Terms & Conditions
These terms and conditions (Terms), together with any Quote (as defined in clause 2.1), set out this agreement (this Agreement) under the terms of which Dionisios (Dennis) Kaldis trading as Power Source Electrical Services ABN 23 661 682 670 (“PSES”) provides services to you or the company which you represent (the “Customer”).
1. HOW TO READ THIS AGREEMENT
Capitalised words and phrases used in these Terms have the meaning given:
(a) by the words immediately preceding any bolded and bracketed word(s) or phrase(s); or
(b) in the definitions in clause 29.1 of this agreement.
2. APPLICATION OF THIS AGREEMENT
2.1 These Terms will apply to all the Customer’s dealings with PSES, including being incorporated in all agreements, quotations, tenders or orders under which PSES is to provide services to the Customer (each a “Quote” for the purposes of this Agreement) together with any additional terms included in such Quote.
2.2 You will be taken to have accepted these Terms if you sign these Terms or otherwise indicate your assent (whether in writing or verbally) to these Terms, or if you order, accept or pay for any services provided by PSES after receiving or becoming aware of these Terms.
2.3 This Agreement commences once these terms have been accepted in accordance with clause 2.2 and expires in accordance with the Quote and this agreement (Term).
2.4 In the event of any inconsistency between these Terms and any Quote the clauses of these Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms set out and described as such in a Quote) will prevail over the other terms of this agreement to the extent of any inconsistency.
2.5 No confirmation, shipment, delivery docket, invoice or other document issued by or on behalf of the Customer (including the terms on any warranty or other agreement given to PSES) will vary or form part of this Agreement unless otherwise agreed by PSES in writing.
3. SUPPLY OF GOODS AND/OR SERVICES
3.1 PSES will provide the Goods and/or Services to the Customer in accordance with the Quote and the Terms.
3.2 Unless PSES agrees in writing, you must not submit, share or distribute the Quote to any third parties, including other suppliers. You acknowledge and agree that the Quote is provided solely for your personal viewing purposes and to assist you with assessing whether to commit to purchasing the Goods and/or Services.
3.3 The Quote is valid for 1 month from the date of issue and is merely an invitation to treat and is not binding on PSES until PSES has accepted it. The Quote is subject to changes in price, including but not limited to parts, price fluctuations, further assessment at the Premises and other fees/costs that may have been unforeseeable in the initial Quote.
3.4 The Quote becomes binding on PSES upon written acceptance by PSES or at the time PSES commences supply of the Quote, whichever comes first. PSES may, in its discretion, accept or reject in whole or part any Quote.
3.5 Once the Quote is accepted by PSES, the Customer will commit to purchase the Goods and/or Services and cannot cancel or revoke the Quote except to the extent as expressly permitted by this Agreement.
3.6 The Customer acknowledges and agrees that the supply of Goods and/or Services under an accepted Quote remains subject to availability and if, for any reason PSES is unable to proceed with the supply, PSES reserves the right to cancel the order (in which case PSES will refund all amounts paid for the Quote). Such refund will be the Customer’s only remedy in these circumstances and PSES will not be liable to pay any other amount to the Customer.
4. TYPES OF SERVICES
4.1 (One-off Projects) Where a Quote indicates that PSES provides Services for a one-off project (One-off Projects) the One-off Project commences on the Start Date as specified in the Quote and continues unless and until the Quote is terminated in accordance with this agreement or the One-Off Projects for Services are completed and all relevant Fees are paid.
4.2 (Staged Projects) Where a Quote indicates that PSES provides Services for a staged project (Staged Project), the Staged Project commences on the Start Date as specified in the Quote and continues unless and until the Quote is terminated in accordance with this agreement or the final stage of the Project is completed and all relevant Fees are paid.
4.3 (Other Services) Where the Customer requests PSES to provide Services, and no One-off Projects or Staged Projects have been agreed, the Customer will pay PSES at the Hourly Rate specified in the Quote for such Services or, if Hourly Rate has been agreed in a Quote, the Hourly Rate will be reasonably determined by PSES.
