ELECTRICAL & CLIMATE

Legal

General Terms and Conditionsand Security Agreement

IN CONSIDERATION of Nexus Electrical & Climate ABN 35 690 318 837 (hereinafter referred to as “NEC”) providing commercial credit facilities to the party completing the application (hereinafter referred to as “the Client”) annexed to these conditions:

  1. (i)The Client acknowledges and agrees that the following applies to and forms part of any contract for the supply of Goods and/or Services by NEC and that these General Terms and Conditions take precedence over any terms and conditions which may be contained in any document provided by the Client. Any request from the Client to NEC for the supply of Goods and/or Services shall constitute acceptance of these general terms and conditions.
  2. (ii)The Client acknowledges that where the Client consists of more than one party or entity, liability shall be joint and several.
  3. (iii)These terms and conditions, including any Credit Limits set by NEC, are effective from the date of acceptance by the Client and may be amended or superseded from time to time by notice given by NEC by any means. Unless or except specifically excluded herein, NEC and the Client retain any rights and remedies available to them in any prior or pre-existing agreement.
  4. (iv)“Goods” and/or “Collateral” shall mean all Goods and/or services supplied by NEC to the Client, or ordered by the Client but not yet supplied, and includes Goods and/or services described on any quotation, invoice, purchase order or any other document including any recommendations and advice and over which NEC may intend to register a Security Interest. “Price” shall mean the cost of the Goods as referred to in NEC’s price lists, prepared quotes and/or specific arrangements and shall be subject to change from time to time without notice.

1.Personal Property Securities Act (2009)

1.1
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
1.2
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 NEC for Services — that have previously been supplied and that will be supplied in the future by NEC to the Client.
1.3
The Client undertakes to:
  1. (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 NEC 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 1.3(a)(i) or 1.3(a)(ii);
  2. (b)indemnify, and upon demand reimburse, NEC 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;
  3. (c)not register a financing change statement in respect of a security interest without the prior written consent of NEC;
  4. (d)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 NEC;
  5. (e)immediately advise NEC 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.
1.4
NEC and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
1.5
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.
1.6
The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
1.7
Unless otherwise agreed to in writing by NEC, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
1.8
The Client shall unconditionally ratify any actions taken by NEC under clauses 1.3 to 1.5.
1.9
Subject to any express provisions to the contrary (including those contained in this clause 1) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

2.Privacy

2.1
The Client agrees for NEC to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by NEC.
2.2
The Client agrees that NEC may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
  1. (a)to assess an application by the Client; and/or
  2. (b)to notify other credit providers of a default by the Client; and/or
  3. (c)to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
  4. (d)to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
2.3
The Client consents to NEC being given a consumer credit report to collect overdue payment on commercial credit.
2.4
The Client agrees that personal credit information provided may be used and retained by NEC for the following purposes (and for other agreed purposes or required by):
  1. (a)the provision of Services; and/or
  2. (b)analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
  3. (c)processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
  4. (d)enabling the collection of amounts outstanding in relation to the Services.
2.5
NEC may give information about the Client to a CRB for the following purposes:
  1. (a)to obtain a consumer credit report;
  2. (b)allow the CRB to create or maintain a credit information file about the Client including credit history.
2.6
The information given to the CRB may include:
  1. (a)personal information as outlined in 2.1 above;
  2. (b)name of the credit provider and that NEC is a current credit provider to the Client;
  3. (c)whether the credit provider is a licensee;
  4. (d)type of consumer credit;
  5. (e)details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
  6. (f)advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and NEC has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
  7. (g)information that, in the opinion of NEC, the Client has committed a serious credit infringement;
  8. (h)advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
2.7
The Client shall have the right to request (by e-mail) from NEC:
  1. (a)a copy of the information about the Client retained by NEC and the right to request that NEC correct any incorrect information; and
  2. (b)that NEC does not disclose any personal information about the Client for the purpose of direct marketing.
2.8
NEC will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
2.9
The Client can make a privacy complaint by contacting NEC via e-mail. NEC will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

