Terms and Conditions of Markline Industries Pty Limited (ACN: 062 277 141) trading as
Independent Plumbing Inspections (“the Supplier”)
These Terms and Conditions (“T&Cs”), will apply to any supply of Services supplied by the Supplier to the Customer.
In these T&Cs:
“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise; “Confidential Information” means information, whether in visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to the Supplier or any related entity of the Supplier including but not limited to any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter;
“Contract” means the contract formed as a result of an acceptance of an Order by the Supplier. It includes these terms, any covering letter, quotation, estimate and any other document that refers to these terms;
“Control” has the meaning set out in the Corporations Act 2001 (Cth);
“Customer” means the customer set out in any quotation, offer or other document provided by the Supplier (or, in the absence of such information, the customer who placed the Order);
“GST” means the Goods and Services Tax as imposed by the GST Law together with any related interest, penalties, fines or other charge.
“GST Law” has the meaning given to that term in A New Tax System (Goods and Services) Act 1999 (Cth) as amended;
“Guarantor” means the Director/s of the Customer (if the Customer is a company) and the Trustee (if the Customer is a trust);
“Insolvency Event” means any of the following, or any analogous, events:
(a) the Customer disposes of the whole or any part of the Customer’s assets, operations or business other than in the ordinary course of business;
(b) the Customer ceases, or threatens to cease, carrying on business;
(c) the Customer is unable to pay the Customer’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Customer’s assets, operations or business;
(e) any step is taken for the Customer to enter into any arrangement or compromise with, or assignment for the benefit of, the Customer’s creditors or any class of the Customer’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of the Customer’s assets, operations or business;
“Intellectual Property Rights” means any present or future rights conferred by statute, common law or equity in any part of the world in relation to any confidential information, copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields;
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
“Order” means any written or verbal order by the Customer to the Supplier for Services;
“Personnel” means any employee, servant, contractor, subcontractor, agent, partner, director or officer of a party;
“Price” means the price of the Services as set out in the fee schedule contained on the Website;
“Security interest” means a security interest within the meaning of the Personal Property Securities Act 2009, and
“Services” means the services supplied by the Supplier to the Customer as described on the Website, in any invoice, quotation, estimate, sales order or any other form as provided by the Supplier to the Customer.
“Website” means www.independentplumbinginspections.com.au.
3. Acceptance of terms and placement of orders
3.1 Any Order by the Customer to the Supplier and/or any acceptance of any Services by the Customer will constitute agreement to these T&Cs by the Customer.
3.2 If the Supplier accepts an Order, the parties will have created a binding Contract and the Supplier will supply the Services to the Customer, and the Customer will pay the Price to the Supplier in accordance with the terms of the Contract (which includes these T&Cs).
3.3 If the Customer cancels any Contract, the Supplier may at its discretion require the Customer to pay to the Supplier any costs associated with the cancellation of the Contract.
3.4 The Supplier may charge, in addition to the Price, any other fees and charges that the Supplier notifies to the Customer from time to time.
3.5 The Supplier may cancel any Contract at any time prior to providing the Services with no liability other than to repay any amount of the Price paid in advance of the cancellation.
4.1 The Customer must provide the Supplier with written details of any required specifications of the Services at the time the Customer provides an Order to the Supplier.
4.2 The Customer must ensure the specifications of the Services stated in any Order by the Customer will be fit for the intended purpose of the Services.
4.3 The Supplier will be entitled to rely on the accuracy of any plans, specifications or other information provided by the Customer.
4.4 Prior to the Services being carried out the Customer must disclose to the Supplier:-
(a) Anything relevant to the supply of the Services;
(b) If the Services required are in relation to or associated with a current investigation being conducted by the Plumbing Commissioner; or
(c) if similar services are being obtained by any third party.
4.5 The Customer represents and warrants that all information and representations that the Customer has given to the Supplier are true and correct and that the Customer has not failed to disclose anything relevant to the supply of the Services.
4.6 If there are any errors in any plans, specifications or other information provided by the Customer to the Supplier, the Supplier will be entitled to vary the Price.
5.1 The Price is exclusive of GST unless otherwise stated by the Supplier in writing.
5.2 Prices displayed on the Website are current at the time of issue, but may change at any time.
5.3 The Customer must not withhold, make deductions from, or set-off, payment of any money owed to the Supplier for any reason.