5. PRICING
5.1 The Fees payable by the Customer to PSES for the Goods and/or Services is the price specified in the Quote pursuant to PSES’ current rates and charges schedule at the time the Quote is placed (or as otherwise agreed between the parties) (Fees).
5.2 PSES may charge a deposit which will be set out in the Quote or otherwise provided to the Customer in writing. The deposit is due on the date that the Customer signs the Quote and before PSES provides the Customer with any Goods and/or Services.
5.3 PSES reserves the right to vary the price of the Goods and/or Services it provides to the Customer from time to time without notice, even after it has accepted the Quote, where:
(a) there is an increase in any of PSES’ standard rates;
(b) there is any change to the nature of the work to be undertaken in the Quote;
(c) there are delays caused by circumstances or events outside of PSES’ control, including but not limited to delays directly or indirectly caused by the Customer and delays caused by the Premises not being in a condition that complies with clause 10; or
(d) PSES’ suppliers vary the costs of the materials that they supply to PSES.
5.4 Any amended price will apply immediately. PSES will provide the Customer an invoice of the difference in any additional costs which the Customer must pay in accordance with the payment terms as stated on the invoice.
6. PAYMENT
6.1 The Customer must pay all Fees in accordance with the amounts, due dates and payment terms specified in the Quote, or as otherwise agreed between the parties.
6.2 PSES will provide a tax invoice to the Customer for all amounts payable by the Customer at the times specified the Quote. Such invoices will reference the relevant Quote number and the relevant stage (if applicable) of the provision of the Goods and/or Services.
6.3 From time to time, PSES may attend a site nominated by the Customer at the request of the Customer to assess possible Services required. Following assessment, PSES may issue a Quote to the Customer for such Services. If PSES issues a Quote and the Customer does not accept the Quote, the Customer must pay a call-out fee of $150 plus the additional time spent on customers premises at PSES hourly rate. After 6PM call out fee will increase to $250 and Hourly rate will be at double time.
6.46.3 Without prejudice to its other rights and remedies, PSES may set-off and deduct from the sums due to the Customer pursuant to any agreement any sums (whether liquidated or not) owed by the Customer to it, irrespective of whether the liability to pay those sums arose under or in connection with the Agreement.
6.56.4 Unless otherwise indicated, amounts stated in a Quote do not include GST. In relation to any GST payable for a taxable supply by PSES, the Customer must pay the GST subject to PSES providing a tax invoice.
6.66.5 PSES reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
6.76.6 PSES may use third-party payment providers (Payment Providers) to collect payments of the Fees for the Services. The processing of payments by the Payment Provider will be, in addition to these terms, subject to the terms, conditions and privacy policies of the Payment Provider and PSES is not liable for the security or performance of the Payment Provider. PSES reserves the right to correct, or to instruct its Payment Provider to correct, any errors or mistakes in collecting your payment. As at the date these terms were last updated, PSES’ Payment Providers are Stripe and Square and their terms and conditions can be accessed here: Stripe and Square.
6.86.7 If payment is not made in accordance with this clause, PSES at its entire discretion may:
(a) require the Customer to pay PSES interest on all outstanding monies from the due date until the date of payment at the rate of 15% per annum, accruing daily, subject to change from time to time by written notice to the Customer at the absolute discretion of PSES;
(b) demand payment and all money due under this Agreement to PSES shall immediately become due and payable;
(c) refuse to supply any further part of the Goods and/or perform any further Services to/for the Customer until all outstanding monies, including any accrued interest, is paid in full;
(d) seek to recover the amount due by referring the matter to a collection agency;
(e) require the Customer to reimburse PSES for any costs it incurs, including any legal costs, in recovering the amount due or enforcing any of its rights under this Agreement;
(f) terminate this Agreement in which case the full price for the Goods and/or Services, whether or not the time for payment under this Agreement has arrived, will be immediately due and payable.
