South Adelaide Plumbing & Gas Service Agreement

  1. Definitions

 

1.1.  SAPG” means help Entity name SOUTH ADELAIDE PLUMBING AND GAS PTY LTD (ABN 62 640 912 992) (ACN 640 912 992) (SAPG), its successors and assigns or any person acting on behalf of and with the authority of SAPG including employees.

1.2.  Client” means:

1.2.1.      The legal entity or person receiving Services and or Goods from SAPG;

1.2.2.      The party contracting to being supplied the Goods or Services in this agreement; 

1.2.3.      Any person who signs this agreement (whether on their own behalf or the behalf any other person or legal entity);

1.2.4.      Any person named and described as the Client, or any person purporting to be the named and described Client;

1.2.5.      The executors, representatives, administrators and/or assigns of any person deemed to be a Client; and 

1.2.6.      Any person/s buying the Goods or Services as specified in any invoice, Quote, document or order, and if there is more than one, Client is a reference to each Client jointly and severally. 

1.3.  “Quote” means each tax invoice, quotation or job order or other document provided by SAPG to the Client which describes the Service, Goods, or work to be undertaken by SAPG for the Client, and includes any variations made by SAPG which form part of this service agreement that are intended to be read in conjunction with it;

1.4.  Service” includes but is not limited to selling, supplying, diagnosing, troubleshooting, installing, maintaining, or repairing of Goods, plumbing fixtures, materials, carrying out plumbing services and works supplied by SAPG for the Client at the Client’s request from time to time (where the context so permits, and without limiting the scope of the below, these terms shall be interchangeable with each other and the following:

1.4.1.              General plumbing & gas fitting repairs; 

1.4.2.              Blocked drains, toilets, pipes;

1.4.3.              Residential gas services 

1.4.4.              Drain repair;

1.4.5.              Pre-purchase property inspections;

1.4.6.              Burst pipes, leaking taps, leaking baths, leaking showers;

1.4.7.              Underground leak detection;

1.4.8.              CCTV pipe camera inspections;

1.4.9.              Hot water systems, hot water pumps, solar hot water systems;

1.4.10.           Emergency plumbing services and after hour call outs;

1.4.11.           Dishwashers, and other White Goods;

1.4.12.           Gas boosted solar, Gas fitting and gas plumbing;

1.4.13.           Sewer blockages, Septic systems;

1.4.14.           Roof leak repairs;

1.4.15.           Roof gutter, maintenance, repair and installations;

1.4.16.           Grease traps; and

1.4.17.           Pipe relining.

1.5.  Goods” includes any tangible items, Good(s), product(s) or material(s) required to undertake the Service(s) or incidental to the Service(s), including those goods described in a Quote;

1.6.  Price” means the Price payable for the Service as agreed between SAPG and the Client in accordance with clause 2, 9 and or clause 10;

1.7.  Site” means the designated place, address, premises, or location at which services are provided by SAPG to the client;

1.8.  Progress Payments” means and includes a payment claim under the Building and Construction Industry Security of Payment Act 2009 (SA) and payment claims under the Building Work Contractors Act 1995 (SA);

1.9.  Words importing the singular shall include the plural and vice versa;

1.10.  Words importing any gender include all genders;

1.11.  Any reference to any person includes that person’s executors, administrators, agents, assigns or, being a company, its successors or permitted assigns;

1.12.  Words describing individuals include companies and bodies corporate and vice versa;

1.13.  The headings in this are for convenience only and do not affect their construction;

1.14.  SAPG accepts no liability for the consequences of any changes in any law which may affect the Services or the supply of Goods; and

1.15.  This service agreement is not to be interpreted against the interests of a Party merely because that Party proposed this document or some provision of it or because that Party relies on a provision of this document to protect itself.

 

  1. Acceptance and Basis of Contract

 

2.1.  Any legal entity or person signing this agreement on behalf of the Client hereby covenants that he or she has the authority and requisite capacity to sign on behalf of and bind the Client to these conditions, it is not insolvent, and that this agreement creates binding and valid legal obligations on it;

2.2.  Where the Client is a tenant (and therefore not the owner of the land and premises where Services are to be undertaken or Goods installed) then the Client warrants that full consent has been obtained from the owner of the land (or the owner’s authorised agent) for SAPG to enter and undertake services on the land and premises; 

2.3.  The Client acknowledges and agrees that they shall be personally liable for full payment of the Price for all works provided under this agreement and agree to indemnify SAPG against any claim made by the owner of the premises (howsoever arising) in relation to the installation of Goods or supply of any Service(s) and the provision of any related Service(s) including variation(s) by SAPG except where such claim has arisen due to the negligence of SAPG;

2.4.  The Client agrees that, upon request, they will provide proof of ownership of the land for proposed Service or that they are a tenant with the express consent of the owner of such land;

2.5.  This agreement may only be amended with SAPG’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and SAPG;

Variations 

 

2.6.  In the event that: 

2.6.1.              the Client requests a variation (requiring written details from the Client);

2.6.2.              an unforeseeable problem occurs or is discovered, requiring a variation; or

2.6.3.              a variation is made

SAPG will give to the Client a written variation document detailing the Service, the Price, the estimated time to undertake the variation, and the likely delay, if any and require written acceptance of the variation before commencing work on the variation.

2.7.  The Client agrees to supply power, temporary lighting, toilet and first aid facilities to SAPG, as required;

2.8.  The Client agrees it will ensure its premises are safe for SAPG to enter and will restrain any pets or animals before SAPG attends to carry out services; 

2.9.  Every quote is an estimate only and is subject to withdrawal, correction or alteration at any time prior to SAPG’s acceptance of the quote;

2.10.  Services will be performed by SAPG during business hours Monday to Friday 7:30am – 4:00pm unless otherwise stated in the Client’s quote. 

2.11.  Prices are quoted on the basis that Service(s) will be performed during business hours referred to in this clause. 

