1.1 “EDC” shall mean EDC Solutions Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of EDC Solutions Pty Ltd.
1.2 “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 EDC to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Works” shall mean all Works undertaken by EDC at the request of the Client (and where the context so permits shall include any supply of Materials as hereinafter defined), as described on the invoices, quotation, work authorisation or any other forms as provided by EDC to the Client and includes any advice or recommendations.
1.5 “Materials” shall mean Materials:
(a) required to complete the Works; and/or
(b) supplied by EDC 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, order or any other forms as provided by EDC to the Client.
1.6 “Price” shall mean the Price payable for the Materials as agreed between EDC and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by EDC from the Client for the supply of Materials and/or the Client’s acceptance of Works undertaken (Materials supplied) by EDC shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 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 EDC.
3.4 The Client shall give EDC 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 EDC as a result of the Client’s failure to comply with this clause.
3.5 Works are undertaken (Materials are supplied) by EDC 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.
4.1 In the event that the Client requests a variation all such requests shall be made in writing.
4.2 In the event that EDC requests a variation, EDC 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.
4.3 Other than for the events outlined in clause 4.4 EDC shall obtain written acceptance by the Owner of any variation submitted by EDC before commencing Work on the variation.
4.4 In the event of;
(a) unforeseeable problems with the site which are only revealed when undertaking the Works which EDC considers should be rectified for the safe completion of the Works; or
(b) EDC being instructed to undertake extra Works by any person authorised by statute or bylaw; or
(c) for any overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges; or
(d) for increases to EDC in the cost of Materials and labour:
then EDC may carry out any Works needed to fix any such problem/s or carry out any such instructions. Any such additional Works necessary are to be treated as a variation. However if a Price is not agreed upon then the Client will be charged at EDC’s actual cost plus twenty percent (20%) for the Works.
5. Price and Payment
5.1 At EDC’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by EDC to the Client in respect of Materials supplied; or
(b) EDC’s quoted Price (subject to clause 4) which shall be binding upon EDC provided that the Client shall accept EDC’s quotation in writing within thirty (30) days.
5.2 At EDC’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 EDC, in accordance with EDC’s specified payment schedule at intervals not less than weekly for work performed up to the end of each week. 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.
5.3 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.
5.4 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to five percent (5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and EDC.
5.5 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.
6. Delivery of Materials
6.1 At EDC’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 EDC or EDC’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.
6.2 At EDC’s sole discretion the costs of delivery are included in the Price.
6.3 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 EDC shall be entitled to charge a reasonable fee for redelivery.
6.4 Subject to clause 6.5 it is EDC’s responsibility to ensure that the Works start as soon as it is reasonably possible.
6.5 The Works commencement date will be put back and the completion extended to whatever time is reasonable in the event that EDC claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond EDC’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for installation; or
(c) notify EDC that the site is ready.
6.6 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.
6.7 EDC may deliver the Materials by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.8 The failure of EDC to deliver shall not entitle either party to treat this contract as repudiated.
6.9 EDC shall not be liable for any loss or damage whatsoever due to failure by EDC to deliver the Materials (or any of them) promptly or at all, where due to circumstances beyond the control of EDC.
7.1 If EDC retains ownership of the Materials nonetheless, all risk for the Materials passes to the Client on delivery.
7.2 If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Client, EDC is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by EDC is sufficient evidence of EDC’s rights to receive the insurance proceeds without the need for any person dealing with EDC to make further enquiries.
7.3 In the event that EDC discovers asbestos/hazardous materials whilst undertaking any works EDC 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 (howsoever arising) incurred by EDC as a result of the discovery of asbestos/hazardous materials and/or any suspension of works in relation thereto.
7.4 Where EDC agrees to remove any asbestos/hazardous materials on the Client’s behalf then the Client shall be liable for all costs incurred by EDC in the removal and disposal those materials.