3.Price and Payment

3.1
At NEC’s sole discretion the Price shall be either:
  1. (a)as indicated on invoices provided by NEC to the Client in respect of Services performed or Goods supplied; or
  2. (b)NEC’s quoted Price (subject to clause 3.2) which shall be binding upon NEC provided that the Client shall accept NEC’s quotation in writing within thirty (30) days of the date of the quotation.
3.2
NEC reserves the right to change the Price:
  1. (a)If a variation to the Goods which are to be supplied is requested; or
  2. (b)if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
  3. (c)where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, limitations to site accessibility, availability of machinery, safety considerations, prerequisite work by a third party not completed or up to suitable standards, or hidden pipes, and wiring in walls, asbestos removal etc) which are only discovered on commencement of the Services; or
  4. (d)In the event of increases to NEC in the cost of labour or Goods which are beyond NEC’s control.
3.3
Variations will be charged for on the basis of NEC’s quotation, and will be detailed in writing, and shown as variations on NEC’s invoice. NEC shall be entitled to be paid an administration fee of 10% of the value of each variation undertaken by Nexus Electrical & Climate under this clause. The Client shall be required to respond to any variation submitted by NEC within ten (10) working days. Failure to do so will entitle NEC 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.
3.4
At NEC’s sole discretion a deposit of up to 50% of the quotation amount may be required prior to the commencement of any services.
3.5
Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by NEC, which may be:
  1. (a)on completion of the Services; or
  2. (b)before commencement of the Services; or
  3. (c)the date specified on any invoice or other form as being the date for payment; or
  4. (d)failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by NEC.
3.6
Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and NEC.
3.7
The Client agrees to pay a fee of 1.8% to the value of the payment for any and all payments made by approved credit card.
3.8
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 NEC nor to withhold payment of any invoice because part of that invoice is in dispute.
3.9
Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to NEC an amount equal to any GST NEC must pay for any supply by NEC under this or any other contract for the sale of the Goods. 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.
3.10
The price is based on work being carried out between 8 am to 4.30 pm on Mondays to Fridays, excluding days off provided for by any relevant Industrial Award or Agreement including Public Holidays, Picnic Days, Site Allowances and Rostered Days Off. If the Client requires NEC to work outside those hours, then NEC shall be entitled to be reimbursed its reasonably and substantiated additional costs incurred in relation to such outside hours worked.

4.Default and Consequences of Default

4.1
NEC reserves the right to suspend or withdraw credit facilities for any reason and at any time without notice.
4.2
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 2.0% per calendar month and interest shall be calculated monthly at such a rate after as well as before any judgment.
4.3
If the Client owes NEC any money the Client shall indemnify NEC from and against all costs and disbursements incurred by NEC in recovering the debt including but not limited to internal administration fees, collection agent commission, legal costs on a solicitor and own client basis, NEC’s contract default fee, and bank dishonour fees.
4.4
Further to any other rights or remedies NEC may have under this contract, if a Client has made payment to NEC, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by NEC under this clause 4 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
4.5
Without prejudice to NEC’s other remedies at law NEC shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to NEC shall, whether or not due for payment, become immediately payable if:
  1. (a)any money payable to NEC becomes overdue, or in NEC’s opinion the Client will be unable to make a payment when it falls due;
  2. (b)the Client has exceeded any applicable credit limit provided by NEC;
  3. (c)the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
  4. (d)a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

5.Security and Charge

5.1
In consideration of NEC agreeing to supply the Goods, 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).
5.2
The Client indemnifies NEC from and against all NEC’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising NEC’s rights under this clause.
5.3
The Client irrevocably appoints NEC and each director of NEC as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 5 including, but not limited to, signing any document on the Client’s behalf.