2.12.  Work required by the Client or otherwise needed outside of these hours, may increase the quoted price and be subject to after hour / emergency call-out rates; and 

2.13.  The Client is solely responsible for notifying councils or appropriate authorities in relation to works done by SAPG for the Client.

 

 

  1. Underground Services

 

3.1.  In relation to any underground services (in that the surface of the ground is to be broken) SAPG may be required to first engage a third-party to ensure the safety of such activity. SAPG reserves the right to engage a third-party provider ‘service locator’ and on-charge the client for that service. Such an event will constitute a variation as detailed in clause 2.6 above. The Client will be consulted before any such engagement is made;

3.2.  Prior to Service(s) commencing, the Client must advise SAPG of the precise location of any underground services and clearly mark the same. These services include, but are not limited to, electrical, gas, sewer and pumping services, sewer connections, sludge mains and water mains, irrigation pipes, telephone cables, fibre optic cables, oil pump mains and any other services that may be on that location; and

3.3.  Whilst SAPG will take all reasonable care to avoid damage to any underground services, the Client accepts and agrees to indemnify SAPG in respect of any and all claims, loss, damage, costs and fines incurred as a result of damage to services not precisely located and notified, as per the clauses herein.

 

  1. Excavation  

 

4.1.  Unless otherwise stated in writing by SAPG, the Price or quoted price in respect of all digging, excavation, dewatering and similar works (Excavation Works) is based on the soil or ground being clean and not dense (e.g. clay soil) or rocky (Unfavourable Soil).

4.2.  If SAPG encounters Unfavourable Soil whilst undertaking the Services, then SAPG may at its discretion: 

4.2.1.              delay or extend the date that Services are due to be completed; and

4.2.2.              charge an added fee or cost to cover the cost in respect of the additional work and time required to undertake the Services (including the Excavation Works) by providing the Client with a variation.

 

  1. Excavation Works & Concrete works

 

5.1.  Unless otherwise stated in writing by SAPG, the Price does not include the cost to undertake:

5.1.1.              Excavation Works;

5.1.2.              Rock excavation; 

5.1.3.              Shale excavation;

5.1.4.              Trench shoring; 

5.1.5.              Tree or root removal;

5.1.6.              Dewatering or supportive work such as pier and beams filled from the ground up;

5.1.7.              Concrete cutting or drilling or similar works (Concrete Works); or

5.1.8.              The reinstatement of driveway, footpath, court paving, gardens, lawn and similar areas will be in addition to the price quoted in any Job Order;

5.2.  Any quoted price in respect of Concrete Works is based on a concrete thickness of 100mm; and

5.3.  If SAPG encounters a concrete thickness of greater than 100mm whilst undertaking Concrete Works then SAPG may (in its sole discretion) charge an additional fee or cost to cover the cost in respect of the additional work, equipment or time required to undertake such Concrete Works.

 

  1. Drains and Sewer

 

6.1.  The Client acknowledges that:

6.1.1.              The presence of plant or tree root growth within pipes or drains or blocked, broken or restricted pipes or drains (Damaged Pipes) may indicate that such pipes or drains are damaged; 

6.1.2.              Damaged Pipes cannot be permanently fixed by cleaning the Damaged Pipes or removing or dislodging plant or tree root growth or such other items which are causing restriction or blockage within Damaged Pipes; 

6.1.3.              The Client is liable to pay SAPG in the event that SAPG (acting reasonably) is unable to unblock Damaged Pipes; and 

6.1.4.              SAPG provides no warranty in respect of Services undertaken to unblock or clean Damaged Pipes, including (but not limited to), future or additional blockages or restrictions located within Damaged Pipes that SAPG has attempted to unblock or clean. 

6.2.  The Client further acknowledges that: 

6.2.1.              Close circuit television equipment, drainage cameras and other pipe inspection equipment (Specialised Pipe Equipment) may or may not be used by SAPG in its sole discretion in an attempt to locate the cause of Damaged Pipes;

6.2.2.              Should CCTV equipment be used the Client acknowledges that additional charges will be imposed; and

6.2.3.              Should any equipment become lodged or damaged in the Client’s drain it will be removed & / or repaired at the Client’s expense (includes materials, parts & labour) or monetary compensation to the total replacement of same or higher quality value will become payable to SAPG within 24 hours

 

  1. Rock & Filled Ground

 

7.1.  Unless specifically included in written quotes &/or estimates, rock excavation, dewatering or supportive work such as pier & beams for filled or made-up ground will be charged out as a variation to the original price; 

7.2.  Quotation is based on excavation of clean soils only, unless otherwise specifically stated in writing;

7.3.  Existing soils shall be returned to excavated areas where possible & ground shall be left filled;

7.4.  Landscaping and concrete works are not included in quotation unless specified be in writing; and 

7.5.  All concrete, paving and landscape works including shrub / plant & lawn replacement will be treated as a variation.

 

  1. Change in Control

 

8.1.  Where the Client is a business or company, the Client shall give SAPG not less than seven (7) days of 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 numbers, email addresses or business practice) (Change in Control Notice); and

8.2.  The Client shall be liable for any loss incurred by SAPG as a result of the Client’s failure to comply with this clause.

 

  1. Price and Payment

 

9.1.  At SAPG’s sole discretion, the Price shall be either: 

9.1.1.              as indicated by the quote provided by SAPG’s quote, valid for the period stated in the quotation or otherwise for a period of thirty (30) days;

9.1.2.              on any invoice provided by SAPG to the Client; or

9.1.3.              $150 / hour+ GST.

 

 

 

Variations

 

9.2.  SAPG reserves the right to change the Price if a variation to SAPG’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Service (including, but not limited to, any increases to SAPG in the cost of taxes, levies, materials and labour or where additional Services are required due to the discovery of hidden or unidentifiable difficulties including, but not limited to, obscured building defects, safety considerations, change in specifications or prerequisite work by any third party not being completed, etc. which are only discovered on commencement of the Services) will be charged for on the basis SAPG’s quotation and will be shown as variations on the invoice.