7.5 Both the Client and EDC 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.
7.6 The Client accepts and acknowledges that EDC shall not be accept any responsibility for any damage that may arise during the installation of power points, switches or data ports, in the event that any third party contractor employed by the Client has removed any or all reference to the positioning of power points, switches or data ports by either plastering or erecting gib board over the designated area. The Client accepts that installation of power points, switches or data ports will then be at the sole discretion of EDC. If the Client believes that they have any claim in relation to Works undertaken by that third party then said claim must be made against the third party contractor in the first instance.
7.7 EDC is not responsible for the removal of rubbish from or clean-up of the building/constructions site/s. This is the responsibility of the Client or the Client’s agent.
8. Surplus Materials
8.1 Unless otherwise stated elsewhere in this contract:
(a) Only suitable new Materials will be used;
(b) demolished Materials remain the Client’s property; and
(c) Materials which EDC brings to the site which are surplus remain the property of EDC.
9.1 EDC shall not be liable for any loss or damage caused in accessing the work site beyond reasonable control of EDC (including, ceiling tiles and panels, face brickwork and rendered masonry services) which EDC may have to break into or disturb in performance of the Works, unless due to the negligence of EDC.
10. Underground Locations
10.1 Prior to EDC commencing any work the Client must advise EDC of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, Telstra cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
10.2 Whilst EDC will take all care to avoid damage to any underground services the Client agrees to indemnify EDC in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 10.1.
11. Other Tradesman
11.1 The Client agrees to indemnify EDC from any damage caused by any other tradesman during and after the completion of the Works. If the Client instructs EDC to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at EDC’s normal hourly rate per clause 4.
12.1 EDC and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid EDC all amounts owing for the particular Materials; and
(b) the Client has met all other obligations due by the Client to EDC in respect of all contracts between EDC and the Client.
12.2 Receipt by EDC 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 EDC’s ownership or rights in respect of the Materials shall continue.
12.3 It is further agreed that:
(a) where practicable the Materials shall be kept separate and identifiable until EDC 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 EDC to the Client EDC may give notice in writing to the Client to return the Materials or any of them to EDC. Upon such notice the rights of the Client to obtain ownership or any other interest in the Materials shall cease; and
(c) EDC 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 EDC then EDC or EDC’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 EDC 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 EDC for the Materials, on trust for EDC; and
(f) the Client shall not deal with the money of EDC in any way which may be adverse to EDC; 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 EDC; and
(h) EDC 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 EDC will be the owner of the end products.
13. Defects, Errors and Omissions
13.1 The Client shall inspect the Works on completion (or Materials on delivery) and shall within seven (7) days (time being of the essence) notify EDC of any alleged defect, error or omission, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford EDC an opportunity to inspect the Works (Materials) within a reasonable time following such notification if the Client believes the Works (Materials) are defective in any way. If the Client shall fail to comply with these provisions the Works (Materials) shall be presumed to be free from any defect or damage. For defective Works (Materials), which EDC has agreed in writing that the Client is entitled to reject, EDC’s liability is limited to either (at EDC’s discretion) replacing the Works (Materials), rectifying the Works or repairing the Materials except where the Client has acquired Works (Materials) as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Works (Materials), rectification of the Works, replacement of the Works (Materials), or repair of the Materials.
13.2 At the sole discretion of EDC, Materials will not be accepted for return other than in accordance with 13.1 above.
14.1 Subject to the conditions of warranty set out in clause 14.2 EDC warrants that if any defect in any workmanship of EDC becomes apparent and is reported to EDC within twelve (12) months of the date of delivery (time being of the essence) then EDC will either (at EDC’s sole discretion) replace or remedy the workmanship.
14.2 The conditions applicable to the warranty given by clause 14.1 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 EDC; 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 EDC shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without EDC’s consent.
(c) in respect of all claims EDC 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.
14.3 For Materials not manufactured by EDC, the warranty shall be the current warranty provided by the manufacturer of the Materials. EDC 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.