6.96.8 Unless otherwise stated, the Fees and any other amounts payable by the Customer under this Agreement are to be increased by any goods and services tax payable on the supply.
6.106.9 The Customer may not withhold payment or make any deduction from any amount owing without PSES’ prior written consent, irrespective of any claim the Customer may have against PSES.
6.116.10 Where PSES orders materials on behalf of the Customer, the Customer will be liable to reimburse PSES the costs of such materials (even where the Customer instructs PSES to order incorrect materials). Refunds will not be provided unless otherwise agreed by PSES in writing. If PSES determines that additional materials are required for the provision of the Services then the Customer will be liable for the payment of any additional materials (except where caused by the negligent act or omission of PSES).
7. EXPENSES
7.1 Unless otherwise agreed in writing:
(a) the Customer will bear all electricity charges and other service charges in relation to the operation of equipment in relation to the Services at the Premises while they are being performed;
(b) the Customer will bear all travel, accommodation and related expenses reasonably incurred by PSES in connection with the Quote (if any); and
(c) any third party costs incurred by PSES in the course of performing the Services may be billed to the Customer, unless specifically otherwise provided for in the Quote.
8. PROVISION OF SERVICES & GOODS
8.1 The provision of the Goods and/or Services will take place through the delivery schedule as set out in the Quote or as otherwise agreed between the parties.
8.2 Any estimates for delivery of Goods and/or Services provided by PSES are an estimate only and are non-binding on PSES and subject to change without notice. PSES endeavours to provide the Goods and/or Services on time, however, cannot guarantee the Goods and/or Services will be delivered/performed by such delivery dates. To the extent permitted under the ACL, PSES will not be responsible for any losses, damages or costs suffered by the Customer in the event of any delay.
8.3 The Customer must pay all costs of delivery of the Goods at the time nominated by PSES (if delivery fees are payable) and must take receipt of the Goods when they are tendered for delivery by PSES.
8.4 In the event that the Goods are left by PSES on the Premises where the Services are to be provided (such as the Customer’s Premises) and the Goods are stolen, the Customer acknowledges and agrees that they must still pay PSES for the Goods in accordance with this Agreement (and such Goods will be deemed to have been supplied to the Customer) and any replacement Goods that PSES is required to purchase.
8.5 The Customer acknowledges and agrees that the Goods that PSES delivers may not be the same Goods described in the Quote provided they are of the same or similar quality as reasonably determined by PSES.
9. VARIATIONS
9.1 The scope of the Goods and/or Services is as specified in the Quote.
9.2 Should the Customer require amendments to the Goods and/or Services specified in the Quote, then the Customer may request PSES provide such amendments, and PSES may accept or reject such request at its sole discretion. Any requests for the removal or reduction of any of the scope of Goods and/or Services must be made within the cancellation period prescribed in the Quote (if any) and are subject to PSES accepting or rejecting such request at its sole discretion. If PSES accepts such requests then it will provide an additional quote (with additional fees if required to be paid as advised by PSES at the time of request) and if accepted by the Customer, an invoice will be issued to accommodate these scope changes.
9.3 If PSES determines that additional Goods and/or Services (including materials) are required to be carried out, then PSES will make all reasonable attempts to contact the Customer and stop all work associated until further instructions are provided by the Customer.
9.4 The Customer is solely liable for the payment of any additional Goods and/or Services outside of the scope specified in the Quote.
10. CUSTOMER OBLIGATIONS
10.1 (General) The Customer must provide PSES with all documentation, information and assistance reasonably required for PSES to perform the Services or provide the Goods. Any delays may delay the provision of the Services and may incur additional charges.
10.2 (Reasonable assistance) During the Services, the Customer must provide reasonable assistance to PSES’ Personnel.
10.3 (Liaison) The Customer agrees to liaise with PSES as PSES reasonably requests for the purpose of enabling PSES to provide the Goods or Services.
