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Terms and Conditions

Name: Turbo Scaffolding
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Terms and Conditions

Definitions
1. "TS" means Turbo Scaffolding Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Turbo Scaffolding Pty Ltd
2. "Client" means the person/s purchasing the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
3. "Goods" means all Goods supplied either by sale to the Client by TS at the Client's request from time to time, and:
  - Includes any erection and/or dismantle of the Goods ("Services"), any parts, accessories and/or consumables supplied by TS to the Client, either separately or deposited incidentally by TS in the course of it conducting, or supplying to the Client, the Goods; and
  - Where the context so permits the terms 'Goods' or 'Services' shall be interchangeable for the other.
4. "Price" means the Price payable for the purchase of the Goods as agreed between TS and the Client in accordance with clause 4 below.
Acceptance
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 Goods, or accepts Delivery.
2. The obligations of TS to supply Goods to the Client under this agreement shall be limited to those defined within these terms and conditions. All other conditions, warranties, stipulations and undertakings, whether expressed or implied by statute or common law, are excluded. Furthermore, these terms and conditions, unless amended with TS' consent in writing, shall prevail to the extent of any inconsistency with any other document or agreement between the Client and TS,
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.
Change In Control
1. The Client shall give TS 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 TS as a result of the Client's failure to comply with this clause.
Price And Payment
1. The Client shall give TS 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 TS as a result of the Client's failure to comply with this clause.
2. At TS' sole discretion the Price shall be either;
  - As indicated on invoices provided by TS to the Client in respect of Goods supplied; or
  - The Price as at the date of Delivery, according to TS' current price list; or
3. TS' quoted Price (subject to clause 4.2) which shall be binding upon TS provided that the Client shall accept TS' quotation in writing
4. TS reserves the right to change the Price if a variation to TS' quotation is requested. Any variation from the plan of scheduled Services and/or specifications of the Goods, any variation as a result of unforeseen circumstances, such as poor weather conditions, limitations to accessing the site and safety considerations (e.g. overhead hazards, etc.), prerequisite work by any third party not being completed, any relocation and/or alteration to working platforms and/or hop up brackets (or the Goods entirely), or as a result of any increase to TS in the cost of materials and labour, fluctuations in currency exchange rates, or any Government or regulatory body imposing or increasing fees, etc.) will be charged for on the basis of TS' quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
5. At TS' sole discretion, a non-refundable deposit may be required.
6. Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by TS, which may be:
  - On, or before, Delivery;
  - By way of instalments/progress payments in accordance with TS' payment schedule;
  - Seven (7) days following the end of the month in which any invoice/s and/or statement is furnished to the Client by TS;
  - The date specified on any invoice or other form as being the date for payment; or
  - Failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice/s furnished to the Client by TS
7. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card, or by any other method as agreed to between the Client and TS.
8. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to TS an amount equal to any GST TS must pay for any supply of Goods by TS under this or any other agreement. 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.
9. Receipt by TS 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 TS' rights and ownership in relation to the Goods, and this agreement, shall continue.
Delivery
1. Delivery of the Goods ("Delivery") is taken to occur at the time that:
  - The Services are provided by TS at TS' premises; or
  - TS (or TS' nominated carrier) delivers the Goods (or provides Services) to the Client's nominated address, even if the Client is not present at the address.
2. At TS' sole discretion, the cost of Delivery is in addition to the Price.
3. The Client must take Delivery, by receipt or collection of the Goods, whenever they are tendered for Delivery. In the event that the Client is unable to take Delivery as arranged then TS shall be entitled to charge a reasonable fee for redelivery and/or storage.
4. Any time specified by TS for Delivery is an estimate only and TS 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 Goods to be supplied at the time and place as was arranged between both parties. In the event that TS is unable to supply the Goods (including any installation and/or removal thereof) as agreed solely due to any action or inaction of the Client then TS shall be entitled to charge a reasonable fee (to cover mileage and lost time hours) for re-supplying the Goods at a later time and date.
5. The Client shall ensure that TS has clear and free access to the nominated address at all times to enable them to make Delivery. TS shall not be liable for any loss or damage to the property (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas), unless due to the negligence of TS.
6. The Client shall ensure that TS has clear and free access to the nominated address at all times to enable them to make Delivery. TS shall not be liable for any loss or damage to the property (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas), unless due to the negligence of TS.
Title
1. Where is this an agreement for the purchase of the Goods:
  - TS and the Client agree that ownership of the Goods shall not pass until:
    - The Client has paid TS all amounts owing to TS; and
    - The Client has met all of its other obligations to TS.