6.Title

6.1
NEC and the Client agree that ownership of the Goods shall not pass until:
  1. (a)the Client has paid NEC all amounts owing to NEC; and
  2. (b)the Client has met all of its other obligations to NEC.
6.2
Receipt by NEC 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.
6.3
It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 6.1:
  1. (a)the Client is only a bailee of the Goods and unless the Goods have become fixtures must return the Goods to NEC on request.
  2. (b)the Client holds the benefit of the Client’s insurance of the Goods on trust for NEC and must pay to NEC the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
  3. (c)the production of these terms and conditions by NEC shall be sufficient evidence of NEC’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with NEC to make further enquiries.
  4. (d)the Client must not sell, dispose, 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 NEC and must pay or deliver the proceeds to NEC on demand.
  5. (e)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 NEC and must sell, dispose of or return the resulting product to NEC as it so directs.
  6. (f)unless the Goods have become fixtures the Client irrevocably authorises NEC to enter any premises where NEC believes the Goods are kept and recover possession of the Goods.
  7. (g)NEC may recover possession of any Goods in transit whether or not delivery has occurred.
  8. (h)The Client will not charge or grant an encumbrance on Goods or give away any interest in the Goods while they remain the property of NEC.
  9. (i)NEC may start proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

7.Risk

7.1
If NEC retains ownership of the Goods under clause 6 then:
  1. (a)where NEC is supplying Goods only, all risk for the Goods shall immediately pass to the Client on delivery and the Client must insure the Goods on or before delivery. Delivery of the Goods shall be deemed to have taken place immediately at the time that either: (i) the Client or the Client’s nominated carrier takes possession of the Goods at NEC’s address; or (ii) the Goods are delivered by NEC or NEC’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
  2. (b)where NEC is to both supply and install Goods then NEC shall maintain a contract services insurance policy until the services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Client.
7.2
Notwithstanding the provisions of clause 7.1 if the Client specifically requests NEC to leave Goods outside NEC’s premises for collection or to deliver the Goods to an unattended location then such Goods shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all. In the event that such Goods are lost, damaged or destroyed then replacement of the Goods shall be at the Client’s expense.
7.3
In conjunction with the provisions of clause 7.2 the Client authorizes NEC right to claim insurance monies direct from the Client’s insurer.
7.4
The plans, specifications (including CAD plans) and other information provided by the Client to NEC are accurate. The Client acknowledges and agrees that in the event that any plans, specifications (including CAD plans) or information provided by the Client are inaccurate:
  1. (a)NEC accepts no responsibility or liability for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information;
  2. (b)NEC is entitled to suspend or terminate the supply of Goods or Services to the Client if there is a material change to the scope of Services as a result of inaccurate plans, specifications or other information or should any unforeseen circumstance occur during the Services;
  3. (c)the Client shall be liable for NEC’s costs of de-mobilisation or re-mobilisation of any plant, equipment or staff to or from the site, upon the re-commencement of the Services at the site, if applicable; and
  4. (d)NEC will not be liable to the Client for any loss or damage the Client suffers because NEC has exercised its rights under this clause.
7.5
NEC shall not be liable whatsoever for any loss or damage to the Goods and or Services (including, but not limited to, painted surfaces) that is caused by any other tradesmen.
7.6
Where the Client has supplied Goods for NEC to complete the Services, the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the Goods. NEC shall not be responsible for any defects in the Goods, any loss or damage to the Services (or any part thereof), howsoever arising from the use of Goods supplied by the Client.
7.7
The Client acknowledges that Goods supplied may:
  1. (a)Reduce in volume, fade or change colour over time; and
  2. (b)expand, contract or distort as a result of exposure to heat, cold, weather; and
  3. (c)mark or stain if exposed to certain substances; and
  4. (d)be damaged or disfigured by impact or scratching; and
  5. (e)show variations of texture and surface finish. Whilst NEC will make every effort to match sales samples to the finished Goods NEC accepts no liability whatsoever: (i) where such samples differ to the finished Goods supplied; or (ii) for any loss, damages or costs howsoever arising resulting from any texture and surface finish between different batches of product.

