Terms & Conditions
1.1 “Contractor” means NJM Roofing Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of NJM Roofing Pty Ltd. 1.2 “Client” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally. 1.3 “Works” means all Works or Materials provided by the Contractor 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). 1.4 “Price” means the Price payable for the Works as agreed between the Contractor and the Client in accordance with clause 4 below.
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 provision of any Works. 2.2 These terms and conditions may only be amended with the Contractor’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Contractor. 2.3 These terms and conditions may be meant to be read in conjunction with the Contractor’s Hire Form, and: (a) where the context so permits, the terms ‘Works’ or ‘Materials’ shall include any supply of Equipment, as defined therein; and (b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
3.1 The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.
4.1 At the Contractor’s sole discretion the Price shall be either: (a) as indicated on invoices provided by the Contractor to the Client in respect of Works provided; or (b) the Contractor’s quoted Price (subject to clause 4.2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days. Where the Contractor’s quotation is for repairs to existing roofs, the quotation shall be based only on the replacement of damaged roofing and shall not include the replacement of roofing with slight imperfections, unless authorised by the Client prior to the commencement of the Works. If the Client requests the replacement of roofing that has slight imperfections but the Contractor does not deem to be defective or affect the integrity of the roof then this shall be a variation to the original quotation and clause 4.2 will apply. 4.2 the Contractor reserves the right to change the Price: (a) if a variation to the Materials which are to be provided 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 accessing the site, obscured/latent building/site defects, safety considerations (discovery of asbestos, structural damage, etc.), prerequisite work by any third party not being completed, remedial work required due to existing workmanship being of a poor quality, hard rock barriers below the surface or iron reinforcing rods in concrete, or hidden pipes and wiring in walls, etc.) which are only discovered on commencement of the Works; or (d) in the event of increases to the Contractor in the cost of labour or Materials, which are beyond the Contractor’s control. 4.3 At the Contractor’s sole discretion, a non-refundable deposit may be required. 4.4 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be: (a) on completion of the Works; or (b) by way of progress payments in accordance with the Contractor’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; or (c) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices; (d) the date specified on any invoice or other form as being the date for payment; or (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Contractor. 4.5 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and the Contractor. 4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any provision of Works by the Contractor under this or any other agreement. 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.
5.1 Subject to clause 5.2, it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible. 5.2 The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Contractor’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 the Contractor that the site is ready; or (d) safety considerations due adverse weather conditions. 5.3 The Contractor may provide the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions. 5.4 Any time specified by the Contractor for provision of the Works is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Client as a result of any delay. However both parties agree that they shall make every endeavour to enable the Works to be provided at the time and place as was arranged between both parties. In the event that the Contractor is unable to provide the Works as agreed solely due to any action or inaction of the Client then the Contractor shall be entitled to charge a reasonable fee for re-providing the Works at a later time and date.
6.1 The Client shall ensure that the Contractor has clear and free access to the work site at all times to enable them to undertake the Works. The Contractor 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 the Contractor. 6.2 It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks. The Client agrees to indemnify the Contractor against all costs incurred by the Contractor in recovering such vehicles in the event they become bogged or otherwise immovable.