  - it is further agreed that, until ownership of the Goods passes to the Client in accordance with sub-clause (a):
    - The Client is only a bailee of the Goods and must return the Goods to TS on request.
    - The Client holds the benefit of the Client's insurance of the Goods on trust for TS and must pay to TS the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
    - 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 TS and must pay or deliver the proceeds to TS on demand.
    - 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 TS and must sell, dispose of or return the resulting product to TS as it so directs. (v) TS may recover possession of any Goods in transit whether or not delivery has occurred.
    - TS may recover possession of any Goods in transit whether or not delivery has occurred.
    - 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 TS.
    - TS may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
2. If the Client fails to return the Goods to TS, then TS or TS' 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 Goods is situated and take possession of the Goods, without being responsible for any damage thereby caused.
Personal Property Securities Act 2009 ("PPSA")
1. In this clause financing statement, financing change statement, security agreement, and 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 constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by TS to the Client.
3. The Client undertakes to:
  - 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 TS may reasonably require to;
    - Register a financing statement or financing change statement in relation to a security interest on the Personal Property SecuritiesRegister;
    - Register any other document required to be registered by the PPSA; or
    - Correct a defect in a statement referred to in clause 7.3(a)(i) or 7.3(a)(ii);
  - Indemnify, and upon demand reimburse, TS 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;
  - Not register a financing change statement in respect of a security interest without the prior written consent of TS;
  - 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 TS;
  - Immediately advise TS 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.
4. TS 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. 7.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
7. Unless otherwise agreed to in writing by TS, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8. 7.8 The Client must unconditionally ratify any actions taken by TS under clauses 7.3 to 7.5.
9. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security And Charge
1. In consideration of TS agreeing to supply 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).
2. The Client indemnifies TS from and against all TS' costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising TS' rights under this clause.
3. The Client irrevocably appoints TS and each director of TS as the Client's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 8 including, but not limited to, signing any document on the Client's behalf.
Defects, Warranties And Returns, Competition And Consumer Act 2010 (CCA)
1. The Client must inspect the Goods on Delivery and must within seven (7) days of such time notify TS in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description 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 TS to inspect/review the Goods.
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").
3. TS acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, TS makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. TS' liability in respect these warranties is limited to the fullest extent permitted by law.
5. If the Client is a consumer within the meaning of the CCA, TS' liability is limited to the extent permitted by section 64A of Schedule 2.
6. If TS is required to replace the Goods under this clause or the CCA, but is unable to do so, TS may refund any money the Client has paid for the Goods.
7. If the Client is not a consumer within the meaning of the CCA, TS' liability for any defect or damage in the Goods is:
  - Limited to the value of any express warranty or warranty card provided to the Client by TS at TS' sole discretion;
  - Limited to any warranty to which TS is entitled, if TS did not manufacture the Goods;
  - Otherwise negated absolutely.
8. Subject to this clause 9, returns will only be accepted provided that:
  - The Client has complied with the provisions of clause 9.1; and
  - TS has agreed that the Goods are defective; and
  - The Goods are returned within a reasonable time at the Client's cost (if that cost is not significant); and
  - The Goods are returned in as close a condition to that in which they were delivered as is possible.
9. Notwithstanding clauses 9.1 to 9.8 but subject to the CCA, TS shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
  - The Client failing to properly maintain or store the Goods;
  - The Client using the Goods for any purpose other than that for which they were designed;
  - 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;
  - The Client failing to follow any instructions or guidelines provided by TS;
  - Fair wear and tear, any accident, or act of God.
10. Notwithstanding anything contained in this clause if TS is required by a law to accept a return then TS will only accept a return on the conditions imposed by that law.
Intellectual Property
1. Where TS has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of TS.
2. The Client warrants that all designs, specifications or instructions given to TS will not cause TS to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify TS against any action taken by a third party against TS in respect of any such infringement.
3. The Client agrees that TS may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which TS has created for the Client.
Compliance With Laws
1. The Client and TS shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
2. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Goods.
Default And Consequences Of Default
1. Interest 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 TS' sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. If the Client owes TS any money the Client shall indemnify TS from and against all costs and disbursements incurred by TS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TS' contract default fee, and bank dishonour fees).
3. Further to any other rights or remedies TS may have under this agreement, if the Client has made payment to TS by credit card, 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 TS under this clause 12 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client's obligations under this agreement.
4. Without prejudice to any other remedies TS may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions TS may suspend or terminate the supply of Goods to the Client (including repossessing the Goods as per clause 6.3). TS will not be liable to the Client for any loss or damage the Client suffers because TS has exercised its rights under this clause.