10.4 (Compliance with laws) The Customer agrees that it will not by receiving or requesting the Services:
(a) breach any applicable laws, rules and regulations (including any applicable privacy laws); or
(b) infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.
10.5 (Information) The Customer must, immediately on request, provide PSES with information identifying electrical services, gas services, and any other services that may be on the Premises.
10.6 (Plans) PSES will rely on the accuracy of any plans, specifications and other information the Customer provides. The Customer acknowledges and agrees that if any of this information is inaccurate or incomplete, PSES accepts no responsibility for any loss, damages, or costs arising in relation this, including the extent to which it may have affected the Services.
10.7 (Measurements and quantities) Where the Customer provides PSES with any measurements, or quantities of the Goods or other materials, required to complete the Services, it is the Customer’s responsibility to verify the accuracy and comprehensiveness of these measurements and quantities, before the Customer or PSES places an order based on these measurements and quantities. PSES accepts no responsibility for any loss, damages, or costs, however resulting from the Customer’s failure to comply with this clause.
10.8 (Licence to Premises) The Customer grants (or must procure the grant to) PSES and its Personnel an irrevocable licence to occupy the Premises for the purpose of fulfilling its obligations under this Agreement, as well as a licence to pass through any other areas as required for the provision of the Services
10.9 (Access to Premises) The Customer must ensure that PSES has clear and free access to the Premises (including parking), and to every area of the Premises that PSES reasonably needs to access to provide the Services or install Goods, at the times PSES will be providing the Services or installing the Goods. This may include the removal of any structure, fittings or fixtures.
10.10 (Work Health & Safety Laws) must ensure that the Premises is compliant with any applicable Work Health and Safety laws and industry practices and is otherwise in a suitable and safe condition for PSES to provide Services at the Premises.
10.11 (Authorisations) The Customer must obtain any relevant authorisations or permissions for PSES to provide Services at the Premises.
11. WORK TIMES
11.1 The Customer acknowledges and agrees that PSES will only provide Services between 5:00am and 6:00pm AEST on business days in NSW, Australia (Standard Hours).
11.2 If the Customer requires Services to be performed outside the Standard Hours, including where the Customer fails to make the Premises available during Standard Hours, the Customer will be required to pay an After Hours Rate specified in the Quote (and if no After Hours Rate is set out in the Quote, then the Customer must pay an hourly rate reasonably determined by PSES).
11.3 PSES will be entitled to change any dates or times the Services have been agreed to be provided:
(a) by giving the Customer 7 days’ notice; or
(b) on the date of the installation, if weather conditions, lack of access or other circumstances beyond PSES’ control, do not permit the Services to be carried out, or make them unreasonably difficult or inefficient to carry out.
12. INSTALLATION SERVICES ON THE PREMISES
12.1 In providing the Services to the Customer, PSES will take every reasonable precaution, however, to the maximum extent permitted under applicable law, including the ACL, will not be liable in respect of:
(a) the structural integrity of the Customer’s Premises;
(b) the Premises’ ability to carry the weight of any installed goods;
(c) any effect installation of the goods has on the Premises;
(d) any damage to the Premises including damage to walls, internal or external flooring, ceiling, appliances or any items on the Premises which is not directly due to PSES’ negligence or breach of this Agreement.
13. PERSONNEL & SUBCONTRACTING
13.1 The Customer approves PSES to subcontract, delegate or perform the Services through any person without the prior written consent of the Customer.
13.2 PSES will use reasonable endeavours to ensure that such persons comply with the provisions of this Agreement, however a breach by such persons of this Agreement will not be deemed a breach by PSES.
14. LIMITED INSTALLATION WARRANTY – NEW GOODS AND INSTALLATION ONLY
14.1 (Limited Warranty) Our new installations come with a 3 months’ warranty on parts and labour that we use.
