (e) immediately advise HGP 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.

13.4 HGP 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.

13.5 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.

13.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

13.7 Unless otherwise agreed to in writing by HGP, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.

13.8 The Client shall unconditionally ratify any actions taken by HGP under clauses 13.3 to 13.5.

13.9 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

14. Security and Charge

14.1 In consideration of HGP agreeing to supply the Materials, 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).

14.2 The Client indemnifies HGP from and against all HGP’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising HGP’s rights under this clause.

14.3 The Client irrevocably appoints HGP and each director of HGP as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.

15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

15.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify HGP 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 Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow HGP to inspect the Materials or to review the Works provided.

15.2 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).

15.3 HGP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, HGP makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. HGP’s liability in respect of these warranties is limited to the fullest extent permitted by law.

15.5 If the Client is a consumer within the meaning of the CCA, HGP’s liability is limited to the extent permitted by section 64A of Schedule 2.

15.6 If HGP is required to replace any Materials under this clause or the CCA, but is unable to do so, HGP may refund any money the Client has paid for the Materials.

15.7 If HGP is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then HGP may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.

15.8 If the Client is not a consumer within the meaning of the CCA, HGP’s liability for any defect or damage in the Materials is:

  • (a) limited to the value of any express warranty or warranty card provided to the Client by HGP at HGP’s sole discretion;
  • (b) limited to any warranty to which HGP is entitled, if HGP did not manufacture the Materials;
  • (c) otherwise negated absolutely.

15.9 Subject to this clause 15, returns will only be accepted provided that:

  • (a) the Client has complied with the provisions of clause 15.1; and
  • (b) HGP has agreed that the Materials are defective; and
  • (c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
  • (d) the Materials are returned in as close a condition to that in which they were delivered as is possible.

15.10 Notwithstanding clauses 15.1 to 15.9 but subject to the CCA, HGP shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

  • (a) the Client failing to properly maintain or store any Materials;
  • (b) the Client using the Materials for any purpose other than that for which they were designed;
  • (c) the Client continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
  • (d) interference with the Works by the Client or any third party without HGP’s prior approval;
  • (e) the Client failing to follow any instructions or guidelines provided by HGP;
  • (f) fair wear and tear, any accident, or act of God.

15.11 Notwithstanding anything contained in this clause if HGP is required by a law to accept a return then HGP will only accept a return on the conditions imposed by that law.

15.12 Subject to clause 15.1, customised, or non-stocklist items or Materials made or ordered to the Client’s specifications are not acceptable for credit or return.

16. Intellectual Property

16.1 Where HGP 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 HGP, and shall only be used by the Client at HGP’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of HGP.

16.2 The Client warrants that all designs, specifications or instructions given to HGP will not cause HGP to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify HGP against any action taken by a third party against HGP in respect of any such infringement.

16.3 The Client agrees that HGP may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which HGP has created for the Client.

17. Default and Consequences of Default

17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at HGP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

17.2 If the Client owes HGP any money the Client shall indemnify HGP from and against all costs and disbursements incurred by HGP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, HGP’s contract default fee, and bank dishonour fees).

17.3 Further to any other rights or remedies HGP may have under this Contract, if a Client has made payment to HGP, 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 HGP under this clause 17 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.

17.4 Without prejudice to HGP’s other remedies at law HGP shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to HGP shall, whether or not due for payment, become immediately payable if:

  • (a) any money payable to HGP becomes overdue, or in HGP’s opinion the Client will be unable to make a payment when it falls due;
  • (b) the Client has exceeded any applicable credit limit provided by HGP;
  • (c) the Client becomes insolvent or bankrupt, 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
  • (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

18. Cancellation

18.1 Without prejudice to any other remedies HGP may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions HGP may suspend or terminate the supply of Works to the Client. HGP will not be liable to the Client for any loss or damage the Client suffers because HGP has exercised its rights under this clause.

18.2 HGP may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice HGP shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to HGP for Works already performed. HGP shall not be liable for any loss or damage whatsoever arising from such cancellation.

18.3 In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by HGP as a direct result of the cancellation (including, but not limited to, any loss of profits).

18.4 Cancellation of orders for products 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.

19. Privacy Policy

19.1 All emails, documents, images or other recorded information held or used by HGP is Personal Information, as defined and referred to in clause 19.3, and therefore considered Confidential Information. HGP acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). HGP acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by HGP that may result in serious harm to the Client, HGP will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.