5. Without prejudice to TS' other remedies at law TS shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to TS shall, whether or not due for payment, become immediately payable if:
  - Any money payable to TS becomes overdue, or in TS' opinion the Client will be unable to make a payment when it falls due;
  - 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
  - A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Cancellation
1. TS may cancel any contract to which these terms and conditions apply or cancel Delivery at any time before the Goods are delivered by giving written notice to the Client. On giving such notice TS shall repay to the Client any money paid by the Client for the Goods. TS shall not be liable for any loss or damage whatsoever arising from such cancellation.
2. In the event that the Client cancels Delivery the Client shall be liable for any and all loss incurred (whether direct or indirect) by TS as a direct result of the cancellation (including, but not limited to, any loss of profits).
3. Cancellation of orders for Goods made to the Client's specifications, or for non-stocklist items, will definitely not be accepted once an order has been placed.
Privacy Act 1988
1. The Client agrees for TS 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 TS.
2. The Client agrees that TS may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
  - To assess an application by the Client; and/or
  - To notify other credit providers of a default by the Client; and/or
  - 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
  - To assess the creditworthiness of the Client including the Client's repayment history in the preceding two (2) years.
3. The Client consents to TS being given a consumer credit report to collect overdue payment on commercial credit.
4. The Client agrees that personal credit information provided may be used and retained by TS for the following purposes (and for other agreed purposes or required by):
  - The provision of Goods; and/or
  - Analysing, verifying and/or checking the Client's credit, payment and/or status in relation to the provision of Goods; and/or
  - Processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
  - Enabling the collection of amounts outstanding in relation to the Goods.
5. TS may give information about the Client to a CRB for the following purposes:
  - To obtain a consumer credit report;
  - Allow the CRB to create or maintain a credit information file about the Client including credit history.
6. The information given to the CRB may include:
  - Personal information as outlined in 14.1 above;
  - Name of the credit provider and that TS is a current credit provider to the Client;
  - Whether the credit provider is a licensee;
  - Type of consumer credit;
  - 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);
  - 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 TS has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
  - Information that, in the opinion of TS, the Client has committed a serious credit infringement;
  - Advice that the amount of the Client's overdue payment is equal to or more than one hundred and fifty dollars ($150).
7. The Client shall have the right to request (by e-mail) from TS:
  - A copy of the information about the Client retained by TS and the right to request that TS correct any incorrect information; and
  - That TS does not disclose any personal information about the Client for the purpose of direct marketing.
8. TS 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.
9. TS may give information about the Client to a CRB for the following purposes: The Client can make a privacy complaint by contacting TS via e-mail. TS 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.
Building And Construction Industry Security Of Payments Act 1999
1. At TS' sole discretion, if there are any disputes or claims for unpaid Goods then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
2. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
General
1. The failure by TS to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect TS' 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.
2. These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which the Seller has its principal place of business, and are subject to the jurisdiction of the Fairfield Court in that state.
3. Subject to clause 9, TS shall be under no liability whatsoever to the Client for any damage to property of any kind, or any economic, indirect and/or consequential loss and/or expense (including loss of profits, business, production and goodwill, etc.) suffered by the Client arising out of a breach by TS of these terms and conditions (alternatively TS' liability to the Client pursuant to these terms and conditions shall be limited to that proportion of the Client's losses which it would be just and equitable to require TS to pay, having regard to the extent of TS' liability of the same. Without prejudice to the aforementioned liability limitations, TS' maximum overall liability under or in connection with this agreement shall be limited to an amount equal to the Price).
4. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by TS nor to withhold payment of any invoice because part of that invoice is in dispute.
5. TS may license or sub-contract all or any part of its rights and obligations without the Client's consent.
6. The Client agrees that TS may amend these terms and conditions at any time. If TS makes a change to these terms and conditions, then that change will take effect from the date on which TS notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for TS to provide Goods to the Client.
7. 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.
8. The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
Terms Specifically Applicable to the Sale of Goods Only
1. Risk:
  - Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
  - If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, TS is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by TS is sufficient evidence of TS' rights to receive the insurance proceeds without the need for any person dealing with TS to make further enquiries.
  - If the Client requests TS to leave Goods outside TS' premises for collection, or to deliver the Goods to an unattended location, then such Goods shall be left at the Client's sole risk.
2. Warranty:
  - In the case of second-hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the Goods prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by TS as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that TS has agreed to provide the Client with the Goods, and calculated the Price thereof, in reliance of this sub-clause (a).
3. Returns:
  - TS may, in its absolute discretion, accept non-defective Goods for return, in which case TS may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.