8.Delivery

8.1
NEC shall not be liable for any loss or damage, including consequential loss or damage, arising from delay in delivery or failure to deliver Goods, either whole or in part, due to circumstances beyond its control, or if delivery is expressly requested and the address, date and time is arranged, in the event of Goods being delivered to an unattended address.
8.2
All times and dates specified for delivery are an estimate only.
8.3
The cost of delivery is in addition to the price as quoted.
8.4
Goods will be delivered to the Client by NEC’s nominated carrier.
8.5
The cost of any re-delivery and or storage of Goods will be at the Client’s expense.

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

9.1
The Client must inspect all Goods on delivery (or the Services on completion) and must within fourteen (14) days of delivery notify NEC in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods/Services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow NEC to inspect the Goods or to review the Services provided.
9.2
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).
9.3
NEC acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
9.4
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, NEC makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Services. NEC’s liability in respect of these warranties is limited to the fullest extent permitted by law.
9.5
If the Client is a consumer within the meaning of the CCA, NEC’s liability is limited to the extent permitted by section 64A of Schedule 2.
9.6
If NEC is required to replace any Goods under this clause or the CCA, but is unable to do so, NEC may refund any money the Client has paid for the Goods.
9.7
If NEC is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then NEC may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Goods which have been provided to the Client which were not defective.
9.8
If the Client is not a consumer within the meaning of the CCA, NEC’s liability for any defect or damage in the Goods is:
  1. (a)limited to the value of any express warranty or warranty card provided to the Client by NEC at NEC’s sole discretion;
  2. (b)limited to any warranty to which NEC is entitled, if NEC did not manufacture the Goods;
  3. (c)otherwise negated absolutely.
9.9
Subject to this clause 9, returns will only be accepted provided that:
  1. (a)the Client has complied with the provisions of clause 16; and
  2. (b)NEC has agreed that the Goods are defective; and
  3. (c)the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
  4. (d)the Goods are returned in as close a condition to that in which they were delivered as is possible.
9.10
Notwithstanding clauses 9.1 to 9.9 but subject to the CCA, NEC shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
  1. (a)the Client failing to properly maintain or store any Goods;
  2. (b)the Client using the Goods for any purpose other than that for which they were designed;
  3. (c)the Client continuing to use any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
  4. (d)interference with the Services by the Client or any third party without NEC’s prior approval;
  5. (e)the Client failing to follow any instructions or guidelines provided by NEC;
  6. (f)fair wear and tear, any accident, or act of God.
9.11
NEC may in its absolute discretion accept non-defective Goods for return in which case NEC may require the Client to pay a re-stocking and handling fee of up to 20% of the value of the returned Goods plus any freight costs.
9.12
Notwithstanding anything contained in this clause if NEC is required by a law to accept a return then NEC will only accept a return on the conditions imposed by that law.
9.13
The Client understands that if any Goods supplied by NEC are second hand the following will apply:
  1. (a)NEC are not responsible in any way for second hand Goods sold by them, and, in particular, are not responsible for any faults or defects in any second hand Goods purchased.
  2. (b)The Client understands and accepts that no warranty applies to second hand Goods unless specified by NEC.
  3. (c)The Client understands that the responsibility is theirs with respect to the safe use of second hand Goods and to ensure all safety devices are installed and checked by a competent authority before they are used.
  4. (d)The Client understands when no safety devices are installed on second hand Goods, it is their responsibility to make all necessary enquiries and as to whether such devices are needed and if needed, have installed in compliance with all standards of safety and ensuring the safety standards comply with the relevant occupational health and safety requirements.
  5. (e)If the Client sells the second hand Goods purchased, they will advise the buyer that no warranty applies.
  6. (f)NEC shall not be liable for any defects, malfunctions, claims for loss, damage or injury of any kind whatsoever, whether to the Client or to any party purchasing second hand Goods from the Client.