 

Return of Goods

 

9.3.  If Goods cannot be returned, SAPG reserves the right to claim the full costs of the Goods from the Client. If Goods can be returned, SAPG reserves the right to on-charge any restocking fee applied to such returns, and additionally any reasonable costs of time and travel incurred to undertake such returns.

 

Time for Payment 

 

9.4.  Time for payment for the Service and Goods being of the essence, the Price will be payable by the Client, in full, upon completion of the Service or on delivery of the Goods (whichever is later). At SAPG’s sole discretion, time for payment may alternatively be:

9.4.1.              7 days from the date of any invoice provided;

9.4.2.              Payments by weekly installments may be required where any job requires two (2) or more attendances by SAPG; 

9.4.3.              failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by SAPG; and / or

9.4.4.              By way of Progress Payments.

 

Payment Method

 

9.5.  Payment may be made by cash, Stripe, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to five percent (5%) of the Price) or by any other method as agreed to between the Client and SAPG; and

9.6.  Receipt by SAPG 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 SAPG’s rights and ownership in relation to the Service and Goods, and this agreement, shall continue.

 

GST

 

9.7.  Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to SAPG an amount equal to any GST SAPG must pay for any supply by SAPG under this or any other agreement for the sale of the Service. 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.

 

 

 

Discharge of Obligations

 

9.8.  SAPG and the Client agree that the terms of this agreement will not be finalised until:

9.8.1.              the Client has paid SAPG all amounts owing to SAPG; and

9.8.2.              the Client has met all of its other obligations to SAPG.

 

Made to Order or Pre-ordered Goods

 

9.9.  The Client agrees to pay a fifty percent (50%) deposit to SAPG for custom design, fabrication or made to order goods;

9.10.  The Client agrees to pay for the full purchase price of any goods that are required before the Services can be provided; and 

9.11.  If SAPG cannot access the Client’s property or access is otherwise obscured, the Client agrees to pay a fee of $50.00 + GST to SAPG. 

 

No Sale by Description 

 

9.12.  Any description of the Goods or Services provided in a quotation or invoice is given by way of identification only and does not constitute a contract of sale by description.

 

  1. Progress Payments Claims

 

10.1.  At SAPG’s sole discretion, if there are any disputes or claims for unpaid Goods or Services, then the provisions of the Building and Construction Industry Security of Payment Act 2009 (SAand Building and Construction Industry Security of Payments Act 2009 (SA) may apply;

10.2.  Progress Payments are calculated according to SAPG terms and conditions including but not limited to Quotes, variations, or proposals;

10.3.  The reference date for any progress payment claim issued by SAPG to the Client is fourteen (14) days after receipt of a progress payment claim; and

10.4.  If the Client does not pay any invoice and or progress payment claim, SAPG reserves the right to:

10.4.1.           halt any further work until such time as the outstanding payment is forthcoming without incurring any penalty;

10.4.2.           charge interest at a rate of 2.5% per month on any outstanding amount;

10.4.3.           exercise a lien over unfixed plant and materials supplied by SAPG;

10.4.4.           recover the unpaid portion of a claimed amount as a debt due in Court;

10.4.5.           make an adjudication application; or

10.4.6.           serve notice on the Client of SAPG’s intention to suspend carrying out construction works or supply Goods and Service.

10.5.  Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Security of Payment Act 2009 (SA); and

10.6.  The Client accepts that email is a valid format to receive payment claims made under the Building and Construction Industry Security of Payments Act 2009 (SA).

 

 

 

  1. Undertaking service

 

11.1.  Service is taken to have occurred at the time that:

11.1.1.           SAPG (or their nominated carrier) deliver the Goods to the Client’s nominated address, even if the Client is not present at the address (as may be agreed between the parties); 

11.1.2.           SAPG undertakes the Service at the Client’s nominated address, either in full or in part over one or more days, even if the Client is not present at the address (as may be agreed between the parties); or

11.1.3.           Any other method of service occurring, as agreed in writing by the parties to this agreement.

11.2.  At SAPG’s sole discretion, the cost of goods is not included in the Price;         

11.3.  The time, date and location for Service is to be agreed between the parties. In the event that the Client is unable to receive Service as arranged then SAPG shall be entitled to charge a reasonable fee for reattendance and/or storage of Goods;

11.4.  SAPG may undertake the Service in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in SAPG’s service agreement; and

11.5.  Any time or date given by SAPG to the Client is subject to change. SAPG will not be liable for any loss or damage incurred by the Client as a result of Service being late.

 

  1. Risk

 

12.1.  Risk of damage to Goods or property passes to the Client when SAPG arrives at the Client’s Premises to provide Service or Goods and the Client must insure their property, and any goods, prior to the Service.

Insurance, Damage to & Return of Goods

 

12.2.  If any Goods are damaged or destroyed following Service but prior to ownership passing to the Client, SAPG is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SAPG is sufficient evidence SAPGrights to receive the insurance proceeds without the need for any person dealing with SAPG to make further enquiries; 

12.3.  The Client agrees that SAPG may at their discretion refuse to provide the Service and or any Goods unless the Client has taken out appropriate insurance policies (as determined by SAPG in its absolute discretion) and provides SAPG with certificates of currency of such insurance policies;

12.4.  The Client has rights conferred on it by consumer protection legislation, including guarantees of the quality of provided Service and Goods. It is the Client’s sole responsibility to be aware of their rights. Beyond these statutory rights, SAPG provides no other guarantees or warranties regarding the Goods or Service; and

12.5.  If the Client requests SAPG to leave Goods outside their own premises, or outside SAPG’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.

 

Discovery of Toxic Substances 

 

12.6.  The Client acknowledges that in the event any toxic substances are discovered at the Premises that it is their responsibility to ensure the safe removal of the same; and 

12.7.  If such removal is required, SAPG will provide the Client with a written variation outlining the price to remove the substance(s) and seek client approval, in writing, prior to commencing work.  The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Service.