19.2 Notwithstanding clause 19.1, privacy limitations will extend to HGP in respect of Cookies where transactions for purchases/orders transpire directly from HGP’s website. HGP agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:

  • (a) IP address, browser, email client type and other similar details;
  • (b) tracking website usage and traffic; and
  • (c) reports are available to HGP when HGP sends an email to the Client, so HGP may collect and review that information (“collectively Personal Information”)

In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via HGP’s website.

19.3 The Client agrees for HGP to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by HGP.

19.4 The Client agrees that HGP may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

  • (a) to assess an application by the Client; and/or
  • (b) to notify other credit providers of a default by the Client; and/or
  • (c) 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
  • (d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.

19.5 The Client consents to HGP being given a consumer credit report to collect overdue payment on commercial credit.

19.6 The Client agrees that personal credit information provided may be used and retained by HGP for the following purposes (and for other agreed purposes or required by):

  • (a) the provision of Works; and/or
  • (b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
  • (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
  • (d) enabling the collection of amounts outstanding in relation to the Works.

19.7 HGP may give information about the Client to a CRB for the following purposes:

  • (a) to obtain a consumer credit report;
  • (b) allow the CRB to create or maintain a credit information file about the Client including credit history.

19.8 The information given to the CRB may include:

  • (a) Personal Information as outlined in 19.3 above;
  • (b) name of the credit provider and that HGP is a current credit provider to the Client;
  • (c) whether the credit provider is a licensee;
  • (d) type of consumer credit;
  • (e) 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);
  • (f) 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 HGP has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
  • (g) information that, in the opinion of HGP, the Client has committed a serious credit infringement;
  • (h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

19.9 The Client shall have the right to request (by e-mail) from HGP:

  • (a) a copy of the Personal Information about the Client retained by HGP and the right to request that HGP correct any incorrect Personal Information; and
  • (b) that HGP does not disclose any Personal Information about the Client for the purpose of direct marketing.

19.10 HGP 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.

19.11 The Client can make a privacy complaint by contacting HGP via e-mail. HGP 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.

20. Building and Construction Industry Security of Payments Act 1999

20.1 At HGP’s sole discretion, if there are any disputes or claims for unpaid Works and/or Materials then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.

20.2 Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.

21. Unpaid Seller’s Rights

21.1 Where the Client has left any item with HGP for repair, modification, exchange or for HGP to perform any other service in relation to the item and HGP has not received or been tendered the whole of any monies owing to it by the Client, HGP shall have, until all monies owing to HGP are paid:]

  • (a) a lien on the item; and
  • (b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.

21.2 The lien of HGP shall continue despite the commencement of proceedings, or judgment for any monies owing to HGP having been obtained against the Client.

22. Service of Notices

22.1 Any written notice given under this Contract shall be deemed to have been given and received:

  • (a) by handing the notice to the other party, in person;
  • (b) by leaving it at the address of the other party as stated in this Contract;
  • (c) by sending it by registered post to the address of the other party as stated in this Contract;
  • (d) 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;
  • (e) if sent by email to the other party’s last known email address.

22.2 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.

23. Trusts

23.1 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 HGP may have notice of the Trust, the Client covenants with HGP as follows:

  • (a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
  • (b) 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;
  • (c) the Client will not without consent in writing of HGP (HGP will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
    1. (i) the removal, replacement or retirement of the Client as trustee of the Trust;
    2. (ii) any alteration to or variation of the terms of the Trust;
    3. (iii) any advancement or distribution of capital of the Trust; or
    4. (iv) any resettlement of the trust property.

24. General

24.1 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.

24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which HGP has its principal place of business, and are subject to the jurisdiction of the Penrith Local Courts in New South Wales.

24.3 Subject to clause 15, HGP 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 HGP of these terms and conditions (alternatively HGP’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

24.4 HGP may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

24.5 The Client cannot licence or assign without the written approval of HGP.

24.6 HGP may elect to subcontract out any part of the Works 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 HGP’s sub-contractors without the authority of HGP.

24.7 The Client agrees that HGP may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to 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 HGP to provide Works to the Client.

24.8 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 event beyond the reasonable control of either party.

24.9 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.