7.1 If the Contractor retains ownership of the Materials under clause 11 then: (a) where the Contractor is supplying Materials only: (i) all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery; (ii) delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by the Contractor or the Contractor’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address); (iii) at the Contractor’s sole discretion the cost of delivery is included in the Price; (iv) notwithstanding the provisions of clause 7.1, if the Client specifically requests the Contractor to leave Materials outside the Contractor’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. (b) where the Contractor is to both supply and install Materials then the Contractor 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. 7.2 The Contractor may at its discretion notify the Client that it requires to store at the worksite Materials, fittings and appliances, or plant and tools required for the Works, in which event the Client shall supply the Contractor a safe area for storage and shall take all reasonable efforts to protect all items so stored from possible destruction, theft or damage. In the event that any such items are destroyed, stolen or damaged then the cost of repair or replacement shall be the Client’s responsibility. 7.3 The Client warrants that the structure of the premises or equipment in or upon which these Materials are to be installed or erected is: (a) sound and will sustain the installation and Works incidental thereto, and the Contractor shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation; (b) constructed to the Building Code of Australia and satisfies the relevant Australian Standard. It is the Contractor’s responsibility to check for compliance, but the Client’s responsibility to have any non-compliance issues rectified at their own expense. 7.4 The Client acknowledges that Materials supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. The Contractor will make every effort to match batches of Materials supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur. 7.5 Liability will not be accepted for accidents due to inappropriate selection or maintenance of Materials, or carelessness thereof. 7.6 The Contractor warrants that the size of gutters and the number, size and position of downpipes on the project satisfy the Australian standards. However, the Contractor does not warrant the condition of underground storm water pipes or existing blockage, which often results in gutter overflowing and back filling of downpipes. Repairs to these works are not the Contractor’s responsibility. 7.7 Any advice, recommendation, information, assistance or service provided by the Contractor in relation to Works is given in good faith, is based on the Contractor’s own knowledge and experience and shall be accepted without liability on the part of the Contractor, and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Works. 7.8 The Contractor, it’s directors, employees and consultants, believe that the information provided to the Client is correct and that any calculations, estimates, conclusions or recommendations contained in any quotation, estimate or similar document are reasonably held or made as at the time of compilation. However, no warranty is made as the accuracy or reliability of any calculations, estimates, conclusions or recommendation (which made change with notice) or other information contained therein and, to the maximum extent permitted by law, the Contractor disclaims all liability and responsibility for any direct or indirect loss or damage which may be suffered by any recipient through relying on anything contained therein or omitted therefrom.
8.1 It is the intention of the Contractor and agreed by the Client that it is the responsibility of the Client to ensure there are not obstructions on site near the working area and to provide, and have erected, scaffolding on any area above three (3) metres off ground level (prior to measure), to enable the Works to be undertaken. It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed. 8.2 The Client acknowledges that in the event asbestos or any other toxic substances are discovered at the worksite that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify the Contractor against any costs incurred by the Contractor as a consequence of such discovery. Under no circumstances will the Contractor handle removal of asbestos product. 8.3 The Contractor is not responsible for the removal of rubbish from or clean-up of the building/constructions site/s. This is the responsibility of the Client or the Client’s agent. 8.4 It is further agreed that: (a) the Client will supply temporary lighting, toilet, eating and first aid facilities if required; and (b) the Client will advise all amenity locations (including without limitation, water, gas, electricity, telephone or any other underground amenity) to the Contractor prior to commencement of the Works.
9.1 In the event the Client gives information relating to measurements and quantities of the Materials required it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or the Contractor places an order based on these measurements and quantities. The Contractor accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
10.1 The Client and the Contractor 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. 10.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
11.1 The Client acknowledges and agrees that the Client’s obligations to the Contractor for the provision the Works shall not cease, and ownership of the Materials shall not pass, until: (a) the Client has paid the Contractor all amounts owing for the particular Works; and (b) the Client has met all other obligations due by the Client to the Contractor in respect of all contracts between the Contractor and the Client. 11.2 Receipt by the Contractor 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 the Contractor ownership or rights in respect of the Works, and this agreement, shall continue. 11.3 It is further agreed that: (a) until ownership of the Works passes to the Client in accordance with clause 11.1, that the Client is only a bailee of the Materials, and unless the Materials have become fixtures, must return them to the Contractor on request; and (b) unless the Materials have become fixtures, the Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Materials are kept and recover possession thereof. (c) the Contractor may commence proceedings to recover the Price, notwithstanding that ownership of the Works has not passed to the Client.