6. Deposit and Payment Terms
6.1 The Customer must pay the Price and any other amounts payable to the Supplier at the time of placing the Order.
6.2 The Customer agrees to grant the Supplier a charge over the whole of the Customer’s present and future property and assets (including, without limitation, all of the Customer’s legal and beneficial interests in freehold and leasehold land, and personal property as defined in the Personal Property Securities Act 2009) as security for any amount owed by the Customer to
the Supplier. The Customer acknowledges the Supplier may lodge caveats over land or security interests on the Personal Properties Securities Register, and take any action to enforce the Supplier’s security over the charged property.
6.3 The Customer must reimburse the Supplier for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery or other expenses associated with any action by the Supplier to recover money from the Customer.
6.4 The Supplier may charge monthly compound interest on any overdue amounts owed by the Customer at a rate of 10% per annum.
7. Force Majeure
The Supplier will not be liable to the Customer for any failure to perform, or delay in performing, the Supplier’s obligations under these T&Cs if the failure or delay is due to any cause beyond the Supplier’s reasonable control .If any such failure or delay continues for a period of 14 days the Supplier may terminate any affected Contract.
8. Confidential Information and Intellectual Property
8.1 The Customer will not use, or disclose to any third party, any Confidential Information disclosed to the Customer.
8.2 No supply of Services to the Customer will grant to the Customer any Intellectual Property Rights in respect of the Services.
9.1 The Supplier does not warrant the Services are fit for any purpose whether or not made known by the Customer or any third party to the Supplier or any member of the Supplier’s Personnel.
9.2 The Supplier excludes all express and implied conditions and warranties in relation to the Services and this Agreement except those conditions or warranties that cannot be excluded by law.
9.3 Nothing in these T&Cs are intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or any equivalent Act of any State or Territory of Australia except to the extent permitted by such Acts.
10.1 The Supplier’s liability for any Liability or Claim in relation to these T&Cs, the Contract, and any supply of Services will be limited to the amount of the Price paid by the Customer to the Supplier.
10.2 The Supplier will not be liable to the Customer or any other person for any Liability or Claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any other remote, abnormal or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties.
The Customer indemnifies the Supplier and each member of the Supplier’s Personnel on a full and continuing indemnity basis from and against any Liability or Claim arising directly or indirectly in relation to:
(a) the Customer’s breach of these T&Cs or any Contract;
(b) the negligence or wilful misconduct of the Customer or any member of the Customer’s Personnel;
(c) damage to the property of the Customer or any third party during the provision of Services;
(d) the Services not being fit for any particular purpose;
(e) any tests conducted by a third party in relation to Services;
(f) the Customer or any member of the Customer’s Personnel directly or indirectly causing any delay in the supply of any Services;
(g) the Customer or any member of the Customer’s Personnel purporting to cancel a Contract.
12. Dispute Resolution
12.1 If a dispute arises between the Supplier and Customer the parties must comply with the Supplier’s dispute resolution process. To this end the party with a complaint against the other is first required to notify the other of the dispute by giving written notice specifying the nature of the dispute, the outcome required and the action believed necessary under the circumstances that will assist both in settling the dispute.
12.2 Each party will then in good faith attempt to resolve the dispute by negotiation, and if the dispute in some aspect involves payment of monies, the party withholding payment is required immediately upon receipt of the notice to deposit the disputed amount into an escrow account with instructions pertaining to the release of funds. Undisputed amounts must be paid forthwith.
The Supplier may immediately terminate, or suspend the performance of, any Contract and the Customer must immediately pay any money owed to the Supplier if:
(a) the Customer breaches a term of these T&Cs or any Contract and does not remedy the breach within 7 days;
(b) the Customer breaches a term of these T&Cs or any Contract which is not capable of remedy;
(c) there is any direct or indirect change in the Control of the Customer; or
(d) an Insolvency Event arises in relation to the Customer.
14.1 These T&Cs or any Contract may only be amended with the Supplier’s express written agreement. Any waiver by the Supplier must be express and in writing.
14.2 The Supplier’s rights under these T&Cs or any Contract do not exclude any other rights the Supplier may have at law.
14.3 If any provision of these T&Cs or any Contract is unenforceable, the provision will be severed and the remaining provisions will continue to apply.
14.4 The Customer must immediately provide written notice to the Supplier if there is any direct or indirect change in the Control of the Customer.
14.5 The Supplier may assign any rights or benefits under any Contract or these T&Cs or any Contract to any third party.
14.6 The Customer may only assign any rights or benefits under any Contract or these T&Cs or any Contract with the Supplier’s prior written consent.