14.2 (Manufacturer’s Warranty) Manufacturers of Goods may also provide a warranty which will be provided to the Customer with the Goods. Please read and review this document for any warranty claims.
14.3 (Services not included) Our Services and labour will not be included as part of any Manufacturer’s Warranty. The Customer may be charged for additional labour fees for installation relating to warranty claims from the manufacturer. If so, we will inform you of these charges and they will be charged at our usual service labour rate.
14.4 (No warranty for lack of maintenance) Warranty claims will only be accepted if the Goods and/or Services are faulty and you comply with the provisions of this clause 14 and will not be provided where the Goods and/or Services are faulty due to your fault such as lack of maintenance.
14.5 (Faulty goods/installation) If the Customer believes the Goods or installation Services are faulty, please contact us using the contact details provided in your Quote or our invoice, with a full description of the fault (including images if possible). If we determine, in our absolute discretion:
(a) that your Goods or installation Services may be faulty, we will conduct a further inspection before deeming a good or installation fault. If we determine that the relevant Goods or installation Services are faulty and covered by this warranty, you will be given the option of a refund of the full amount paid, an exchange or conducting the installation Services again. All refunds will be credited back to your original method of payment unless you request otherwise and we approve this request;
(b) that the relevant Goods and/or installation Services are not faulty, or are faulty due to lack of maintenance, fair wear and tear, misuse, services carried out by third parties (including the Customer), failure to use in accordance with the manufacturer’s instructions, or failure to take reasonable care, we will refuse your warranty claim and charge you for our Services at our applicable Hourly Rate, as well as a call out fee specified by PSES for having our Personnel attend the Premises. Such Hourly Rate and call out fee will be payable at the date specified on the invoice;
(c) If you fail to comply with the provisions of this clause 14 in respect of the faulty Goods and/or installation Services, we may, in our absolute discretion, issue only a partial refund or no refund in respect of such faulty Goods and/or Services, provided that nothing in this clause 14 is intended to limit the operation of any manufacturers’ warranties which you may be entitled to or any of your rights which cannot be excluded under applicable law.
14.6 (Change of mind return) PSES does not accept returns for change of mind.
14.7 (Error in the specifications) PSES does not accept returns for any error or miscommunication in any specifications set out in the Quote. It is your responsibility to ensure such details are correct.
15. AUSTRALIAN CONSUMER LAW
15.1 To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
15.2 Nothing in this agreement is intended to limit the operation of the ACL. Under the ACL, the Customer may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
15.3 If PSES is liable to the Customer in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, PSES’ total liability to the Customer for that failure is limited to, at the option of PSES:
(a) in the case of services, the resupply of the services or the payment of the cost of resupply; and
(b) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.
16. LIABILITY
16.1 (Liability for Defects) Notwithstanding any other clause in this Agreement, PSES will only be responsible for defects in the Services, Goods and components that PSES supplies. To the maximum extent permitted by law, PSES will not be liable for or required to provide any remedy for:
(a) any components or materials supplied by the Customer;
(b) any services carried out by third parties;
(c) any defect or damage where such defect or damage is caused by or arises as a result of, or directly or indirectly in connection with, the Customer (or the Customer fails to take reasonable steps to prevent them from becoming defective), any other person (such as the Customer’s other contractors, staff and agents) fair wear and tear, or any accident or circumstance outside the reasonable control of PSES.
16.2 (Damages) In the event the provision of the Goods and/or Services (being the works provided) are damaged or destroyed through no fault of PSES, then any additional cost and expenses incurred as a result of such damage or destruction shall be chargeable to the Customer and the Customer is solely liable to pay such amounts.
16.3 (Limitation of liability) To the maximum extent permitted by applicable law, the maximum aggregate liability of PSES to the Customer in respect of loss or damage sustained by the Customer under or in connection with this agreement is limited to the total Fees paid to PSES by the Customer in the six (6) months prior to the first event giving rise to the relevant liability.
