TERMS AND CONDITIONS OF TRADE
- DEFINITIONS
- “Kwikserv” means Kwikserv Formwork & Scaffolding (Vic) Pty. Ltd. ACN 110 883 817.
- “Customer” means the entity that has contracted with Kwikserv to hire and/or purchase Goods and supply Services.
- “Goods” means any goods by Kwikserv to the Customer (or ordered by the Customer but not yet supplied), excluding shade cloth, building protection, screening and movement boards unless any of these items are expressly included in the Quotation.
- ‘Services’ means any services supplied by Kwikserv to the Customer, excluding any drilling that may be required or replacement of windows removed in order for positive ties location unless any of these services are expressly included in the Quotation.
- “Price” means the cost of the Goods and Services as agreed between Kwikserv and the Customer and includes all out of pocket expenses Kwikserv incurs on the Customer’s behalf subject to clause 5 of this contract.
- “Quotation” means any quotation provided by Kwikserv to the Customer.
- ACCEPTANCE
- Any instructions received by Kwikserv from the Customer for the supply of Goods and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
- PRECEDENCE
- The Customer acknowledges that these Terms and Conditions of Trade take precedence over any terms and conditions contained in any document provided by the Customer.
- PRIVACY ACT 1988 (AS AMENDED)
- Kwikserv collects personal information about the Customer (if a sole trader, individual trustee, or partnership of individuals) for the purposes set out in its Privacy Policy. This policy may be located at http://www.kwikservscaffold.com.au/ A hardcopy of this policy can also be provided to the Customer free of charge, upon request.
- The Privacy Policy sets out: the personal information Kwikserv collects; how Kwikserv collects and uses this information; how the Customer may access or correct it; and how the Customer may make a complaint in respect of Kwikserv ’s management of the information;
- By the Customer providing instructions to Kwikserv for the supply of Goods and Services, the Customer is consenting to Kwikserv collecting, handling, using, disclosing and otherwise dealing with the Customer’s personal information (including credit related personal information) in accordance with the terms of Kwikserv ’s Privacy Policy, and in accordance with Australia’s privacy laws.
- Kwikserv collects personal information about the Customer (if a sole trader, individual trustee, or partnership of individuals) for the purposes set out in its Privacy Policy. This policy may be located at http://www.kwikservscaffold.com.au/ A hardcopy of this policy can also be provided to the Customer free of charge, upon request.
- PRICE
- The Price shall, at Kwikserv ’s sole discretion, be:
- as stated on any invoice provided by Kwikserv to the Customer; or
- Kwikserv’s quoted price (subject to clause 7); and
- Variation works will be quoted separately.
- The Price shall, at Kwikserv ’s sole discretion, be:
- PAYMENT
- Unless otherwise agreed in writing, all accounts must be paid as follows:
- for Goods purchased, payment is required prior to or at the time of delivery of the Goods.
- For Goods hired and Services rendered:
- the first invoice is payable from the date the handover certificate is signed and will include:
- total labour charges for the erection of the scaffolding;
- 65% of the total transport charge; and
- four (4) weeks minimum hire or as stated in the quotation.
- If the job has multiple stages Kwikserv will render an invoice for 70% of the completed initial erection (including labour/transport and hire) of each stage.
- All subsequent invoices for ongoing hire charges will be rendered as per payment terms stated in the quotation and are payable within seven (7) days of the date of the invoice.
- The final invoice is payable on or before the dismantling and removal of the Goods.
- the first invoice is payable from the date the handover certificate is signed and will include:
- For Goods hired only:
- the first invoice for four (4) weeks minimum hire is payable before the time of delivery of the Goods;
- all subsequent invoices for ongoing hire charges will be rendered fortnightly and are payable within seven (7) days of the date of the invoice.
- All invoices are payable on or before the return of the Goods.
- Any invoices for variation works are payable within seven (7) days of the date of the invoice.