 

 

 

Clear & Safe Access is Required

 

12.8.  The Client shall ensure that SAPG has clear and free access to the place of work at all times to enable them to undertake the Services. SAPG shall not be liable for any loss or damage to the site unless due to the negligence of SAPG.

 

Suitability for Premises for the Service(s)

 

12.9.  Where SAPG is required to provide Services or Goods, the Client warrants that the structure of the area in or upon which they are to be installed or erected is safe, sound and will sustain the installation and work incidental thereto and SAPG shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the area be unable to accommodate the installation. 

 

Where the Client Provides Goods 

 

12.10.  Where the Client has supplied Goods for SAPG to complete the Services, the Client acknowledges and accepts responsibility and liability for the suitability of purpose, quality and any faults inherent in those Goods. SAPG shall not be liable for any defects in Goods, any loss or damage to property (or any part thereof), howsoever arising from the use of Goods supplied by the Client. Goods supplied by the Client must be available onsite prior to the commencement of Services.

 

Wear & Tear 

 

12.11.  The Client acknowledges that the Goods supplied may fade, change or lose colour, expand, contract or distort due to weather and age, mark or stain or be damaged or disfigured by impact. Whilst SAPG will make every effort to match samples supplied in order to minimise such variations, SAPG shall not be liable in any way for such variations.

 

No Advice is Given 

 

12.12.  Any advice, recommendation, information, assistance or service provided by SAPG in relation to Goods or Services supplied is given in good faith, is based on SAPG own knowledge and experience and shall be accepted without liability on the part of SAPG 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 Service; and

12.13.  Where SAPG gives advice or recommendations to the Client, or their agent, regarding the suitability of Goods or a Service, and such advice or recommendations are not acted upon by the Client, SAPG shall not be liable in any way whatsoever for any damages or losses that occur and any warranties, resupply or defects clauses will be revoked.

 

Goods Require Maintenance 

 

12.14.  The Client accepts and acknowledges that Goods supplied and installed by SAPG require reasonable maintenance. SAPG reserves the right to not accept liability for such Goods where they may have become negatively affected, or unusable, due to the Client’s failure to reasonably maintain such Goods and/or, follow instructions, guidelines, advice or recommendations provided by SAPG in regard to the proper maintenance of the Goods.

 

 

 

Dirt, Dust & Noise

 

12.15.  The Client accepts that machinery and tools used by SAPG in the undertaking of Services may generate dust, smoke or dirt. SAPG recommends that any property or equipment belonging to the Client is covered and windows and doors are opened whilst such machinery is in use; and

12.16.  The Client acknowledges that SAPG will make all reasonable efforts to clean a work area, however the Client accepts that SAPG may not remove all dirt, dust or other rubbish. SAPG does not accept liability for such removal.

 

  1. Dimensions, Design, Plans and Specifications

 

13.1.  SAPG shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client;

13.2.  If the giving of a Quote for the supply of Service involves the Client estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of the Client’s estimated measurements and quantities in the preparation of quotes and sales proposals;

13.3.  SAPG reserves the rights to make changes to the measurements after the agreement has been signed to comply with regulations and requirements for installation, such charges constitute a variation; and  

13.4.  All information, specifications and samples provided by SAPG in relation to the Goods or Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the services provided to the Client’s use of the Goods or Services will not entitle the Client to reject the Goods or Services upon Delivery or Installation, or to make any claim in respect of them.

 

  1. Compliance with Laws and Safety Standards

 

14.1.  The Client and SAPG shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable, including any work health and safety (WHS) laws relating to the relevant industry and any other relevant standards or legislation;

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

14.3.  The Client is solely responsible for any fines or other notices incurred by them, relating to the Services during and after installation or delivery.

 

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

 

15.1.  The Client must inspect all Goods on delivery (or Services on completion) and must within one (1) day of delivery notify SAPG, in writing, of any evident defect/damage, shortage in quantity or failure to comply with the description or quote. The Client must notify SAPG of any other alleged defect in the Goods/Services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow SAPG to inspect the relevant Goods or Services;

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

15.4.  Subject to Clause 15.4 below, SAPG warrants work provided for the Services, as follows:

15.4.1.           As to the warranty period for Services for a period of thirty (30) days;

15.4.2.           As to the warranty period for goods for a period of time warranted by the manufacturer supplying the goods; 

15.4.3.           SAPG will not accept liability, nor will the warranty provided for in Clause 15.4. apply, where the Client provides or instructs SAPG to use the Client’s own tools, equipment, Goods (excluding the manufacturer of Goods), or the services of a third-party; and

15.4.4.           SAPG reserves all rights, absolutely, to revoke or amend any of the warranties referred to in this agreement, depending on the nature of the work or of the premises on which the Services are undertaken. If a warranty is to be varied, SAPG will notify the Client of this, prior to undertaking the Services.

15.5.  SAPG liability in respect of these warranties is limited to the fullest extent permitted by law;

15.6.  If the Client is not a consumer within the meaning of the CCA, SAPG’s liability is limited to the extent permitted by this Act;

15.7.  If SAPG is required to replace Goods or redo Services under this clause or the CCA, but is unable to do so, SAPG may refund any money the Client has paid for the Service;

15.8.  If the Client is a consumer within the meaning of the CCA, SAPG liability for any defect or damage in the Service is:

15.8.1.           Limited to the value of any express warranty or warranty card provided to the Client by SAPG at SAPG’s sole discretion; or 

15.8.2.           Otherwise negated absolutely.

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

15.9.1.           the Client has complied with the provisions of clause 15; 

15.9.2.           SAPG has agreed that the Services are defective; 

15.9.3.           If relating to the return of Goods, the relevant Goods are returned within a reasonable time at the Client’s cost; and

15.9.4.           If relating to the return of Goods, the relevant Goods are returned in as close a condition to that in which they were delivered as is possible.

