1.“JLT” shall mean JLT Renovations Pty Ltd (As Trustee For The Reed Family Trust), its successors and assigns or any person acting on behalf of and with the authority of JLT Renovations Pty Ltd (As Trustee For The Reed Family Trust).
2. “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by JLT to the Client.
3. “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
4. “Materials” shall mean all Materials supplied by JLT to the Client (and where the context so permits shall include any supply of Works as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by JLT to the Client.
5. “Works” shall mean all Works supplied by JLT to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Materials as defined above).
6. “Price” shall mean the Price payable for the Materials as agreed between JLT and the Client in accordance with clause 4 of this contract.
The Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)
1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2. Where the Client buys Materials as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
1. Any instructions received by JLT from the Client for the supply of Materials and/or the Client’s acceptance of Materials supplied by JLT shall constitute acceptance of the terms and conditions contained herein.
2. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3. Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of JLT.
4. The Client shall give JLT not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by JLT as a result of the Client’s failure to comply with this clause.
5. Materials are supplied by JLT only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
Price and Payment
1. At JLT’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by JLT to the Client in respect of Materials supplied; or
(b) JLT’s quoted Price (subject to clause 4.2) which shall be binding upon JLT provided that the Client shall accept JLT’s quotation in writing within ninety (90) days.
2. JLT reserves the right to change the Price in the event of a variation to JLT’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable such as asbestos removal, inaccurate measurements provided by the Client or as a result of increases to JLT in the cost of materials and labour) will be charged for on the basis of JLT’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3. At JLT’s sole discretion:
(a) a non-refundable deposit may be required; or
(b) payment shall be due on delivery of the Materials; or
(c) payment shall be due before delivery of the Materials; or
(d) detailed progress payment claims may be submitted by JLT, in accordance with JLT’s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed.
4. Time for payment for the Materials shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
5. Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and JLT.
6. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Delivery of Materials
1. At JLT’s sole discretion delivery of the Materials shall take place when:
(a) the Client takes possession of the Materials at the Client’s nominated address (in the event that the Materials are delivered by JLT or JLT’s nominated carrier); or
(b) the Client’s nominated carrier takes possession of the Materials in which event the carrier shall be deemed to be the Client’s agent.
2. At JLT’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Client’s account.
3. The Client shall make all arrangements necessary to take delivery of the Materials whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Materials as arranged then JLT shall be entitled to charge a reasonable fee for redelivery.
4. Delivery of the Materials to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5. The failure of JLT to deliver shall not entitle either party to treat this contract as repudiated.
6. JLT shall not be liable for any loss or damage whatsoever due to failure by JLT to deliver the Materials (or any of them) promptly or at all, where due to circumstances beyond the control of JLT.
1. If JLT retains ownership of the Materials nonetheless, all risk for the Materials passes to the Client on delivery.
2. If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Client, JLT is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by JLT is sufficient evidence of JLT’s rights to receive the insurance proceeds without the need for any person dealing with JLT to make further enquiries.
3. Where the Client expressly requests JLT to leave Materials outside JLT’s premises for collection or to deliver the Materials to an unattended location then such Materials shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all.
4. Where JLT is required to install the Materials the Client warrants that the structure of the premises in or upon which these Materials are to be installed or erected is sound and will sustain the installation and work incidental thereto and JLT shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
5. Timber and Stone being natural products and as such colour, shade tone, markings, and veining may vary from colour samples provided. Whilst JLT will make every effort to match sale samples to the finished Materials supplied but will not be liable in any way whatsoever for any variances that may occur as described below. The Client acknowledges that Materials supplied may:
(a) exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
1. The Client shall ensure that JLT has clear and free access to the installation site at all times to enable them to undertake the works. JLT shall not be liable for any loss or damage to the site unless due to the negligence of JLT.
2. The Client agrees that they will not give instructions to JLT’s sub-contractors or to any of JLT’s agents at the installations site. Any requests, advice or feedback must be discussed directly with JLT.
1. The Client agrees to indemnify JLT from any damage caused by any outside agent during and after the completion of the Works. If the Client instructs JLT to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at JLT’s normal hourly rate per clause 4.2.
2. Whilst JLT will take all care to avoid damage to any hidden Works the Client agrees to indemnify JLT in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to Works not precisely located and notified as per clause 9.1.
2. In the event that JLT discovers Asbestos/Hazardous Materials whilst undertaking any works JLT shall immediately advise the Client of the same and shall be entitled to suspend the works pending a risk assessment in relation to those materials. The Client shall be liable for all additional costs incurred by JLT (howsoever arising) as a result of the discovery of Asbestos/Hazardous Materials and/or any suspension of works in relation thereto.
3. Where JLT agrees to remove any Asbestos/Hazardous Materials on the Client’s behalf then the Client shall be liable for all costs incurred by JLT in the removal and disposal those materials.
4. Both the Client and JLT agree that they will at all times ensure that they comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including occupational health and safety laws relating to building/construction sites, and any other relevant safety standards or legislation, particularly those in relation to Asbestos/Hazardous Materials and the safe removal and disposal of the same.