10.Cancellation

10.1
Without prejudice to any other remedies NEC may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions NEC may suspend or terminate the supply of Services to the Client.
10.2
NEC will not be liable to the Client for any loss or damage the Client suffers because NEC has exercised its rights under this clause.
10.3
NEC may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice NEC shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to NEC for Services already performed. NEC shall not be liable for any loss or damage whatsoever arising from such cancellation.
10.4
In the event that the Client cancels the delivery of Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by NEC as a direct result of the cancellation (including, but not limited to, any loss of profits).
10.5
Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

11.Intellectual Property

11.1
Where NEC has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of NEC. Under no circumstances may such designs, drawings and documents be used without the express written approval of NEC.
11.2
The Client warrants that all designs, specifications or instructions given to NEC will not cause NEC to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify NEC against any action taken by a third party against NEC in respect of any such infringement.
11.3
The Client agrees that NEC may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which NEC has created for the Client.

12.Jurisdiction

12.1
This agreement shall be construed in accordance with laws of the State of South Australia and, where applicable the Commonwealth of Australia and the Client submits to the non-exclusive jurisdiction of the courts in South Australia.
12.2
NEC shall otherwise have the exclusive right to nominate the Court in which any legal action is to be commenced and conducted.

13.Acceptance

13.1
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 Services.
13.2
These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and NEC.
13.3
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.

14.Errors and Omissions

14.1
The Client acknowledges and accepts that NEC shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
  1. (a)resulting from an inadvertent mistake made by NEC in the formation and/or administration of this contract; and/or
  2. (b)contained in/omitted from any literature (hard copy and/or electronic) supplied by NEC in respect of the Services.
14.2
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 willful misconduct of NEC; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

15.Change in Control

15.1
The Client shall give NEC 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 NEC as a result of the Client’s failure to comply with this clause.

16.Provision of the Services

16.1
Subject to clause 16.2 it is NEC’s responsibility to ensure that the Services start as soon as it is reasonably possible.
16.2
The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that NEC claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond NEC’s control, including but not limited to any failure by the Client to:
  1. (a)make a selection; or
  2. (b)have the site ready for the Services; or
  3. (c)notify NEC that the site is ready.
16.3
At NEC’s sole discretion, the cost of delivery is included in the Price.
16.4
Any time specified by NEC for delivery of the Services is an estimate only and NEC 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 Services to be supplied at the time and place as was arranged between both parties. In the event that NEC is unable to supply the Services as agreed solely due to any action or inaction of the Client, then NEC shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date, and/or for storage of the Goods.

17.Client Responsibilities

17.1
It is the intention of NEC and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding to enable the Services to be undertaken (where in NEC’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.
17.2
The Client agrees to remove any furniture, furnishings or personal Goods from the vicinity of the Services and agrees that NEC shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.

18.Access

The Client shall ensure that NEC has clear and free access to the site at all times to enable them to undertake the Services. NEC shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of NEC.

19.Compliance with Laws

19.1
The Client and NEC shall comply with the provisions of all statutes, regulations and by laws of government, local and other public authorities that may be applicable to the Services, including, but not limited to, applicable Building Codes.
19.2
The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
19.3
The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.

20.Building and Construction Industry Security of Payments Act 2009

20.1
At NEC’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 2009 may apply.
20.2
Nothing in this contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2009 of South Australia, except to the extent permitted by the Act where applicable.

