Nebco Pty Ltd ATF BDL Trust T/A RTL Plumbing
ABN 68 489 628 849 – QBCC Licence No 1054714
49 Michael Street, Bulimba QLD 4171
Ph: (07) 3399 2203 – Fax: (07) 3399 9050
Conditions and Agreements:
1.1 “Plumber” shall mean Nebco Pty Ltd ABN 68 489 628 849 as trustee for the BDL Trust and trading as Reynolds Trezona Lister (RTL Plumbing) its successors and assigns or any person acting on behalf of and with its written authority.
1.2 “Owner” shall mean the Owner or any person acting on behalf of and with the written authority of the Owner.
1.3 “Work” shall mean all Works (including the supply of Materials) undertaken by the Plumber and described in this contract and includes any advice or recommendations.
1.4 “Materials” shall mean Materials required to complete the Works.
1.5 “Prime Cost Item” shall mean an item that either has not been selected, or whose Price is not known, at the time this contract is entered into and for the cost of supply and delivery of which the Plumber must make a reasonable allowance in the contract.
1.6 “Provisional Sum” shall mean an estimate of the cost of carrying out particular Works under this contract for which the Plumber, after making all reasonable inquiries, cannot give a definite Price at the time this contract is entered into.
1.7 “Price” shall mean the Price of the Works as agreed between the Plumber and the Owner.
2.1 In the event that the Owner requests a variation the Plumber will give the Owner a written variation document detailing the Works, the amended Price, the estimated time to undertake the variation, and the likely delay, if any, and require written acceptance by the Owner of the variation before commencing Work on the variation.
2.2 In the event that the Plumber requests a variation, the Plumber will, in writing;
(a) state the reason for the variation; and
(b) provide a full description of the variation; and
(c) state any effect the variation will have on the contract, including but not limited to, the Price, completion date and whether further permits or authorisations are required.
2.3 Other than for the events outlined in clause 3.4 the Plumber shall obtain written acceptance by the Owner of any variation submitted by the Plumber before commencing Work on the variation.
2.4 The Plumber may carry out any necessary Works In the event of;
(a) unforeseeable problems with the site which are only revealed when undertaking the Works which the Plumber considers should be rectified for the safe completion of the Works; or
(b) any Works that the Plumber considers are required to be undertaken urgently and it is not reasonably practicable to obtain written acceptance from the Owner before commencing the variation: or
(c) the Plumber being instructed to undertake extra Works by any person authorised by the Building Act 1975
Any such additional Works are to be treated as a variation. However if a Price is not agreed upon then the Owner will be charged at the Plumber’s actual cost plus twenty (20%) percent for the Works.
3. Price And Payment
3.1 Time for payment for the Works shall be of the essence and will be stated on the invoice. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.2 The Plumber may submit a detailed payment claim at intervals not less than one (1) month for Work performed up to the end of each month. The value of Work so performed shall include the value of authorised variations, and the value of Materials delivered to the site but not installed.
3.3 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Owner and the Plumber.
3.4 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in the building contract schedule.
4. Delivery Of Works
4.1 Subject to clause 5.2 it is the Plumber’s responsibility to ensure that the Works start as soon as it is reasonably possible.
4.2 The Works commencement date will be put back and the building period extended by whatever time is reasonable in the event that the Plumber claims an extension of time (by giving the Owner written notice) where completion is delayed by an event beyond the Plumber’s control, including but not limited to any failure by the Owner to:
(a) make a selection; or
(b) have the site ready for installation; or
(c) notify the Plumber that the site is ready.
4.3 The failure of the Plumber to deliver shall not entitle either party to treat this contract as repudiated.
4.4 The Plumber shall not be liable for any loss or damage whatever due to failure by the Plumber to deliver the Works (or any of them) promptly or at all.
5.1 If the Plumber retains property in the Works nonetheless all risk for the Works passes to the Owner on delivery.
5.2 The Plumber shall have public liability insurance of at least $5m. It is the Owners responsibility to ensure that they are similarly insured. In the event that the Owner instructs the Plumber to insure the product against loss or damage occurring after it is delivered to the site or to similarly insure the Owner’s property whilst the product is being installed on the site, the Owner will be charged the Plumbers actual cost of insuring plus another 20% for arranging such insurance.
6.1 The Owner shall inspect the Works on delivery and shall within fourteen (14) days of delivery notify the Plumber in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Owner shall afford the Plumber an opportunity to inspect the Works within a reasonable time following delivery. If the Owner shall fail to comply with these provisions the Works shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
6.2 For defective Works which the Plumber has agreed in writing that the Owner is entitled to reject, the Plumber’s liability is limited to either (at the Plumber’s discretion) replacing the Works, or repairing the Works, within twenty eight (28) days of notification provided that the Owner has complied with the provisions of clause 7.1.