14.4 To the extent permitted by statute, no warranty is given by EDC as to the quality or suitability of the Materials for any purpose and any implied warranty, is expressly excluded. EDC shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.
14.5 The conditions applicable to the warranty given on Materials supplied by EDC are contained on the “Warranty Card” that will be supplied with the Materials.
14.6 In the case of second hand Materials, the Client acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by EDC as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. EDC shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.
15. Intellectual Property
15.1 Where EDC has designed, drawn or written Materials for the Client, then the copyright in those designs and drawings and documents shall remain vested in EDC, and shall only be used by the Client at EDC’s discretion.
15.2 The Client warrants that all designs or instructions to EDC will not cause EDC to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify EDC against any action taken by a third party against EDC in respect of any such infringement.
15.3 The Client agrees that EDC may utilise images of Materials designed, created or drawn by EDC for the purposes of advertising, marketing, or entry into any competition.
16. Default and 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 two and a half percent (2.5%) per calendar month (and at EDC’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by EDC.
16.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify EDC from and against all costs and disbursements incurred by EDC in pursuing the debt including legal costs on a solicitor and own client basis and EDC’s collection agency costs.
16.4 Without prejudice to any other remedies EDC may have, if at any time the Client is in breach of any obligation (including those relating to payment) EDC may suspend or terminate the supply of Materials to the Client and any of its other obligations under the terms and conditions. EDC will not be liable to the Client for any loss or damage the Client suffers because EDC has exercised its rights under this clause.
16.5 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.
16.6 Without prejudice to EDC’s other remedies at law EDC shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to EDC shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to EDC becomes overdue, or in EDC’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.
17. Security and Charge
17.1 Despite anything to the contrary contained herein or any other rights which EDC may have howsoever:
(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 EDC or EDC’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 EDC (or EDC’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 EDC elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify EDC from and against all EDC’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 EDC or EDC’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 17.1.
18. Dispute Resolution
18.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
19.1 EDC may cancel any contract to which these terms and conditions apply or cancel delivery of Materials at any time before the Materials are delivered by giving written notice to the Client. On giving such notice EDC shall repay to the Client any sums paid in respect of the Price. EDC shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.2 In the event that the Client cancels delivery of Materials the Client shall be liable for any loss incurred by EDC (including, but not limited to, any loss of profits) up to the time of cancellation.
19.3 Cancellation of orders for Materials made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
20. Privacy Act 1988
20.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for EDC to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by EDC.
20.2 The Client agrees that EDC may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
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.
20.3 The Client consents to EDC being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
20.4 The Client agrees that personal credit information provided may be used and retained by EDC for the following purposes (and for other purposes as shall be agreed between the Client and EDC or required by law from time to time):
(a) the provision of Materials; and/or
(b) the marketing of Materials by EDC, 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.
20.5 EDC 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.
20.6 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 EDC 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 EDC, 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 EDC has been paid or otherwise discharged.
21. Unpaid EDC’s Rights
21.1 Where the Client has left any item with EDC for repair, modification, exchange or for EDC to perform any other Service in relation to the item and EDC has not received or been tendered the whole of the Price, or the payment has been dishonoured, EDC shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while EDC is in possession of the item;
(c) a right to sell the item.
21.2 The lien of EDC shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
22. Building and Construction Industry Security of Payment Act 2002
22.1 At EDC’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.
22.2 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.
23.1 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.
23.2 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.
23.3 EDC 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 EDC of these terms and conditions.
23.4 In the event of any breach of this contract by EDC the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Materials.
23.5 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 EDC nor to withhold payment of any invoice because part of that invoice is in dispute.
23.6 EDC may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
23.7 The Client agrees that EDC 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 EDC notifies the Client of such change.
23.8 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.
23.9 The failure by EDC to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect EDC’s right to subsequently enforce that provision.