TERMS AND CONDITIONS
1.1 "Steele" means “Steele Build Pty Ltd” ABN 61 626 857 010, its successors and assigns or any person acting on behalf of and with the authority of Steele Build Pty Ltd;
1.2 "Contract" means the written and signed agreement between Steele and the Client for supply of Goods and Services;
1.3 "Client" means the person/s paying for the Goods or Services as specified in any Contract, invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally;
1.4 "Goods” means the articles, goods, material or part thereof to be supplied under the Contract;
1.5 "Services” means the services to be performed under the Contract;
1.6 "Price” means the total amount of money payable for the Goods and/or Services as agreed between Steele and the Client in accordance with clause 4 below;
1.7 "GST” means Goods and Services Tax.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client renders the services of Steele.
2.2 These terms and conditions may only be amended with Steele’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Steele.
2.3 The Client acknowledges and agrees that it is their responsibility to obtain any necessary approvals or permits from local council or government for the Services. Steele shall not be held liable for the Client’s failure to comply with this clause.
3. Change in Control
3.1 The Client shall give Steele 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, or business practice). The Client shall be liable for any loss incurred by Steele as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 The Price shall be either:
(a) in accordance with any Contract signed by Steele and the Client; or
(b) as indicated on any invoice provided by Steele to the Client;
4.2 Steele reserves the right to change the Price if a variation to Steele’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to Steele 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, poor weather conditions, limitations to accessing the site, hard rock barriers below the surface or iron reinforcing rods in concrete, obscured building defects, safety considerations, availability of machinery, change in design and/or specifications, prerequisite work by any third party not being completed) will be charged for on the basis of the Contract and will be shown as variations on the invoice.
4.3 At Steele’s sole discretion a non-refundable deposit may be required.
4.4. The Price will be payable by the Client on the date/s determined by Steele, which may be:
(a) the date which is thirty (30) days following the date of any invoice given to the Client by Steele; or
(b) the date for payment specified on the Contract.
4.5 Unless otherwise stated the Price does not include GST. 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.
5.1 Risk of damage to or loss of the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Steele is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Steele is sufficient evidence of Steele’s rights to receive the insurance proceeds without the need for any person dealing with Steele to make further enquiries.
5.3 Steele reserves the right to refuse to enter the site to undertake the Services in the event that Steele believes the site to be unsafe. In this event, the Client agrees that it is their responsibility to ensure the site is made safe before Steele will enter the site, Steele shall not be liable for any delays caused, loss, damages, or costs however resulting from an unsafe site.
5.4 Steele shall not be held responsible for any damage to the Goods or delays to delivery caused by outside agents. Where the Client requests Steele to repair such damage then Steele reserves the right to charge the Client for any costs incurred in rectifying such damage.
6. Client's Responsibilities
6.1 It is the Client's responsibility to;
(a) have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule;
(b) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by Steele in this regard; and
(c) provide adequate dust sheets to protect the Client's furniture and décor; and
(d) supply power to within eight (8) metres of the project; and
(e) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the schedule agreed to between Steele and the Client, any additional costs will be invoiced to the Client as an extra.
6.2 The Client acknowledges that in the event asbestos or any other toxic substances are discovered at the worksite that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify Steele against any costs incurred by Steele as a consequence of such discovery. Under no circumstances will Steele handle removal of asbestos product.
7.1. The Client acknowledges that:
(a) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in Steele’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the Contract, unless expressly stated as such in writing by Steele;
(b) while Steele may have provided information or figures to the Client regarding the performance of the Goods, the Client acknowledges that Steele has given these in good faith and based on prescribed estimates which may be inaccurate due to factors out of Steele’s control (including, but not limited to, the location (geographical or otherwise) of the Goods);
(c) some buildings may not have the optimum orientation for the installation of the Goods and/or Services or components, and therefore understands and accepts that the Goods performance may be compromised in such situations. Notwithstanding the former, Steele will use its best endeavours to install and position the Goods to maximise performance.
7.2 The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
8.1 The Client shall ensure that Steele has clear and free access to the work site at all times to enable them to undertake the Services. Steele 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 Steele.
9. Title to Goods
9.1 Steele and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Steele all amounts owing to Steele; and
(b) the Client has met all of its other obligations to Steele.
9.2 Payment will not be deemed satisfied until the money is in Steele's nominated bank account.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client, the Client is only a bailee of the Goods and must return the Goods to Steele on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Steele and must pay to Steele the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) 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 Steele and must pay or deliver the proceeds to Steele on demand.
(d) the Client irrevocably authorises Steele to enter any premises where Steele believes the Goods are kept and recover possession of the Goods
(e) Steele may recover possession of any Goods in transit whether or not delivery has occurred.
(f) 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 Steele.
(g) Steele may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
10. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
10.1 The Client must inspect the Goods upon completion of works and within seven (7) days notify Steele in writing of any evident defect/damage, shortage in quantity, or failure to comply with the Contract or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Steele to inspect the Goods.
10.2 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).
10.3 Steele acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
10.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Steele makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Steele’s liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5 If Steele is required to replace the Goods under this clause or the CCA, but is unable to do so, Steele may refund any money the Client has paid for the Goods.