16.4 (Indemnity) The Customer agrees at all times to indemnify and hold harmless PSES and its Personnel (“those indemnified“) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Customer or the Customer’s officers’, employees’ or agents’:
(a) breach of any term of this agreement; or
(b) negligent, fraudulent or criminal act or omission.
16.5 (Consequential loss) PSES will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by PSES, except to the extent this liability cannot be excluded under the ACL or any other applicable law.
17. WARRANTIES
17.1 The warranties contained in this clause must be valid at all times during the term of the Agreement and will be continuing warranties which will survive the termination or expiration of this Agreement.
17.2 The Customer warrants to PSES that as at the date of this Agreement and for the duration of this Agreement:
(a) the information contained in this Agreement is true and correct;
(b) the Customer is not entering this Agreement as trustee for any trust (unless disclosed);
(c) it has the legal right and power to enter into this Agreement;
(d) the execution, delivery and performance of this Agreement by the Customer has been duly and validly authorised by all necessary corporate action on its part;
(e) this Agreement is a valid and binding Agreement on the Customer, enforceable in accordance with its terms;
(f) the Customer is not bankrupt or insolvent and no receiver, liquidator, administrator or receiver and manager has been appointed over any part of its assets and no such appointment has been threatened;
(g) the Customer (including its partners, directors or shareholders) is not subject to any form of insolvency or bankruptcy administration; and
(h) it has the capacity to make the payment in accordance with this Agreement.
18. TERMINATION & CANCELLATION
18.1 The termination and cancellation rights of the parties are as specified in the Quote.
18.2 Without limiting clause 18.1, PSES may also in its absolute discretion, by written notice to the Customer, immediately terminate this Agreement (and shall have no liability for any loss suffered by the Customer due to the termination):
(a) if the Customer fails to make payment in accordance with clause 6;
(b) ceases, suspends or threatens to cease or suspend to conduct its business;
(c) becomes subject to any form of insolvency or bankruptcy administration;
(d) in the event of Force Majeure (such as if there are issues with PSES’ supplier or materials and PSES is unable to supply the agreed Goods); or
(e) if the Customer breaches any warranty or obligation contained in this Agreement and fails to rectify the breach within 7 days of being given a notice to do so.
18.3 Without limiting clause 18.1 the Customer may terminate this Agreement if PSES breaches the terms of this Agreement and fails to rectify the breach within a reasonable time (being not less than 14 days) of being given a notice to do so.
18.4 The rights and remedies of the parties contained in this clause 18 are in addition to any other rights and remedies by law, in equity or under this Agreement.
18.5 The expiration or termination of this Agreement will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of this Agreement occurring prior to expiration or termination of this Agreement.
18.6 Upon termination of the Agreement the Customer shall be liable to pay to PSES for all Goods and/or Services supplied by PSES under the Agreement up until the date of termination and any other amounts still owing by the Customer to PSES and such amounts shall be a debt immediately due and owing. PSES will deliver to the Customer any Goods and/or Services which have been paid for in full by the Customer at the date of termination.
19. OWNERSHIP, RISK AND ASSIGNMENT
19.1 Notwithstanding anything to the contrary express or implied in this Agreement, the parties agree that PSES retains full title to the Goods and title will not at any time pass to the Customer until the purchase price for the Goods and all other amounts owing in respect of the Goods are paid to PSES notwithstanding:
(a) the delivery or collection of the Goods to/by the Customer (as the case may be);
(b) installation in or attachment of the Goods to the Customer’s property; and/or
(c) the possession and use of the Goods by the Customer.
19.2 Even if PSES retains ownership of the Goods, all risk for the Goods passes to the Customer on delivery of the Goods to the Customer or the nominee of the Customer.
19.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, PSES is entitled to:
(a) receive payment for the Goods; and
(b) receive all insurance proceeds payable for the Goods. The production of this Agreement by PSES is sufficient evidence of PSES’ rights to receive the insurance proceeds without the need for any person dealing with PSES to make further enquiries.