7. Owner’s Responsibility
7.1 It is the intention of the Plumber and agreed by the Owner that;
(a) any building/construction sites will comply with all Queensland occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation; and
(b) the Plumber is not responsible for the removal of rubbish from or clean up of the building/construction site/s. This is the responsibility of the Owner or the Owner’s agent.
8. Work By The Owner
8.1 Subject to clause 9.2 in the event that the Owner is to provide appliances or other services for which the plumbing Works are required then the Owner must have the site ready and appliances available at least twenty-four (24) hours before the time stated by the Plumber to install the product/s or provide the Works.
8.2 In the event that the Owner has not complied with the provisions of clause 9.1, any additional Works necessary to provide, supply or install the services or appliances is a variation and clause 3 applies. However if a Price is not agreed upon then the Owner will be charged at the Plumber’s actual cost plus 20% for the Works.
9. Surplus Materials
9.1 Unless otherwise stated elsewhere in this contract;
(a) only suitable new Materials will be used;
(b) demolished Materials remain the Owner’s property; and
(c) Materials which the Plumber brings to the site which are surplus remain the property of the Plumber.
10.1 It is the intention of the Plumber and agreed by the Owner that Ownership of Materials shall not pass until:
(a) the Owner has paid all amounts owing for the particular Materials, and
(b) the Owner has met all other obligations due by the Owner to the Plumber in respect of all contracts between the Plumber and the Owner.
10.2 Receipt by the Plumber 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 the Plumber’s Ownership or rights in respect of Materials shall continue.
10.3 It is further agreed that:
(a) where practicable the Materials shall be kept separate and identifiable until the Plumber shall have received payment and all other obligations of the Owner are met; and
(b) until such time as Ownership of the Materials shall pass from the Plumber to the Owner the Plumber may give notice in writing to the Owner to return the Materials or any of them to the Plumber. Upon such notice the rights of the Owner to obtain Ownership or any other interest in the Materials shall cease; and
(c) the Plumber shall have the right of stopping the Materials in transit whether or not delivery has been made; and
(d) if the Owner fails to return the Materials to the Plumber then the Plumber or the Plumber’s agent may enter upon and into land and premises owned, occupied or used by the Owner, or any premises as the invitee of the Owner, where the Materials are situated and take possession of the Materials.
(e) the Owner is only a bailee of the Materials and until such time as the Plumber has received payment in full for the Materials then the Owner shall hold any proceeds from the sale or disposal of the Materials on trust for the Plumber; and
(f) the Owner shall not deal with the money of the Plumber in any way which may be adverse to the Plumber; and
(g) the Owner shall not charge the Materials in any way nor grant nor otherwise give any interest in the Materials while they remain the property of the Plumber; and
(h) the Plumber can issue proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials may not have passed to the Owner.
11.1 To the extent required by the Domestic Building Contracts Act 2000, the Plumber warrants that:
(a) the Works shall be carried out in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract schedule;
(b) all Materials supplied be good and, having regard to the relevant criteria, suitable for the purpose for which they are used and that, unless otherwise stated in this contract, those Materials will be new;
(c) the Works will be carried out in accordance with all relevant laws and legal requirements (including, but not limited to, the Building Act 1975 and the Plumbing & Drainage Act 2002);
(d) the Works will be carried out in an appropriate and skilful way, with reasonable skill and care;
(e) if the Works consists of the construction of a detached dwelling or are intended to renovate, alter, extend, improve or repair a home to a stage suitable for occupation, that the detached dwelling or home will be suitable for occupation when the Works are finished; and
(f) if the contract states the particular purpose for which the Works are required, or the result which the Owner wishes the Works to achieve (so as to show that the Owner relies on the Plumber’s skill and judgement) then the Works and any Materials will be reasonably fit for that purpose or will be of such a nature and quality that they might reasonably be expected to achieve that result.
(g) each provisional sum item allowance, if calculated by the Plumber, has been calculated with reasonable skill and care, having regard to all the information reasonably available when this contract is entered into (including information about the nature and location of the site).
11.2 Clause 12.1(b) does not apply if the Plumber is subject to the direction of the Owner’s architect for the supply of Materials, or the Owner is responsible for nominating the Materials and either:
(a) there are no reasonable grounds for not using the Materials, or
(b) there are reasonable grounds for not using the Materials and the Plumber advises the Owner as such in writing and the Owner still insists on the Materials been being used.
11.3 For Material not manufactured by the Plumber the warranty shall be the current warranty provided by the manufacturer of the Material. The Plumber shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.
12. Intellectual Property
12.1 Where the Plumber has designed, drawn or written plans or a schedule of Works for the Owner, then the copyright in those plans, schedules, designs and drawings shall remain vested in the Plumber, and shall only be used by the Owner at the Plumber’s discretion.
12.2 The Owner warrants that all designs or instructions to the Plumber will not cause the Plumber to infringe any patent, registered design or trademark in the execution of the Owner’s order.