15.10.  Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, SAPG shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

15.10.1.         the Client failing to properly maintain the Serviced area or store the Goods;

15.10.2.         the Client using the Services or Goods for any purpose other than that for which they were designed;

15.10.3.         the Client continuing use or attempting to repair after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

15.10.4.         the Client failing to follow relevant procedures; 

15.10.5.         the Client failing to follow instructions or guidelines provided by SAPG; or

15.10.6.         fair wear and tear, any accident, or act of God.

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

15.12.            Unless otherwise stated or agreed in writing, demolished materials remain the property of the Client and materials which SAPG bring to the location where Services are undertaken which are surplus, remain the property of SAPG, unless such materials or Goods have been paid for by the Client.

 

  1. Intellectual Property

 

16.1.  Where SAPG has designed, drawn, written plans or a schedule or developed a Service for the Client, or created any products for the Client, then the copyright in any designs, drawings, plans, schedules, products and documents shall remain vested in SAPG, and shall only be used by the Client at SAPG discretion;

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

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

16.4.  The Client agrees that SAPG may also display the Client’s company or business name, logo, images or other media as part of SAPG and/or other marketing materials relating to SAPG’s Website, Social Media and Print Media, except where the Client have explicitly requested that SAPG refrains from doing this in writing; and

16.5.  The Client acknowledges that SAPG may use the Client’s name and or trading name  the public description of your Projects and the content of the Client’s profile information and the Client’s company profile on SAPG’s Website for marketing and other related purposes.

 

  1. Default and Consequences of Default

 

17.1.  Where an invoice has remained unpaid for seven (7) business days, a reminder will be sent to the Client, in writing, and an administration fee of $130.00 (exclusive of GST) or 5% of the total invoice amount (whichever is higher) will be charged to the Client and accrue on a weekly basis until all outstanding amounts are paid in full;

17.2.  If the invoice remains unpaid after the reminder has been provided, solicitors or collection agents will be engaged, and the Client agrees to indemnify SAPG for any legal and/or collection costs;

17.3.  Interest on overdue invoices shall accrue daily from the date that payment was due, until the date of payment, at a rate of 2.5 percent (2.5%) per month on any outstanding amount after as well as before any judgment;

17.4.  If the Client owes SAPG any money the Client shall indemnify SAPG from and against all costs and disbursements incurred by SAPG in recovering the debt (including but not limited to collection fees, legal costs on a solicitor and own client basis, SAPG’s contract default fee, Court or any other institution filing fees and bank dishonour fees) ;

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

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

17.6.1.           any money payable to SAPG becomes overdue, or in SAPG’s opinion the Client will be unable to make a payment when it falls due;

17.6.2.           the Client becomes insolvent, 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

17.6.3.           a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

  1. Title

 

18.1.  SAPG and the Client agree that ownership of the Goods shall not pass until:

18.1.1.           the Client has paid SAPG all amounts owing to SAPG; and

18.1.2.           the Client has met all of its other obligations to SAPG.

18.2.  It is further agreed that until ownership of the Goods passes to the Client:

18.2.1.           the Client is only a bailee of the Goods and unless the Goods have become fixtures must, return the Goods to SAPG on request;

18.2.2.           the Client holds the benefit of the Client’s insurance of the Goods on trust for SAPG and must pay to SAPG the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;

18.2.3.           the production of this agreement by SAPG shall be sufficient evidence of SAPG’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with SAPG to make further enquiries;

18.2.4.           the Client must not sell, dispose of, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for SAPG and must pay or deliver the proceeds to SAPG on demand;

18.2.5.           the Client should not convert or process the Goods 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 SAPG and must sell, dispose of or return the resulting product to SAPG as it so directs;

18.2.6.           the Goods, whether as separate chattels or as components, and the proceeds from the use or sale of the Goods, shall be stored in such a manner as to be clearly identifiable and traceable as the property of SAPG until title has passed to the Client;

18.2.7.           unless the Goods have become fixtures the Client irrevocably authorises SAPG to enter the Client’s premises or any other premises where the Goods are known to be stored without notice (and the Client must ensure that SAPG has the right to enter such premises at all times) to repossess the Goods and for this purpose the Client shall grant reasonable access rights and SAPG, shall be entitled to do all things required to secure repossession or render inoperative such Goods or associated equipment by the removal of some component, part or device there from;

18.2.8.           SAPG may recover possession of any Goods in transit whether or not delivery has occurred;

18.2.9.           the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of SAPG; and

18.2.10.            SAPG may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

 

  1. Guarantee

 

19.1.  As security for the due and punctual payment and performance of the Client’s obligations under this Agreement, the Client may be required to (at SAPG’s discretion), prior to the undertaking of Services by SAPG, provide to SAPG a guarantor (the “Guarantor”) to enter into this agreement and guarantee and indemnify SAPG on any or all of the following terms:

19.1.1.           The Guarantor unconditionally guarantees full Payment of all money owed by the Client under this Agreement and any ancillary documents and the observance and performance of all of the Client’s obligations as specified in or implied by this Agreement;

19.1.2.           The Guarantor indemnifies and must keep indemnified SAPG against any costs, expenses, claims, liabilities, losses and damaged incurred by SAPG in respect of any default by the Client under this Agreement, or arising out of any claim by any third-party relating to the terms of this Agreement;

19.1.3.           This guarantee covers all Services undertaken by SAPG, including Variations;

19.1.4.           This guarantee is in favour of SAPG and its employees, successors, assigns and agents;

19.1.5.           This guarantee extends to claims by SAPG for breaches of material terms of this Agreement and repudiation of this Agreement and to SAPG’s reasonable legal and other expenses of seeking to enforce those obligations (subject to clause 19 herein); and

19.1.6.           SAPG may require the Guarantor under this guarantee to pay to SAPG any outstanding amounts, or any other amount to compensate SAPG for any loss or damage incurred under this Agreement, without SAPG being required to institute any proceedings against the Client in respect of such claims or breaches;

19.2.  SAPG’s rights against the Guarantor are not affected by:

19.2.1.           the death, bankruptcy or winding up of the Client or Guarantor;

19.2.2.           the Client’s liability under this Agreement, any variation or any other ancillary documents, assignments or extensions of the Agreement between the Parties; or

19.2.3.           any release of the Client or any Guarantor.