- Payment for any amount outstanding shall be deemed immediately due and payable in any of the following circumstances:
- there is non-payment of any sum by the expiry/due date;
- Kwikserv forms the view that the Customer will not pay any sum by its expiry/due date;
- the Customer is bankrupted or enters administration, liquidation or receivership;
- a Court judgment is entered against the Customer and remains unsatisfied for seven (7) days;
- any material adverse change in the financial position of the Customer.
- the head building contract is terminated.
- Invoices relating to erection work must be paid in full prior to scaffold being dismantled by Kwikserv.
- Kwikserv can suspend any and all scheduled Services and/or choose to dismantle and repossess the Goods if any event described in clause 6.2 occurs and the Customer agrees that Kwikserv will not be liable for any loss or delay sustained by the Customer as a result of the suspension.
- Interest accrues on any amount owing after the expiry/due date at the rate of 2% per month, calculated daily from the first day overdue until payment.
- All payments to be made by the Customer will be made without set-off (whether arising at law or in equity) or counterclaim (whether arising at law or in equity) and free and clear of any withholding or deduction whatsoever, unless prohibited by law.
- The Customer shall pay (on a full indemnity basis) any and all expenses, disbursements, collection costs and legal costs which Kwikserv has incurred or is liable to pay, in connection with the enforcement of any rights and/or preservation of any rights contained in this contract.
- For the purposes of clause 6.5, the Customer acknowledges that collection costs may be calculated on a commission basis at a percentage rate of up to 20% of the amount due and expressly agrees to pay for those expenses as liquidated damages on demand, irrespective of whether (a) Kwikserv is not liable to pay the collection agent the commission, until the Customer has made payment of the Customer’s overdue debt (or any portion thereof) and/or (b) the amount of work actually performed by the collection agent before the Customer makes a payment for an overdue debt.
- Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until it results in Kwikserv receiving cleared funds for the entire amount of the negotiable instrument.
- Unless otherwise agreed in writing, all accounts must be paid as follows:
- QUOTATION
- A minimum notice period of five (5) working days together with an approved signed purchaser order from the Customer is required prior to the provision of any Goods and/or Services or Quotation.
- Where a quotation is given by Kwikserv for Goods and Services:
- unless otherwise agreed, is not an offer to sell or provide Goods and Services;
- unless otherwise agreed the quotation shall be valid for 30 days from date of issue;
- Kwikserv will not be bound by any order given until accepted in writing;
- Kwikserv reserves the right to alter the quotation because of circumstances beyond its control including and, in no way limited to, increases in the price charged by its suppliers for products and/or services at the time that Kwikserv is made aware of third party price increases.
- Where Goods and Services are required in addition to the quotation, the Customer agrees to pay for those Goods and Services pursuant to clause 6.1.4.
- VARIATION
- Any request for a variation of the Goods and Services must be made in writing by submitting a written purchaser order to Kwikserv and prior to the delivery of the Goods.
- Any extension of supply of Goods hired requested by the Customer will be considered a variation and the Customer will be invoiced for the additional hire charges.
- The Customer will not be entitled to a credit of the hire charges in the event that the Customer terminates the agreement early.
- Any relocation works or any additional works whatsoever that are not expressly provided in the Quote are considered variation works.
- POWER LINES/ENGINEERING FACTORS
- In the event that there are power lines within 4.6 meters to the scaffold, the Customer is solely responsible for relocating or isolating the power, obtaining all necessary VESI permits and obtaining written permission from the relevant power supplier authority prior to the erection of the Goods.
- Any VESI permit must be provided to Kwikserv at least five (5) working days prior to any Services being provided to the Customer.
- Kwikserv is not responsible for any initial and ongoing costs associated with a VESI permit.
- The cost of any engineering services and engineering certificate is not included in the Price unless requested in writing and expressly provided on the Quotation.
- SITE ACCESS
- The Customer is responsible for ensuring that Kwikserv has clear and unobstructed access to the erection site for the delivery and collection of Goods and the supply of Services at all times.
- Kwikserv will not be responsible for any site cleaning should the roads, driveway or site generally, become muddy or dirty during the delivery of the Goods.