13. The Commonwealth Trade Practices Act 1974, Building Act 1975, and Fair Trading Acts
13.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974, Building Act 1975, or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
14.1 The Plumber must be given uninterrupted access to the site to undertake the Works.
14.2 It is the Owners responsibility to provide the Plumber, while we are at the site, with adequate access to available water, electricity, toilet and washing facilities.
15. Provisional Sums
15.1 Each Provisional Sum item must be listed in the schedule and have an allowance stated next to it for the Price of the supply of the Works. The Owner must pay the actual price of any Works and, where the Price is more than the allowance, the margin specified in the schedule applied to that difference.
16. Default & Consequences of Default
16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
16.2 If the Owner defaults in payment of any invoice when due, the Owner shall indemnify the Plumber from and against all costs and disbursements incurred by the Plumber in pursuing the debt including legal costs on a solicitor and own client basis and the Plumber’s collection agency costs.
16.3 Without prejudice to any other remedies the Plumber may have, if at any time the Owner is in breach of any obligation (including those relating to payment) the Plumber may suspend or terminate the supply of Works to the Owner. The Plumber will not be liable to the Owner for any loss or damage the Owner suffers because the Plumber exercised its rights under this clause.
16.4 If any account remains overdue after thirty (30) days then an amount of $200 shall be levied for administration fees which sum shall become immediately due and payable.
16.5 Without prejudice to the Plumber’s other remedies at law the Plumber shall be entitled to cancel all or any part of any order of the Owner which remains unperformed and all amounts owing to the Plumber shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Plumber becomes overdue, or in the Plumber’s opinion the Owner will be unable to meet its payments as they fall due; or
(b) the Owner 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 Owner or any asset of the Owner.
17.1 In the event that the Plumber is in serious breach of their obligations, the Owner may give a written request to remedy the breach within fourteen (14) days. If the breach is not remedied within that time, the Owner may then terminate this contract by giving the Plumber written notice.
17.2 In the event that the Plumber becomes insolvent, the Owner may, by giving written notice, terminate this contract. For the purposes of this clause to be insolvent shall mean;
(a) any act of bankruptcy under the Bankruptcy Act by a natural person;
(b) the appointment of a liquidator, provisional liquidator, receiver, receiver and manager, or the entering into of a deed of arrangement if a corporation; or
(c) any act of insolvency.
17.3 If a contract is ended under this clause, the Plumber is entitled to a reasonable Price for the Work carried out under the contract to the date the contract is ended. However, the Plumber may not recover more than the Plumber would have been entitled to recover under the contract.
18. Privacy Act 1988
18.1 The Owner agrees for the Plumber to obtain from a credit reporting agency a credit report containing personal credit information about the Owner in relation to credit provided by the Plumber.
18.2 The Owner agrees that the Plumber may exchange information about the Owner with those credit providers either named as trade referees by the Owner or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Owner; and/or
(b) to notify other credit providers of a default by the Owner; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Owner is in default with other credit providers; and/or
(d) to assess the credit worthiness of the Owner.
18.3 The Owner consents to the Plumber being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
18.4 The Owner agrees that personal credit information provided may be used and retained by the Plumber for the following purposes and for other purposes as shall be agreed between the Owner and Plumber or required by law from time to time:
(a) provision of Works; and/or
(b) marketing of Works by the Plumber, its agents or distributors in relation to the Works; and/or
(c) analysing, verifying and/or checking the Owner’s credit, payment and/or status in relation to provision of Works; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Owner; and/or
(e) enabling the daily operation of Owner’s account and/or the collection of amounts outstanding in the Owner’s account in relation to the Works.
18.5 The Plumber may give information about the Owner to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Owner; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Owner.
19.1 If any provision of this contract shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
19.3 The Plumber shall be under no liability whatever to the Owner for any indirect loss and/or expense (including loss of profit) suffered by the Owner arising out of a breach by the Plumber of this contract.
19.4 In the event of any breach of this contract by the Plumber the remedies of the Owner shall be limited to damages. Under no circumstances shall the liability of the Plumber exceed the Price of the Works.
19.5 The Owner shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Owner by the Plumber.
19.6 The Plumber may license or sub-contract all or any part of its rights and obligations without the Owner’s consent. The Owner agrees and understands that they have no authority to give any instruction to any of the Plumber’s sub-Plumbers without the authority of the Plumber.
19.7 The Plumber reserves the right to review this contract at any time. If, following any such review, there is to be any change to this contract, then that change will take effect from the date on which the Plumber notifies the Owner of such change.
19.8 Neither party shall be liable for any default due to any act of God, war, terrorism, fire, flood, drought, storm or other event beyond the reasonable control of either party.
19.9 The failure by the Plumber to enforce any provision of this contract shall not be treated as a waiver of that provision, nor shall it affect the Plumber’s right to subsequently enforce that provision.
19.10 This contract, the plans and specifications have precedence in that order if there is any inconsistency between them.