19.3.               This Guarantee is to be a continuing Guarantee and will be irrevocable and will remain in full force and effect until the whole of the money payable or which may become payable pursuant to the provisions of this Agreement has been paid and until all obligations of the Client, pursuant to this Agreement, have been duly and properly observed and performed or satisfied. 

 

 

 

  1. Security and Charge

 

20.1.  In consideration of SAPG agreeing to supply the Services under this Agreement, 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) or otherwise arising from the carrying out of the works;

20.2.  The Client acknowledges and agrees that SAPG has a caveatable interest in the land from upon execution of this Agreement and that SAPG is entitled to lodge and maintain a caveat on the title to the Land notifying SAPG’s interested created by this Agreement;

20.3.  The Client agrees that upon execution of this Agreement to deliver to SAPG, a caveat in registerable form with the consent to caveat signed by the Client to lodge and maintain a caveat on the title to the land notifying SAPG in this Agreement together with a cheque in favour of the Lands Title Office for registration fee on the caveat;

20.4.  The Client agrees that SAPG is entitled to register and a lodge a caveat on the Client’s property in SAPG’s favour and that SAPG will withdraw the caveat once all moneys owing to SAPG by the Client pursuant to this Agreement are paid in full to SAPG;

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

20.6.  The Client irrevocably appoints SAPG and each director and or Trustee of SAPG as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 20 including, but not limited to, signing any document on the Client’s behalf;

20.7.  The Client acknowledges that SAPG is entitled to apply to a Court for the sale of the property for the purpose of recovering any debt that may be outstanding under this Agreement relating to building works; and

20.8.  The Client agrees it has sought and received independent legal advice in relation to this clause 20.

 

  1. Cancellation

 

21.1.  SAPG may cancel any contract to which these terms and conditions apply or cancel Service at any time before the Service is provided or delivered by giving notice to the Client. On giving such notice SAPG shall invoice the Client for any work completed up to that point and any materials purchased. The Client will have the option to purchase those materials from SAPG at cost value plus any fees charged by SAPG for delivery of those materials to an address nominated by the Client. SAPG shall not be liable for any loss or damage whatsoever arising from such cancellation.

21.2.  The Client may cancel any contract to which these terms and conditions apply. For Services in excess of $1000.00(excluding GST), the following cancellation fees apply:

21.2.1.           Within 72 hours – 15% of the total cost of the Service;

21.2.2.           Within 48 hours – 25%  of the total cost of the Service; 

21.2.3.           Within 24 hours – 50% of the total cost of the Service; or

21.2.4.           On the day- Full Cost of the service, and any additional, reasonable fees for time and travel incurred by SAPG. The above percentages do not include an administration fee for cancellation. 

21.2.5.           For Services less than $300.00 (exclusive of GST), the Client may cancel any contract to which these terms and conditions apply by giving 48 hours notice to SAPG. 

21.2.6.           If less than 24 hours of notice is given, SAPG reserves the right to charge an administration fee, and any reasonable costs for time and travel incurred by SAPG.

21.3.  SAPG reserves the right not to refund any deposit where the Client has cancelled or terminated a contract.

21.4.  If the Client cancels or terminates this agreement, SAPG reserves the right to charge an administrative fee of up to $250.00 to the Client. 

21.5.  Cancellation or termination shall only be accepted by SAPG if provided in writing. The Client shall be liable for any and all loss incurred (whether direct or indirect) by SAPG as a direct result of the cancellation (including, but not limited to, any loss of profits). 

21.6.  Cancellation of orders for Service or goods made to the Client’s specifications, or for non-stock list items, will not be accepted once production has commenced, or an order has been placed and any payment (including a deposit) will be forfeited at the sole discretion of SAPG.

 

  1. General

 

22.1.  If any one or more of the provisions contained in this agreement must, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability must not affect any other provisions of this agreement, but this agreement must be construed as if such invalid, illegal or unenforceable provisions had never been contained in this agreement, unless the deletion of such provision or provisions would result in such a material change so as to cause completion of the transactions contemplated in this agreement to be unreasonable.

22.2.  These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia, the state in which SAPG has its principal place of business and are subject to the jurisdiction of the courts in that state;

22.3.  Except as otherwise provided for in these terms and conditions, SAPG 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 SAPG of these terms and conditions (alternatively SAPG liability shall be limited to damages which under no circumstances shall exceed the Price) ;  

22.4.  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 SAPG nor to withhold payment of any invoice because part of that invoice is in dispute;

22.5.  The Client agrees that SAPG may amend these terms and conditions at any time. If SAPG makes a change to this service agreement, then that change will take effect from the date on which SAPG notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for SAPG to provide Service to the Client;

22.6.  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;

22.7.  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. 

22.8.  Each Party to this agreement must at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce;

22.9.  A failure by a party to this agreement to give notice to any other party or to take any steps in exercising any right, or in respect of the breach of or non-compliance with any provision of this agreement, is not to be construed as a waiver of that right, breach or provision nor will any single or partial exercise of any right preclude any other or future exercise of that right or the exercise of any other right, whether in law or otherwise.

