Terms
Please note that a larger print version of these terms and conditions is available from the Contractor on request. #37767 © Copyright – EC Credit Control 1999 - 2021
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 “Contractor” means Hott Electrics Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Hott Electrics Pty Ltd.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Contractor 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 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).
1.5 "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, knowhow, 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 the Contractor and the Client in accordance with clause 5 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 The Client acknowledges that the supply of Works on credit shall not take effect until the Client has completed a credit application with the Contractor and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Works request exceeds the Clients credit limit and/or the account exceeds the payment terms, the Contractor reserves the right to refuse delivery.
2.6 Any advice, recommendation, information, assistance or service provided by the Contractor in relation to Works and Materials supplied 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 or Materials.
2.7 In the event that the Contractor is required to provide the Works urgently, that may require the Contractor’s staff to work outside normal business hours (including but not limited to working through lunch breaks, weekends and/or Public Holidays) then the Contractor reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between the Contractor and the Client.
2.8 If the Contractor 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.
2.9 The Client acknowledges and accepts that the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, the Contractor reserves the right to substitute comparable Materials (or components of the Materials) and vary the Price as per clause 5.2. In all such cases the Contractor will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order on hold until such time as the Contractor and the Client agree to such changes.
2.10 These terms and conditions may be meant to be read in conjunction with the Contractor’s Service Agreement form and if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
2.11 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.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that the Contractor 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 the Contractor 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 the Contractor in respect of the Works.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Client shall not be entitled to treat this Contract as
repudiated nor render it invalid.
4. Change in Control
4.1 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, change of trustees, 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.
5. Price and Payment
5.1 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 performed or Materials supplied; or
(b) the Contractor’s quoted Price (subject to clause 5.2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days.
5.2 The Contractor 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 accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, hard rock barriers below the surface, iron reinforcing rods in
concrete, limitations in accessing the site 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.
5.3 Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Client shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor 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.
5.4 At the Contractor’s sole discretion a non-refundable deposit may be required.
5.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by 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) for approved Clients the date shall be fourteen (14) following the date of any invoice or other form as being the date for payment; or
(d) 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.
5.6 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 the Contractor.
5.7 The Contractor may in its discretion allocate any payment received from the Client towards any invoice that the Contractor determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Contractor may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Contractor, payment will be deemed to be allocated in such manner as preserves the maximum value of the Contractor’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.
5.8 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 the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 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 supply by the Contractor 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.
6. Provision of the Works
6.1 Subject to clause 6.2 it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.
6.2 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.
6.3 At the Contractor’s sole discretion, the cost of delivery is included in the Price.
6.4 The Contractor 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.
6.5 Any time specified by the Contractor for delivery 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 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 the Contractor is unable to supply 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-supplying the Works at a later time and date, and/or for storage of the Materials.
7. Risk
7.1 If the Contractor retains ownership of the Materials under clause 9 then:
(a) where the Contractor 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 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).
(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 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.
7.3 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If, for any reason (including but not limited to, the structure not being watertight, the discovery of asbestos, defective or unsafe wiring, or dangerous access etc.) The Contractor reasonably forms the opinion that the Client’s property is not safe for the installation of Materials to proceed then the Contractor shall be entitled to delay installation of the Materials (in accordance with clause 6.2) until the Contractor is satisfied that it is safe for the installation to proceed. The Contractor may in agreement with the Client bring the property 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 and be charged for in addition to the Price.
7.4 In the event asbestos or any other toxic substances are discovered at the property, that it is the Client’s 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.
7.5 The Contractor 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 the Contractor’s recommendations and/or falls below industry standards; a request detailing that requirement must be made in writing to the Contractor. Accordingly, the Contractor offers no warranty in regards to the aforementioned.
7.6 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify the Contractor immediately upon any proposed changes. The Client agrees to indemnify the Contractor against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 5.2.
7.7 Where the Client has supplied materials for the Contractor to complete the Works, the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. The Contractor
shall not be responsible for any defects in the materials, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Client.
7.8 The Client acknowledges and accepts that:
(a) the Contractor is only responsible for Materials that are replaced/supplied by the Contractor, and in the event that other parts/goods, subsequently fail, the Client agrees to indemnify the Contractor against any loss or damage to the Works, or caused by the goods, or any part thereof howsoever arising; and
(b) all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in the Contractor’s fact sheets, price lists or advertising material are indicative only and that they have not relied on such information; and
(c) where the Contractor has performed temporary repairs that:
(i) the Contractor offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(ii) the Contractor will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair.
7.9 The Contractor accepts no responsibility for any damage or performance related problems with any Materials where they have not been used and/or maintained in accordance with the Contractor’s and/or the manufacturers’
recommendations.
7.10 The Client acknowledges that Materials supplied may:
(a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
7.11 Where the Contractor requires that Materials, tools etc. required for the Works be stored at the site, the Client shall supply the Contractor a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.
8. Client’s Responsibilities
8.1 Prior to the Contractor commencing the Works the Client must advise the Contractor of the precise location of all 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 the site. Whilst the Contractor will take all care to avoid damage to any underground services, the Client agrees to indemnify the Contractor 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 this clause 8.1.
8.2 It is the intention of the Contractor, and agreed by the Client, that it is the responsibility of the Client to:
(a) ensure that the Contractor has clear and free access to the site at the agreed date/s and time/s to enable the Contractor 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 Contractor’s negligence; and
(b) provide the Contractor with facilities, as specified by the Contractor, (including, but not limited to, a suitable free power source) for the duration of the Works.
9. Title
9.1 The Contractor and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid the Contractor all amounts owing to the Contractor; and
(b) the Client has met all of its other obligations to the Contractor.
9.2 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.
9.3 It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 9.1:
(a) the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Contractor on request; (b) the Client holds the benefit of the Client’s insurance of the Materials on trust for the Contractor and must pay to the Contractor 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 the Contractor shall be sufficient evidence of the Contractor’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Contractor 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 the Contractor and must pay or deliver the proceeds to the Contractor 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 the Contractor and must sell, dispose of or return the resulting product to the Contractor as it so directs;
(f) 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 of the Materials;
(g) the Contractor 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 the Contractor;
(i) the Contractor may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 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 the Contractor for Works – that have previously been supplied and that will be supplied in the future by the Contractor to the Client.
10.3 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 10.3(a)(i) or 10.3(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 Materials charged 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;
(e) immediately advise the Contractor 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.