Terms
Please note that a larger print version of these terms and conditions is available from the Contractor on request. #37767 © Copyright – EC Credit Control 1999 - 2021
1. Definitions
1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “Contractor” means Hott Electrics Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Hott Electrics Pty Ltd.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Contractor to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by the Contractor to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.5 "Confidential Information" includes this Contract, either party's intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including “Personal Information” such as:
name, address, D.O.B., occupation, driver's license details, electronic contact (email, Facebook, Twitter), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history, and pricing.
1.6 “Cookies” are small files stored on a computer. They hold a small amount of data (including Personal Information) specific to a client and website and can be accessed by the web server or client's computer. If the Client does not want background Cookies when ordering,
from the website, the Client shall have the right to enable/disable Cookies by selecting the option on the website before ordering Works.
1.7 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between the Contractor and the Client in accordance with clause 5 below.
1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2. Acceptance
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 places an order for or accepts delivery of any Works.
2.2 If this Contract's terms and conditions conflict with any other document or schedule previously signed by the parties, this Contract will prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client agrees that the Contractor must approve a credit application and set a credit limit before supplying Works on credit.
2.5 In the event that the supply of Works request exceeds the Clients credit limit and/or the account exceeds the payment terms, the Contractor reserves the right to refuse delivery.
2.6 The Contractor's advice, recommendation, information, assistance, or service regarding Works and Materials supplied is given in good faith, is based on the Contractor's knowledge and experience, and is accepted without liability. The Client must confirm the accuracy and reliability of the same in light of the Client's use of the Works or Materials.
2.7 If the Contractor must provide the Works urgently, which may require the Contractor's staff to work outside normal business hours (including lunch breaks, weekends, and Public Holidays), the Contractor may charge the Client additional labour costs (penalty rates will apply) unless otherwise agreed upon.
2.8 If the Contractor has been requested by the Client to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Client irrespective of whether or not the repair goes ahead.
2.9 The Client agrees that Materials may be subject to availability and that the Contractor may substitute comparable Materials (or components of the Materials) and vary the Price as per clause 5.2 if Materials are not available. The Contractor will notify the Client of any substitution in advance and may place the Client's order on hold until they agree to the changes.
2.10 If there are any discrepancies between these terms and conditions and the Contractor's Service Agreement form, the latter shall prevail.
2.11 If the parties comply 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, electronic signatures are considered accepted.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that the Contractor shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Works.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Client shall not be entitled to treat this Contract as
repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in
the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At the Contractor’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Contractor to the Client in respect of Works performed or Materials supplied; or
(b) the Contractor’s quoted Price (subject to clause 5.2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days.
5.2 The Contractor reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where hidden or unidentifiable difficulties (including poor weather, site access, machinery availability, safety considerations, prerequisite work by any third party not being completed, hard rock barriers below the surface, iron reinforcing rods in
concrete, limitations in accessing the site or hidden pipes and wiring in walls etc) which are only discovered on commencement of the Works; or
(d) in the event of increases to the Contractor in the cost of labour or Materials which are beyond the Contractor’s control.
5.3 The Contractor's quotation will determine the cost of variations, which will be detailed in writing and shown on the invoice. The Client must respond to Contractor variations within 10 working days. Failure to do so allows the Contractor to add the variation cost to the Price. All variations must be paid in full upon completion.
5.4 At the Contractor’s sole discretion a non-refundable deposit may be required.
5.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be:
(a) on completion of the Works; or
(b) via progress payments according to the Contractor's schedule. Progress payment claims may include the reasonable value of authorised variations and Materials delivered to the site but not installed;
(c) for approved Clients the date shall be fourteen (14) following the date of any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Contractor.
5.6 Payment may be made by cash, cheque, bank cheque, electronic/online banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Contractor
5.7 Any Client payment may be allocated to any invoice by the Contractor at the time of receipt or later. The Contractor may redistribute payments if the Client defaults. In the absence of a Contractor payment allocation, payment will be deemed to be allocated to preserve the maximum value of the Contractor's Purchase Money Security Interest (PPSA) in the Materials.
5.8 The Client may not set off or deduct from the Price any sums owed or claimed to be owed by the Contractor or withhold payment of any invoice due to a dispute.
5.9 GST is not included in the price. Along with the Price, the Client must pay the Contractor any GST the Contractor must pay for any supply under this or any
other Materials sale contract. The Client must pay GST at the same time and on the same basis as the Price, without deduction or setoff. The Client must also pay any additional taxes and duties not included in the Price.
6. Provision of the Works
6.1 Subject to clause 6.2 it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.
6.2 If the Contractor claims an extension of time (by giving the Client written notice) due to an event beyond the Contractor's control, such as the Client's failure to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify the Contractor that the site is ready.
6.3 At the Contractor’s sole discretion, the cost of delivery is included in the Price.
6.4 The Contractor may deliver the Works in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.5 Delivery time specified by the Contractor is an estimate only, and the Contractor is not liable for any loss or damage incurred by the Client due to late delivery. However, both parties agree to try to deliver the Works at the time and place agreed upon. If the Contractor cannot supply the Works as agreed solely due to the Client's action or inaction, the Contractor may charge a reasonable fee for re-supplying the Works later and/or storing the Materials.