22.10.  This Agreement does not and is not intended to confer any rights or remedies upon any person other than the parties;

22.11.  Each party must not make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party, or cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so and must take all reasonable steps to prevent its Representatives from doing so. However, this clause 22.11 shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable and reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party;

22.12.  Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination; 

22.13.  The obligations of the parties relating to confidentiality, non-disparagement, payment and intellectual property will survive the termination of this agreement;

22.14.  Each party warrants to the other party that it does not, and will ensure that its personnel do not, have a conflict of interest when performing their duties under this agreement. A party must promptly inform the other party of any matter which may give rise to an actual, potential or perceived conflict of interest and comply with any reasonable directions given by the other party in terms of dealing with that conflict. The failure by a party to comply with this clause will constitute a breach of a material term of this Agreement; and

22.15.  For the purposes of this clause 22.14, a conflict of interest means circumstances in which, due to a direct or indirect relationship (commercial or otherwise and including any potential relationship or opportunity or inducement and any such situation which comes into existence subsequent to the commencement of this agreement) involving one party or its personnel and another person or entity, that party is unable to discharge its obligations under this agreement to the other [arty in an objective and independent manner and to the best of its ability

 

  1. Instructions & Manuals

 

23.1.  The Client agrees and acknowledges that it has received adequate instructions (including manuals) from SAPG regarding the correct and safe use of the goods, which may include a demonstration or verbal or written instructions.

 

  1. Relationship of Parties

 

24.1.  Nothing in these terms, or any other materials relating to this agreement, infer any agency of SAPG on the Client. At all times the SAPG and the Client are considered separate parties to this agreement; and

24.2.  The Client may not enter any agreement on SAPG’s behalf.

 

  1. Damage to Property

 

25.1.  The Client agrees that if during SAPG providing Service(s) to the Client, the vegetation, pipes, landscaping, building, property owned by the Client is damaged, that SAPG will not take responsibility for such damages and the Client releases SAPG of any liability or responsibility for the damage. 

 

  1. Proper Use of Equipment

 

26.1.  The Client may not use the Goods or Service for any purpose other than that agreed to between the parties; and

26.2.  The Goods or Service provided will not be used by the Client, or any other person, for any illegal purpose, or to convey, carry manufacture, or load any illegal substances or materials. 

 

  1. Assembly / Installation

 

27.1.  If the parties agree that SAPG shall assemble/install the Goods or provide Service(s) to the Client, the Client is responsible to SAPG for performing correctly and enabling provisions and/or conditions necessary for the erection or installation goods or equipment and/or for the correct operation of the Good in assembled/installed state on time. This shall not apply if and insofar this performance is done by (order of) SAPG according to data and/or drawings made or presented by (order of) the Client;

27.2.  Without prejudice to the provisions in clause 27.1, the Client shall, if the parties have agreed that SAPG shall assemble/install the equipment to be delivered, in any case see to it at its own expense and risk that: 

27.2.1.           the employees of SAPG can commence and continue their work during normal working hours from the moment they arrive at the place of assembly/installation and, moreover, if SAPG deems it necessary, outside of normal working hours provided that the Buyer has been notified in time; 

27.2.2.           suitable accommodation and/or all provisions under law and relevant standards, the agreement and common use will be available to the employees of SAPG; 

27.2.3.           the access routes to the place of installation are suitable for the required transport; 

27.2.4.           the assigned site for installation or providing services is suitable;

27.2.5.           the required lockable storage areas for materials, tools and other items are made available; 

27.2.6.           the necessary and usual workmen, ancillary tools, auxiliary and industrial materials (fuels, oils and greases, cleaning and other small materials, gas, water, compressed air, electricity, steam, heating, lighting, etc. included), and the usual measuring and testing instruments of SAPG are in the right place at the disposal of the Client on time and free of charge; 

27.2.7.           all necessary safety and precautionary measures have been taken and shall be maintained, and that all measures have been taken and shall be maintained in order to satisfy the appropriate legislation, regulations and relevant standards with respect to assembly/installation; 

27.2.8.           any dispatched goods are at the right place at the beginning of and during the assembly/installation; and

27.2.9.           Damages and costs that arise because the conditions stated in this clause 27 have not been fulfilled on time or at all are the liability of the Client.

 

  1. Marketing

 

28.1.  The Client grants to SAPG the right to:

28.1.1.           Take photographs, film, videotape or other images of the works completed in or otherwise located at the Client’s premises, and to use, reproduce, publish, edit, modify, dispose of or otherwise deal with those images; and 

28.1.2.           Reproduce and publish the Client’s name and trademarks and disclose the fact that SAPG has provided Services or Goods to the Client. 

 

  1. Subcontracting

 

29.1.  SAPG may license or sub-contract all or any part of its rights and obligations without the Client’s consent; 

29.2.  The Client agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of SAPG;

29.3.  SAPG will endeavour to notify the Client of such license or sub-contracting; however, it is not obliged to do so;

29.4.  Any fees incurred by sub-contractors in relation to services or goods provided to the Client must be paid by the Client according to the terms of this agreement;

29.5.  SAPG makes no assertion to, nor will they be liable for any acts, omissions, or claims regarding the quality of work provided by any licensed or sub-contracted party; and

29.6.  SAPG will not be liable for any loss or damage to any person or property caused by a third party who has been licensed or sub-contracted by them.

 

 

  1. Consumer Credit Protection

 

30.1.  The Client warrants that the Goods are supplied by SAPG to a Customer for the purposes of a business, and that the provisions of the National Credit Code contained in the National Consumer Credit Protection Act 2009 (Cth) do not apply;

30.2.  If the Client purchases any Goods from SAPG for resupply as, or to incorporate any of SAPG’s Goods into goods ordinarily acquired for personal household or domestic use (Consumer Goods) the Client warrants that: 

30.3.  if a Client supplies the Consumer Goods for resupply, the Client will ensure that its terms and conditions of supply require the Client’s customers (and each person in the distribution chain) to include in their supply agreements or conditions of sale obligations requiring their customers to also exclude liability for any claims under the National Credit Code; 

30.4.  if the Client supplies the Consumer Goods directly to an end user/consumer the Client will do so using terms and conditions of supply which exclude liability for claims under the National Credit Code, but only where the end user/customer acquires the Consumer Goods for business purposes; and

30.5.  Where the Client purchases the Goods for resupply, the Client indemnifies SAPG to the maximum extent of the law for all claims arising from the resale and use by the Client’s purchaser.