(a) the Client has paid JLT all amounts owing for the particular Materials; and
(b) the Client has met all other obligations due by the Client to JLT in respect of all contracts between JLT and the Client.
2. Receipt by JLT 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 JLT’s ownership or rights in respect of the Materials shall continue.
3. It is further agreed that:
(a) where practicable the Materials shall be kept separate and identifiable until JLT shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Materials shall pass from JLT to the Client JLT may give notice in writing to the Client to return the Materials or any of them to JLT. Upon such notice the rights of the Client to obtain ownership or any other interest in the Materials shall cease; and
(c) JLT shall have the right of stopping the Materials in transit whether or not delivery has been made; and
(d) if the Client fails to return the Materials to JLT then JLT or JLT’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Materials are situated and take possession of the Materials; and
(e) the Client is only a bailee of the Materials and until such time as JLT has received payment in full for the Materials then the Client shall hold any proceeds from the sale or disposal of the Materials, up to and including the amount the Client owes to JLT for the Materials, on trust for JLT; and
(f) the Client shall not deal with the money of JLT in any way which may be adverse to JLT; and
(g) the Client shall not charge the Materials in any way nor grant nor otherwise give any interest in the Materials while they remain the property of JLT; and
(h) JLT can issue proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials may not have passed to the Client; and
(i) until such time that ownership in the Materials passes to the Client, if the Materials are converted into other products, the parties agree that JLT will be the owner of the end products.
Personal Property Securities Act 2009 (“PPSA”)
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Client and JLT by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
(i) all Materials previously supplied by JLT to the Client (if any);
(ii) all Materials that will be supplied in the future by JLT to the Client.
3. The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which JLT 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 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, JLT for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of JLT;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of JLT; and
(e) immediately advise JLT of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
4. JLT 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.
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.
6. The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
7. Unless otherwise agreed to in writing by JLT, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
8. The Client shall unconditionally ratify any actions taken by JLT under clauses 12.3 to 12.5.
Security and Charge
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to JLT or JLT’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that JLT (or JLT’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should JLT elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify JLT from and against all JLT’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint JLT or JLT’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
2. Materials will not be accepted for return other than in accordance with 14.1 above.
2. The conditions applicable to the warranty given by clause 15.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Materials; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by JLT; or
(iii) any use of any Materials otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and JLT shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without JLT’s consent.
(c) in respect of all claims JLT shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
3. For Materials not manufactured by JLT, the warranty shall be the current warranty provided by the manufacturer of the Materials. JLT shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.
2. The Client warrants that all designs or instructions to JLT will not cause JLT to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify JLT against any action taken by a third party against JLT in respect of any such infringement.
3. The Client agrees that JLT may use any documents, designs, drawings or Materials created by JLT for the purposes of advertising, marketing, or entry into any competition.
Default and Consequences of Default
2. In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by JLT.
3. If the Client defaults in payment of any invoice when due, the Client shall indemnify JLT from and against all costs and disbursements incurred by JLT in pursuing the debt including legal costs on a solicitor and own client basis and JLT’s collection agency costs.
4. Without prejudice to any other remedies JLT may have, if at any time the Client is in breach of any obligation (including those relating to payment) JLT may suspend or terminate the supply of Materials to the Client and any of its other obligations under the terms and conditions. JLT will not be liable to the Client for any loss or damage the Client suffers because JLT has exercised its rights under this clause.
5. If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
6. Without prejudice to JLT’s other remedies at law JLT shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to JLT shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to JLT becomes overdue, or in JLT’s opinion the Client will be unable to meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
2. In the event that the Client cancels delivery of Materials the Client shall be liable for any loss incurred by JLT (including, but not limited to, any loss of profits) up to the time of cancellation.
3. Cancellation of orders for Materials made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
Privacy Act 1988
(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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
3. The Client consents to JLT being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
4. he Client agrees that personal credit information provided may be used and retained by JLT for the following purposes (and for other purposes as shall be agreed between the Client and JLT or required by law from time to time):
(a) the provision of Materials; and/or
(b) the marketing of Materials by JLT, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Materials; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Materials.
5. JLT may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
6. The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that JLT is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of JLT, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by JLT has been paid or otherwise discharged.
Compliance with Laws
1. The Client and JLT shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.
2. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
3. The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
Building and Construction
1. At JLT’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.
2. Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.
3. These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Victoria.
4. JLT 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 JLT of these terms and conditions.
5. In the event of any breach of this contract by JLT the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Materials.
6. 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 JLT nor to withhold payment of any invoice because part of that invoice is in dispute.
7. JLT may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
8. The Client agrees that JLT may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which JLT notifies the Client of such change. The Client shall be under no obligation to accept such changes except where JLT supplies further Materials to the Client and the Client accepts such Materials.
9. 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.
10. The failure by JLT to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect JLT’s right to subsequently enforce that provision.