- The Customer will not permit any other trades or personnel to be working on the external façade during the installation and dismantling of the Goods by Kwikserv.
- RISK TO GOODS AND DELIVERY
- Risk in any Goods shall pass to the Customer at the time when the Goods have been placed at the Customer’s location, which is to affect delivery from Kwikserv ’s store or warehouse;
- Any date quoted for installation by Kwikserv is an estimate only;
- Unless a guarantee is given by Kwikserv in writing, providing for liquidated damages for failure to deliver by the date quoted for installation, Kwikserv will not be liable to the Customer for any loss or damage howsoever arising even if arising out of the negligence of Kwikserv for failure to deliver on or before the date quoted for delivery;
- Kwikserv reserves the right to make installation to the Customer by instalments. If delivery is made by instalments the Customer is not entitled to:
- terminate or cancel the order following its acceptance by Kwikserv;
- terminate these Terms and Conditions of Trade;
- any claim, loss or damage howsoever arising from the failure of Kwikserv to install any instalments on or before the date quoted for instalment.
- TITLE AND PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)
Goods
- Legal and beneficial title in Goods leased by the Customer will remain Kwikserv at all times.
- In relation to scaffold that is purchased by the Customer, whilst risk in the Goods passes on delivery, legal and beneficial title in the Goods shall remain with Kwikserv until it has received payment in full for all monies owed by the Customer.
- Until Kwikserv has received payment in full for all monies owed by the Customer, Kwikserv reserves the following rights:
- legal and beneficial ownership of the Goods;
- the right to enter the Customer’s premises and retake possession of the Goods;
- the right to keep or resell any Goods repossessed under sub-clause 12.3.2; and
- any other rights it may have at law or under the PPSA.
- Where, pursuant to sub-clause 12.3.3:
- Kwikserv resells the Goods repossessed, it is agreed that Kwikserv may credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs); or
- Kwikserv retains possession of the repossessed Goods, it is agreed that Kwikserv may credit the Customer’s account with the invoice value less such sum as Kwikserv reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
- Kwikserv shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of any action taken to repossess the Goods.
- If the Goods are attached, fixed, or incorporated into any property of the Customer, title in the Goods shall remain with Kwikserv until the Customer has made payment for all monies owed to Kwikserv and where those Goods are mixed with other property so as to be part of or a constituent of any new product, title to these products shall be deemed to be assigned to Kwikserv as security for the full satisfaction by the Customer of the full amount owing between Kwikserv and the Customer.
- Until Kwikserv receives payment for Goods in full, the Customer acknowledges that Kwikserv has a Purchase Money Security Interest (“PMSI”) which attaches over the Goods and their proceeds and a Security Interest in relation to other amounts owed by the Customer to Kwikserv.
General
- Upon assenting to these Terms and Conditions of Trade, the Customer acknowledges and agrees that these Terms and Conditions of Trade constitute a Security Agreement for the purposes of the PPSA.
- The Customer undertakes to do anything (such as obtaining consents, producing documents, producing receipts and getting documents completed and signed) which Kwikserv asks and considers reasonably necessary for the purposes of:
- ensuring that a PMSI and/or Security Interest is enforceable, perfected and effective;
- enabling Kwikserv to apply for any registration, or give any notification, in connection with the Security Interest created under this Agreement so that the PMSI and/or Security Interest has the priority required by Kwikserv.
- To the extent permitted by law, the Customer irrevocably waives its right to:
- receive notices or statements under sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135 and 157 of the PPSA;
- redeem the Goods under section 142 of the PPSA;
- reinstate the Agreement under section 143 of the PPSA;
- receive a Verification Statement.
- The parties agree that section 96 of the PPSA does not apply to this Agreement.
- Nothing in clause 12 prevents Kwikserv from taking collection or legal action against the Customer to recover any monies owed from time to time.
- DISPUTES
- No claim relating to Goods and Services will be considered unless made in writing within 24 hours of installation.