 

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

 

31.1.  In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS;

31.2.  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 Goods and/or collateral (account) – being a monetary obligation of the Client to SAPG for services – that have previously been supplied and that will be supplied in the future by SAPG to the Client.

31.3.  Client further undertakes to:

31.3.1.    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 SAPG       may reasonably require to;

31.3.2.    register a financing statement or financing change statement in relation to a        security interest on the Personal Property Securities Register;

31.3.3.    register any other document required to be registered by the PPSA; or

31.3.4.    correct a defect in a statement;

31.3.5.    indemnify, and upon demand reimburse, SAPG 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 Goods     charged thereby;

31.3.6.    not register a financing change statement in respect of a security interest without the prior written consent of SAPG;

31.3.7.    not register, or permit to be registered, a financing statement or a financing         change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of SAPG; and

31.3.8.    immediately advise SAPG of any material change in its business practices of      selling the Goods which would result in a change in the nature of proceeds    derived from such sales.

30.5.1.           Immediately advise SAPG of any change in the Client’s grantor details. 

31.4.  SAPG and the Client agree that sections 96, 115 and 125 of the PPSA do not apply the security agreement created by these terms and conditions.

31.5.  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;

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

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

31.8.  The Client unconditionally ratifies any actions taken by SAPG under clause 31 subject to any express provisions to the contrary (including those contained in this clause 31) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

 

 

  1. Advice

 

32.1.  The Client agrees and acknowledges that it has received adequate instructions from SAPG; and

32.2.  The Client acknowledges it has not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by SAPG in relation to the goods or services or their use or application.

 

  1. Dispute Resolution

 

33.1.  If a dispute arises between the parties in relation to this Agreement, SAPG may deal with the dispute in accordance with this;

33.2.  Any party claiming that a dispute exists must notify the other party to the dispute (Second Party) in writing of the nature of the dispute;

33.3.  If the dispute is not resolved by agreement within five working days of the Second Party receiving the notice referred to in clause 33.2 above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further five working days or failing agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited. 

33.4.  The costs of the mediator must be borne equally between the disputing parties. The chosen mediator must determine the procedures for the mediation. The chosen mediator will not have the power or authority to make any other determination in relation to the dispute; and 

33.5.  If the parties have not mediated a resolution of the dispute within 14 days of the selection of a mediator, neither party must be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it thinks fit in relation to the dispute.

 

  1. Time for Payment of the Essence

 

34.1.  The parties agree that time is of the essence for payment to SAPG for any money arising out of or in connection with this service agreement.

 

  1. Consumer Contracts

 

35.1.  If a contract constituted by this Agreement is a ‘consumer contract’ or ‘small business contract’ (each as defined in the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL) and a term of that contract would, but for this clause be ‘unfair’ (as defined in section 24(1) of the ACL), the Client may only apply or rely upon that term to the extent that doing so is reasonably necessary to protect the Client’s legitimate interests.

 

  1. Novation

 

36.1.  SAPG may assign, transfer, novate, and otherwise deal in any manner with, all or any part of the benefit of this Agreement and any of its rights, remedies, powers, duties and obligations under this Agreement to any person, without the consent of the Client.

 

Recovery of the Goods & Right of Entry

 

36.2.  SAPG may recover possession of any Goods in transit whether or not delivery has occurred;

36.3.  SAPG may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client;

36.4.  The Client agrees to be liable for all costs incurred by SAPG in the recovery of outstanding amounts, or withheld Goods;

36.5.  Without prejudice to the rights of SAPG to recover any money owed by the Client, for payment of fees or for damages for breach of this Agreement, the Client irrevocably authorises SAPG to enter any premises where SAPG believes the Goods are kept and recover possession of the Goods; and

36.6.  The Client agrees to indemnify SAPG in respect of any claims, damages, expenses, or costs arising out of any action taken as a result of this clause.

 

  1. Legal Fees and Collection Costs

 

37.1.  To the extent not prohibited by applicable law, the Client shall:

37.1.1.    pay to SAPG on demand all expenses, including, but not limited to: 

37.1.2.    collection costs;

37.1.3.    all legal fees and expenses, and 

37.1.4.    all other expenses which may be expended by SAPG to obtain or enforce payment of Obligations either as against the Client or any guarantor or surety of the Client or in the prosecution or defence of any action or concerning any matter growing out of or connected with this Agreement, the Collateral, or any of SAPG’s rights therein or thereto, including without limiting the generality of the foregoing: 

37.1.4.1.               any counsel fees or 

37.1.4.2.               expenses incurred in any bankruptcy or insolvency proceedings and 

37.1.4.3.               all costs and expenses (including search fees) incurred or paid by SAPG in connection with the administration, supervision, protection or realization on any security held by SAPG for the debt secured hereby, whether such security was granted by the Client or by any other person primarily or secondarily liable (with or without recourse) with respect to such debt; and 

37.1.4.4.               all costs and expenses incurred by SAPG in connection with the defense, settlement or satisfaction of any action, claim or demand asserted against SAPG in connection therewith, which amounts shall be considered advances to protect SAPG’s security and shall be secured hereby. All such costs and expenses shall be deemed additional expenses.

 

  1. Reasonable Endeavors 

 

38.1.  Each Party to this Agreement must at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.

 

  1. Counterparts & Electronic Exchange

 

39.1.  This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart;

39.2.  Delivery of an executed counterpart of this Contract by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart; and

39.3.  If the Client delivers an executed counterpart of this agreement under clause 39 it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of this agreement in any legal proceedings relating to this agreement, the Client waives the right to raise any defence based upon any such failure.

 

 

  1. Entire Agreement

 

40.1.  This agreement constitutes the entire agreement between the parties relating to in any way to its subject matter, unless otherwise agreed by SAPG and the Client in writing.