10.6 If the Client is a consumer within the meaning of the CCA, Steele’s liability is limited to the extent permitted by section 64A of Schedule 2.
10.7 If the Client is not a consumer within the meaning of the CCA, Steele’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by Steele at Steele’s sole discretion;
(b) limited to any warranty to which Steele is entitled, if Steele did not manufacture the Goods;
(c) otherwise negated absolutely.
10.8 Subject to this clause 10, returns will only be accepted provided that:
(a) the Client has complied with the provisions of this clause; and
(b) Steele has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
10.9 Steele shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Steele;
(e) fair wear and tear, any accident, or act of God.
10.10 Notwithstanding anything contained in this clause if Steele is required by a law to accept a return then Steele will only accept a return on the conditions imposed by that law.
11. Overdue Invoices and Interest
11.1 Invoices on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Steele’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12. Termination for Insolvency or Breach
12.1 Without prejudice to its rights at common law, Steele may by notice in writing to the Client terminate the Contract if the Client:
(a) becomes bankrupt or insolvent, being a partnership, becomes dissolved, makes an assignment of its estate for the benefit of creditors or enters into any arrangement or composition with its creditors or has a receiver or receiver and manager appointed, goes into liquidation, passes a resolution to go into liquidation, otherwise than for the purpose of reconstruction, or becomes subject to any petition or proceedings in a court for its compulsory winding up or becomes subject to supervision of a court either voluntarily or otherwise, or suffers any execution against its assets; or
(i) to adhere to the payment terms defined in the Contract to ensure the due and proper completion of the Contract; or
(ii) to take action to remedy a breach or any other obligation under the Contract within seven (7) days of being given notice by Steele requiring the Client to remedy the breach; or
(iii) assigns its rights otherwise than in accordance with the requirements of the Contract.
12.2 When, before termination of the Contract under clause 12.1, Steele has made any payments in advance on account of Goods in accordance with meeting Contract obligations, the total amount of payments made must be repaid by the Client to Steele on termination and, if not repaid is recoverable by Steele from the Client as a debt.
12.3 If the Contract is terminated under this clause:
(a) the parties are relieved from future performance, without prejudice to any right of action that has occurred at the date of termination;
(b) rights to recover damages are not affected; and
(c) and the Client owes Steele any money the Client shall indemnify Steele from and against all costs and disbursements incurred by Steele in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Steele’s Contract default fee, and bank dishonour fees).
13. Dispute Resolution
13.1 If a dispute arises between the parties to this Contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
14. Compliance with Laws
14.1 The Client and Steele shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
14.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
14.3 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.
15. Privacy Act 1998
15.1 The Client agrees for Steele 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 Steele.
15.2 The Client agrees that Steele may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(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
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
15.3 The Client consents to Steele being given a consumer credit report to collect overdue payment on commercial credit.
15.4 The Client agrees that personal credit information provided may be used and retained by Steele for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
15.5 Steele may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
15.6 The information given to the CRB may include:
(a) personal information as outlined above;
(b) name of the credit provider and that Steele is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(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);
(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 Steele has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Steele, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
15.7 The Client shall have the right to request (by e-mail) from Steele:
(a) a copy of the information about the Client retained by Steele and the right to request that Steele correct any incorrect information; and
(b) that Steele does not disclose any personal information about the Client for the purpose of direct marketing.
15.8 Steele 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 agreement or is required to be maintained and/or stored in accordance with the law.
15.9 The Client can make a privacy complaint by contacting Steele via e-mail. Steele 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.
16. Building and Construction Industry Security of Payment
16.1 At Steele’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 Payment Act 2002 (Victoria), Building and Construction Industry Security of Payments Act 1999 (New South Wales), Construction Contracts Act 2004 (Western Australia), Building and Construction Industry Payments Act 2004 (Queensland), Construction Contracts (Security of Payments) Act (Northern Territory of Australia), Building and Construction Industry Security of Payments Act 2009 (Tasmania), Building and Construction Industry Security of Payments Act 2009 (South Australia) and Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.
16.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 16 each as applicable, except to the extent permitted by the Act where applicable.
17.1 The failure by Steele to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Steele’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.
17.2 These terms and conditions and any Contract to which they apply shall be governed by the laws of the state of South Australia in which Steele has its principal place of business, and are subject to the jurisdiction of the courts in that state.
17.3 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 Steele nor to withhold payment of any invoice because part of that invoice is in dispute.
17.4 Steele may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.5 The Client agrees that Steele may amend these terms and conditions at any time. If Steele makes a change to these terms and conditions, then that change will take effect from the date on which Steele notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Steele to provide Goods to the Client.
17.6 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.
17.7 The Client warrants that it has the power to enter into this Contract and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this Contract creates binding and valid legal obligations on it.
17.8 The Client confers discretion to Steele to make project decisions in a tradesmen like manner when details of the project are ambiguous due to a lack of planning.
17.9 Any and all materials supplied and installed by sub-contractors engaged by Steele are owned by sub-contractors, with title passing to Steele upon release of payment to the sub-contractor.