14.7 These T&Cs and any Contract will be governed by the law of the state in which Supplier’s address is located.
14.8 In these T&Cs:
(a) the headings do not affect interpretation;
(b) the singular includes the plural and vice versa, and a gender includes other genders;
(c) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(d) a reference to a party to a document includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;
(e) a reference to a person includes a natural person, body corporate, partnership, trust, association or any governmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister, corporation or instrumentality or any other entity;
(f) a reference to a statute, ordinance, code or other law includes regulations, rules and other instruments under the statute, ordinance, code or other law and any consolidations, amendments, re-enactments or replacements;
(g) a word or expression defined in the Corporations Act has the meaning given to the word or expression in the Corporations Act;
(h) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;
(i) any agreement, representation, warranty or indemnity by two or more parties binds those parties jointly and severally;
(j) if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on the next business day.
15.1 In consideration of the Supplier having at the request of the Guarantor agreed to supply Services to the Customer, the Guarantor agrees with the supplier as follows:-
(a) the Guarantor unconditionally guarantees to the Supplier due and punctual payments by the Customer for all Services supplied by the Supplier to the Customer and al linterest and other charges payable by the Customer to the Supplier in accordance with the
terms agreed upon between the Supplier and the Customer (“the Debt”).
(b) The Guarantor will pay to the Supplier on demand any part of the Debt that the Customer fails to pay on the due date, whether or not the Supplier has demanded payment from the Customer.
(c) The Guarantor will indemnify the Supplier against any liability incurred by or assessed against the Supplier in connection with the supply of Services to the Customer and the recovery of moneys owing to the Supplier by the Customer including but not limited to the enforcement of this guarantee and collection and legal costs calculated on a solicitor and own client basis.
(d) If all or any part of the Debt is not or ceases to be recoverable from the Customer for any reason, then as separate, additional and severable agreement the Guarantor:
(i) unconditionally indemnifies the Supplier against all loss, damage, costs (including legal costs on a full indemnity basis) and expenses which the Supplier incurs because of any of these matters; and
(ii) will pay the amount of the loss, damage, costs or expenses to the Supplier on demand.
(e) This indemnity applies whether the relevant transactions were void from the beginning or were subsequently avoided, and even if any of the relevant facts were or should have been known to the Supplier.
(f) This Guarantee is a continuing guarantee and a continuing indemnity for the whole of the Debt and is irrevocable. It will not be discharged by any settlement of account or intervening payment while any part of the Debt remains owing.
(g) To give effect to this Guarantee the Supplier may act as though the Guarantor were a principal debtor. The Guarantor waives any rights as surety that may at any time be inconsistent with the provisions of this Guarantee or that would restrict the Supplier’s
rights under it.
(h) Where this Guarantee is given by more than one person, the obligations of the Guarantor under this Guarantee take effect as joint and several obligations and references to the Guarantor take effect as references to all those persons or any of them. No Guarantor will be released from liability under this Guarantee because:
(i) any other Guarantor named in this Guarantee does not execute this Guarantee; or
(ii) this Guarantee ceases to be binding as a continuing security on any other Guarantor; or
(iii) the Supplier releases any other Guarantor from liability under this Guarantee.
(i) The Supplier may from time to time without discharging the Guarantor from liability under this Guarantee and without notice to or the consent of the Guarantor grant time or any concession or indulgence to the Customer, compound, deal or compromises with or release the Customer in relation to all or any part of the Debt, and postpone the exercise of or enforce or refrain from enforcing any right, power, remedy or other security of or available to the Supplier in respect of the Debt.
(j) This Guarantee will at all times be valid and enforceable against the Guarantor despite:
(i) winding up, bankruptcy or death of the Customer or any other Guarantor;
(ii) the fact that no notice, claim or demand for payment has been given to or made on the Customer, or been taken against the Customer for payment;
(iii) the fact that any negotiable instrument or other security is outstanding or in circulation at the time proceedings are taken against the Guarantor under this Guarantee; or
(iv) any other matter which, but for this provision, would cause the release of the Guarantor from this Guarantee under the law relating to sureties.
(k) If any payment made to the Supplier by or on behalf of the Customer in respect of the Debt is subsequently avoided or set aside for any reason, that payment will be deemed not to have discharged or affected the Guarantor’s liability under this Guarantee. In that event, the Supplier would be restored to the position in which it would have been if the payment had not been made.
(l) The Guarantor charges in favour of the Supplier all the Guarantor’s right, title and interest in all and any present and future real and personal property owned by the Guarantor (whether alone or with any other person as a tenant in common or joint
tenant) now or at any time during the continuance of this Guarantee, to secure all money payable under these provisions.
(m) This Guarantee binds the Guarantor’s legal personal representatives and successors and enures for the benefit of the Supplier’s successors, assigns and transferees.