7. Risk
7.1 If the Contractor retains ownership of the Materials under clause 9 then:
(a) When the Contractor supplies only Materials, the Client must insure the Materials before delivery and assume all risk. When the Contractor or the Contractor's nominated carrier delivers the Materials, they are considered delivered immediately.
carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
(b) When the Contractor supplies and installs Materials, the Contractor must maintain a contract works insurance policy until completion. The Client assumes all risk for the Works upon completion.
7.2 When the Contractor supplies and installs Materials, the Contractor must maintain a contract works insurance policy until completion. The Client assumes all risk for the Works upon completion.
7.3 The Client warrants that any structures to which the Materials are to be attached can withstand their installation and that any electrical connections (including meter boxes, main switches, circuit breakers and electrical cable) can handle the Materials once installed. The Contractor may delay the installation of Materials (in accordance with clause 6.2) until it is satisfied that the Client's property is safe for installation for any reason, including the structure not being watertight, the discovery of asbestos, defective or unsafe wiring, or dangerous access. The Contractor may agree with the Client to bring the property up to a standard suitable for installation, but any such Works and additional Materials will be charged as variations.
7.4 If asbestos or other toxic substances are found at the property, the Client must safely remove them. The Contractor will be indemnified by the Client for any costs resulting from such discovery. Under no circumstances will the Contractor remove asbestos.
7.5 The Contractor shall ensure that all Materials are installed according to industry standards. The Contractor must be notified in writing if the Client requires the Materials to be installed in a way that violates the Contractor's recommendations or industry standards. The Contractor offers no warranty on the above.
7.6 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify the Contractor immediately upon any proposed changes. The Client agrees to indemnify the Contractor against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 5.2.
7.7 The Client accepts responsibility for the suitability, quality, and defects of materials supplied by the Client for the Contractor to complete the Works. A Contractor
shall not be responsible for any defects in the materials, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Client.
7.8 The Client acknowledges and accepts that:
(a) The Contractor is only responsible for Materials replaced/supplied by the Contractor, and if other parts/goods fail, the Client agrees to indemnify the Contractor against any loss or damage to the Works or caused by the goods, or any part thereof
(b) All descriptions, illustrations, drawings, data dimensions, and weights in the Contractor's fact sheets, price lists, or advertising material are indicative only and have not been relied on;
(c) where the Contractor has performed temporary repairs that:
(i) the Contractor offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(ii) the Contractor will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair.
7.9 The Contractor is not liable for damage or performance issues with Materials used and/or maintained in accordance with the Contractor's and/or manufacturers'
recommendations.
7.10 The Client acknowledges that Materials supplied may:
(a) 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.
7.11 If the Contractor needs to store Materials, tools, etc. for the Works at the site, the Client must provide a safe area and take reasonable measures to prevent destruction, theft, or damage. If any stored items are destroyed, stolen, or damaged, the Client must pay for repair or replacement.
8. Client’s Responsibilities
8.1 Before the Contractor starts the Works, the Client must tell him where all services are on the site and mark them. The Client must identify electrical, gas, sewer, pumping, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains and any other site services. The Contractor will take all reasonable precautions to avoid damaging underground services, but the Client agrees to indemnify the Contractor for any liability claims, loss, damage, costs, and fines resulting from damage to services not precisely located and notified as per this clause 8.1.
8.2 It is the intention of the Contractor, and agreed by the Client, that it is the responsibility of the Client to:
(a) ensure that the Contractor has clear and free site access at the agreed date/s and time/s to complete the Works. The Contractor is not liable for site losses or damages (including damage to pathways, driveways, concrete, paved, or grassed areas) unless negligent;
(b) provide the Contractor with facilities, as specified by the Contractor, (including, but not limited to, a suitable free power source) for the duration of the Works.
9. Title
9.1 The Contractor and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid the Contractor all amounts owing to the Contractor; and
(b) the Client has met all of its other obligations to the Contractor.
9.2 Receipt by the Contractor 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.
9.3 It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 9.1:
(a) The Client is only a bailee of the Materials and must return them to the Contractor on request unless they have become fixtures; (b) the Client holds the benefit of the Client's insurance of the Materials on trust for the Contractor and must pay the Contractor the proceeds of any insurance in the event of loss, damage, or destruction;
(c) The Contractor's production of these terms and conditions shall be sufficient evidence of the Contractor's rights to receive the insurance proceeds directly from the insurer without any further enquiries;
(d) The Client may not sell, dispose, or otherwise transfer the Materials except in the ordinary course of business and for market value. The Client must hold the proceeds of any sale, disposition, or part with possession of the Materials on trust for the Contractor and pay or deliver them to the Contractor on demand;
(e) The Client should not convert or process the Materials or mix them with other goods, but if it does, the Client must sell, dispose of, or return the resulting product to the Contractor as directed;
(f) The Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Materials are kept and recover possession of them unless the Materials have become fixtures;
(g) the Contractor may recover possession of any Materials in transit whether or not delivery has occurred;
(h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Contractor;
(i) the Contractor may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest have the meaning given to it by the PPSA.
10.2 The Client agrees in writing that these terms and conditions constitute a security agreement for the purposes of the PPSA and create a security interest in all Materials and/or collateral (account) – a monetary obligation of the Client to the Contractor for Works – that the Contractor has supplied and will supply to the Client.
10.3 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 the Contractor 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 10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Contractor 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 the Contractor;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of the Contractor;
(e) immediately advise the Contractor 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.