- Kwikserv must be notified of any site defects or damage believed to be caused by the Goods or the dismantling of the Goods within 24 hours of the Goods being dismantled.
- Any reported defect or damage must be evidenced by photographs and written submissions by the site crew leading hand, KSL PM/site manager clearly identifying the suspected defect or damage.
- Kwikserv will not be liable for any defect or damage claim if clause 13.2 and 13.3 are not complied with.
- LIABILITY
- All implied conditions, warranties and undertakings other than the warranties set out in Kwikserv’s Product Warranty Information Leaflet are expressly excluded to the extent permitted by law.
- Where the Goods are of a kind other than goods ordinarily acquired for personal, domestic or household use, then Kwikserv’s liability is limited, at its option, to anyone or more of the following:
- the replacement or supply of the equivalent of the Goods;
- the repair of the Goods;
- the payment of the costs of replacing the Goods or acquiring their equivalent; or
- the payment of the costs of having the Goods repaired.
- Subject to the Customer’s rights under Schedule 2 of the Competition and Consumer Act 2010 (“CCA”), Kwikserv shall not be liable for:
- any loss or damage of any kind whatsoever, arising from the Goods and Services, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from the Goods and Services; and
- the Customer shall indemnify Kwikserv against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Kwikserv or otherwise, brought by any person in connection with any matter, act, omission, or error by Kwikserv, its agents or employees in connection with the Goods and Services.
- WARRANTY
- Manufacturer’s warranty applies to the Goods where applicable.
- CANCELLATION
- Orders placed with Kwikserv cannot be cancelled without the written approval of Kwikserv. In the event that Kwikserv accepts the cancellation of any order placed, it shall be entitled to charge a reasonable fee for any work done to the date of the cancellation including a fee for the processing and acceptance of the Customer’s order and request for cancellation.
- Any cancellation of scheduled Goods and Services provided with less than 24 hours’ notice will incur a cancellation fee of $360 plus GST.
- Any cancellation of scheduled Goods and Services after Kwikserv has arrived on site will incur charges of a minimum four (4) hours for each employee of Kwikserv on site at $45 per hour per employee.
- CHARGE
14.1 The Customer hereby charges in favour of Kwikserv all of the Customer’s estate and interest in any land, freehold or leasehold, in which the Customer now has or which it may later acquire any such interest in, with payment of all monies owing by the Customer to Kwikserv from time to time and hereby consents to Kwikserv lodging a caveat or caveats which note Kwikserv’s interest.
- JURISDICTION
15.1 These terms and conditions and all matters concerning the business relationship between Kwikserv and the Customer shall be governed by the law of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the Courts of Victoria for the conduct of any litigation.
- ASSIGNMENT
- The Customer cannot assign these terms and conditions without the prior written consent of Kwikserv.
- Kwikserv can assign these terms and conditions to a third party without the consent of the Customer.
- MISCELLANEOUS
- If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Kwikserv, Kwikserv is unable to perform in whole or in part any obligation under these terms and conditions, including delay in installation, Kwikserv shall be relived of that obligation under these terms and conditions to the extent and for that period that it is so unable to perform and shall not be liable to the Customer in respect of such inability.
- Failure by Kwikserv to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of its rights or obligations under this contract.
- If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected.
- The Customer will notify Kwikserv in writing of any change of ownership of the Customer or its business, or of directorships in the case of a corporate Customer, or of any other change whatsoever affecting these terms and conditions within seven (7) days from the date of such a change.
- The Customer indemnifies Kwikserv from and against any loss or damage incurred by it as a result of the Customer’s failure to notify Kwikserv of any change in ownership.
- Any variation of the terms and conditions contained in this contract must be agreed to in writing by Kwikserv for it to have any legal effect.
- Any scaffold under hire must only be installed by Kwikserv. The Customer must not allow or otherwise permit any third-party to install scaffold that is under hire. Kwikserv is not liable in any way for any reason if the scaffold under hire has been installed by any party other than Kwikserv.