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA. 12.2 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 collateral (account) – being a monetary obligation of the Client for Works – that have previously been supplied and that will be supplied in the future by the Contractor to the Client. 12.3 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 the Contractor may reasonably require to: (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities 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(a)(i) or 12.3(a)(ii); (b) indemnify, and upon demand reimburse, the Contractor 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 registration made thereby; (c) not register a financing change statement in respect of a security interest without the prior written consent of the Contractor; (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 the Contractor; and (e) immediately advise the Contractor of any material change in its business practices. 12.4 The Contractor 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. 12.5 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. 12.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA. 12.7 Unless otherwise agreed to in writing by the Contractor, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA. 12.8 The Client shall unconditionally ratify any actions taken by the Contractor under clauses 12.3 to 12.5. 12.9 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.
13.1 In consideration of the Contractor agreeing to provide the Works, 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). 13.2 The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause. 13.3 The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Client’s behalf.
14.1 The Client must inspect the Works on completion (or Materials on delivery) and must within seven (7) days of such time notify the Contractor in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to inspect/review the Works provided. 14.2 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). 14.3 The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees. 14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Works. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law. 14.5 If the Client is a consumer within the meaning of the CCA, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2. 14.6 If the Contractor is required to rectify, re-provide, or pay the cost of re-providing the Works under this clause or the CCA, but is unable to do so, then the Contractor 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 which have been provided to the Client which were not defective. 14.7 If the Client is not a consumer within the meaning of the CCA, the Contractor’s liability for any defect or damage in the Works is: (a) limited to the value of any express warranty or warranty card provided to the Client by the Contractor at the Contractor’s sole discretion; (b) limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Materials; (c) otherwise negated absolutely. 14.8 Notwithstanding clauses 14.1 to 14.7, but subject to the CCA, the Contractor 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 the Works; (b) the Client using the Works for any purpose other than that for which they were designed; (c) the Client continuing to use the Works 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 the Contractor’s prior approval; (e) the Client failing to follow any instructions or guidelines provided by the Contractor; (f) fair wear and tear, any accident, or act of God. 14.9 Notwithstanding anything contained in this clause if the Contractor is required by a law to accept a return then the Contractor will only accept a return on the conditions imposed by that law.
15.1 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 the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 15.2 If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonour fees). 15.3 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the provision of Works to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause. 15.4 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if: (a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to make a payment when it falls due; (b) 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 (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16.1 the Contractor may cancel any contract to which these terms and conditions apply or cancel the provision of Works at any time before the Works have commenced by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation. 16.2 In the event that the Client cancels the provision of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits). 16.3 Cancellation of orders for Materials made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
17.1 The Client agrees for the Contractor to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Contractor. 17.2 The Client agrees that the Contractor 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 years. 17.3 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit. 17.4 The Client agrees that personal credit information provided may be used and retained by the Contractor 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. 17.5 the Contractor 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. 17.6 The information given to the CRB may include: (a) personal information as outlined in 17.1 above; (b) name of the credit provider and that the Contractor 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 the Contractor has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments); (g) information that, in the opinion of the Contractor, 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). 17.7 The Client shall have the right to request (by e-mail) from the Contractor: (a) a copy of the information about the Client retained by the Contractor and the right to request that the Contractor correct any incorrect information; and (b) that the Contractor does not disclose any personal information about the Client for the purpose of direct marketing. 17.8 the Contractor 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 agreement or is required to be maintained and/or stored in accordance with the law. 17.9 The Client can make a privacy complaint by contacting the Contractor via e-mail. The Contractor will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
18.1 At the Contractor’s sole discretion, if there are any disputes or claims for unpaid Works then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply. 18.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.
19.1 The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’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. 19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which the Contractor has its principal place of business, and are subject to the jurisdiction of the Ringwood Court in that state. 19.3 Subject to clause 14, the Contractor 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 the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price). 19.4 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 the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute. 19.5 The Contractor may license or sub-contract all or any part of its rights and obligations without the Client’s consent. 19.6 The Client agrees that the Contractor may amend these terms and conditions at any time. If the Contractor makes a change to these terms and conditions, then that change will take effect from the date on which the Contractor notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Contractor to provide any Works to the Client. 19.7 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. 19.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it. |