21.Service of Notices

21.1
Any written notice given under this contract shall be deemed to have been given and received:
  1. (a)by handing the notice to the other party, in person;
  2. (b)by leaving it at the address of the other party as stated in this contract;
  3. (c)by sending it by registered post to the address of the other party as stated in this contract;
  4. (d)if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
  5. (e)if sent by email to the other party’s last known email address.
21.2
Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

22.Trusts

22.1
If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not NEC may have notice of the Trust, the Client covenants with NEC as follows:
  1. (a)the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
  2. (b)the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
  3. (c)the Client will not without consent in writing of NEC (NEC will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events: (i) the removal, replacement or retirement of the Client as trustee of the Trust; (ii) any alteration to or variation of the terms of the Trust; (iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.

23.Force Majeure

Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

24.General

24.1
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
24.2
Subject to clause 14, NEC shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by NEC of these terms and conditions (alternatively NEC’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
24.3
NEC may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
24.4
The Client cannot licence or assign without the written approval of NEC.
24.5
NEC may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of NEC’s sub-contractors without the authority of NEC.
24.6
The Client agrees that NEC may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for NEC to provide Services to the Client.
24.7
Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.
24.8
NEC shall have public liability insurance of at least $5m. It is the Client’s responsibility to ensure they are similarly insured.
24.9
Subject to the provisions of Sale of Goods Act 1923 — Section 42 and notwithstanding that the property in the Goods may have passed to the Client, should the Client be indebted to NEC any Goods left for repair as such has by implication of law:
  1. (a)a lien on the Goods for the price while NEC is in possession of them,
  2. (b)in case of the insolvency of the Client a right of stopping the Goods in transit after NEC has parted with the possession of them,
  3. (c)a right of resale as limited by this Act.
24.10
This contract is binding upon the parties hereto and upon their respective successors and permitted assigns.

Schedule

Guarantee and Indemnity

IN CONSIDERATION OF Nexus Electrical & Climate ABN 35 690 318 837 (hereinafter referred to as “NEC”) granting the Client (as named in the Application for Credit and which forms a part of this document) trade credit, I/WE GUARANTEE payment to NEC of all monies and performance of all obligations including any past, present and future indebtedness or obligation by the Client or any of us arising from any past, present future dealing with NEC.

I/WE HEREBY AGREE & ACKNOWLEDGE:

  • That this is a continuing guarantee and,
  • To indemnify NEC against all loss or damage arising from any past, present future dealing with the Client or any of us,
  • That our liability under this guarantee is joint and several and will not be affected, waived or discharged by the reason of any time or indulgences granted by NEC or any grant to any of the guarantors of a release whether in whole or in part from any obligation contained in or implied by this guarantee and indemnity and,
  • That our liability under this guarantee shall not be affected, waived or discharged by the Client entering into a Deed of Supplier Arrangement (DOCA) or by NEC voting in favor of or against, or abstaining from voting, in relation to any proposal by the Client to enter a DOCA and,
  • That this guarantee becomes binding on such of us that sign this guarantee irrespective of whether or not all intended signatories execute this guarantee and,
  • That NEC is entitled to recover against a Guarantor without having first taken steps to recover against the Client or any other Guarantor and,
  • That this guarantee may not be unilaterally revoked by me or any of us and remains in force until such time as I/we receive written confirmation from NEC that we are released from our obligations and liabilities under this guarantee.
  • That any payment which is subsequently avoided by any law relating to insolvency shall be deemed not to have been paid and,
  • That I/we indemnify NEC against losses or costs that it may suffer as a result of disgorging monies to a liquidator of the Client and,
  • That I/we sign in both our personal capacity and as Trustee of every Trust of which I/we are Trustee and/or a beneficiary and,
  • That I/we consent to NEC effecting a registration on the PPSA register (in any manner NEC deems appropriate) in relation to any security interest arising under or in connection with or contemplated by these terms and,
  • That I/we waive my/our right to receive notice of a verification statement in relation to any registration on the register and,
  • That I/we must promptly do any act or thing that NEC requires to ensure that NEC’s interest is a perfected security interest and has priority over all of the other security interests and,
  • That I/we will not register a financing change statement in respect of the security interest without NEC’s prior written consent and,
  • That NEC may, at its absolute discretion, apply any amounts received from me/us toward amounts owing to NEC in such order as NEC may determine and,
  • That if Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising in connection with these terms, I/we agree that the following provisions of the PPSA will not apply to the enforcement of these terms: section 95 (notice of removal of accession), to the extent that it requires NEC to give a notice to the Client; section 96 (when a person with an interest in the whole may retain an accession); subsection 121(4) (enforcement of liquid assets — notice to grantor); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal), to the extent that it requires NEC to give a notice to the Client; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); subsection 134(1) (retention of collateral); section 135 (notice of retention); section 142 (redemption of collateral); and, section 143 (reinstatement of security agreement) and,
  • That notices or documents required or permitted to be given to NEC for the purposes of the PPSA must be given in accordance with the PPSA and,
  • That NEC will not disclose information of the kind mentioned in subsection 275(1) of the PPSA except in circumstances required by paragraphs 275(7)(b)-(e) and,
  • I/We must, upon demand, reimburse NEC for all costs and/or expenses incurred or payable by NEC in relation to registering or maintaining any financing statement or any other document in respect of any security interest or releasing in part or in whole NEC’s security interest and,
  • In these terms, the following words have the respective meanings given to them in the PPSA: commingled, financing statement, financing change statement, perfected, proceeds, register, registration, security interest and verification statement.

I/WE HEREBY CHARGE in favor of NEC all our estate and interest in any land and in any other assets, whether tangible or intangible, freehold or leasehold, in which I/we now have any legal or beneficial interest or in which I/we later acquire any such interest, with payment of all monies owed by the Client to NEC. I/we shall, upon demand, execute such documents in registrable form, or do such other things as NEC requests to give further or better effect to the security granted by me/us to NEC and I/we consent to the lodging by NEC of a caveat or caveats which note its interest in or over any such land or other caveatable property. In the event that I/we should neglect or fail to deliver the requested instrument of security or consent, I/we hereby appoint NEC to be my/our lawful attorney for the purpose of executing and registering such instruments.

I/WE FURTHER AGREE that this agreement shall be governed by and construed in accordance with the laws of the State of South Australia and, where applicable, the Commonwealth of Australia, and I/WE submit to the non-exclusive jurisdiction of the courts of South Australia.

Notice of Disclosure of Your Credit Information to a Credit Reporting Agency

I/We acknowledge and give consent that NEC may make enquiries as to the credit and financial situation of any of us and further consent to the use of any information obtained as a result of those enquiries, including information disclosed in the Credit Application, as NEC reasonably sees fit from time to time, and for the duration of this agreement, including but not limited to:

  • passing the information on to a credit reporting agency
  • passing the information on to a debt collector
  • obtaining further personal information relating to any of us from another body for any use reasonably connected with provision of credit or the collection of debt subject to the provisions of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 which amends the Privacy Act 1988 (Cth).
  • the consent hereby given shall remain in force until all monies owing have been paid in full and the Client no longer has an open account with NEC.

General

  • “I” and “we” and “us” means each of the Guarantors jointly and severally.
  • “PPSA” and “Goods” have the meaning ascribed to them in the Application for 30 Day Credit Account which forms a part of this document.
  • The invalidity or unenforceability of any provision of this Guarantee and Indemnity shall not affect the validity or enforceability of the remaining provisions.
  • Clerical errors are subject to correction and do not bind NEC.

Small Business applicants are advised that, should any of the Terms or Conditions contained herein be considered by them to be ‘unfair’, they should contact Nexus Electrical & Climate to further discuss and negotiate before proceeding with the application.

Nexus Electrical & Climate reserves the right to refuse credit to any Applicant without explanation.

Nexus Electrical & Climate reserves the right to suspend or withdraw credit facilities at any time without notice. Special Note: if the Client acts as, or is part of, a Trust/Nominee Entity then the provision of personal guarantee/s from the Trust Beneficiary/Beneficiaries is required to process this application.