19.4 The Customer acknowledges and agrees that:
(a) it will not agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire or otherwise part or attempt to part with personal possession of or otherwise deal with the Goods without the express written consent of PSES;
(b) it will, if requested by PSES, return the Goods to PSES following non-fulfilment of any obligation of the Customer (including payment of monies) without limiting any other right PSES may have;
(c) it will deliver up the Goods to PSES upon demand by PSES and give PSES or its agents or authorised representatives the right to enter any Premises occupied by the Customer and any Premises where it believes any Goods may be stored (without liability for trespass or any resulting damage) and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods and agrees to indemnify PSES and its agents and/or authorised representatives from any damage, injury and/or loss arising from such recovery or attempted recovery of the Goods from the Customer’s possession or control;
(d) it holds the proceeds, book debts and accounts receivable arising from selling or hiring of the Goods on trust for and as agent for PSES immediately when they are receivable or are received; and
(e) PSES may recover as a debt due and immediately payable by the Customer all amounts owing by the Customer to PSES in any respect even though title to the Goods has not passed to the Customer.
20. BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT
Nothing in this Agreement prejudices the rights of either party to exercise a right under the Building and Construction Industry Security of Payments Acts in each of the states and territories of Australia, if any of such acts apply.
21. PERSONAL PROPERTY SECURITIES
21.1 Application
Until such time as the Goods are paid for in full in cleared funds, this clause shall apply to the supply of Goods.
21.2 Personal Property Securities
The Customer acknowledges and agrees that notwithstanding any other provision of this Agreement:
(a) the PPSA applies to any supply of Goods by PSES to the Customer;
(b) by agreeing to and/or accepting or adopting this Agreement the Customer grants to PSES:
(i) a purchase money security interest in the Goods (on the basis that the Goods are sold on retention of title terms); and
(ii) a security interest over all present and after-acquired property of the Customer (for purposes of this clause 21 “Customer’s Property”),
to secure PSES’ interest in the Goods and all moneys owing or payable by the Customer under this Agreement and any other moneys payable by the Customer to PSES from time to time on any account whatsoever;
(c) if a purchase money security interest is not able to be claimed by PSES in respect of the Goods for any reason, PSES will have a security interest in the Goods;
(d) the Customer agrees that PSES’ security interest in Goods and the Customer’s property covered by this Agreement may be registered on the PPSR and the Customer agrees to do all things necessary and required by PSES to effect registration of PSES’ security interest on the PPSR in order to give PSES’ security interest the best priority possible and anything else PSES requests the Customer to do in connection with the PPSA without delay;
(e) the Customer warrants that all information provided by the Customer to PSES, including but not limited to the Customer’s details, including the entity, name, ACN or ABN and address set out in the Quote is correct in all respects and must not change its name, address or other details set out in the Quote without providing PSES with at least 20 business days prior written notice;
(f) the Customer unconditionally and irrevocably appoints PSES as its attorney to do any of acts and matters set out in this clause 20 in the event that the Customer fails, delays or declines to execute such documents or do such acts;
(g) the Customer agrees that it will not grant a security interest or other encumbrance in the Goods whether under the PPSA or any other law to a third party unless it has obtained the prior written consent of PSES, which PSES may refuse to provide or grant in its absolute and unfettered discretion. PSES may request and the Customer must provide any information that PSES requires, acting reasonably, in order to fully consider whether to grant its consent;
(h) PSES’ security interest in the Goods, and the Customer’s Property extends to any proceeds in all present and after acquired property including without limitation book debts and accounts receivable arising from the selling or hiring of the Goods, and/or the Customer’s Property by the Customer;
(i) it has received value as at the date of first delivery of the Goods and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to PSES under this Agreement;
(j) the Goods are located in Australia at the date of the supply of the Goods and the Customer warrants that the Goods will remain located in Australia for the duration of the Agreement;
(k) neither PSES or the Customer will disclose any information to any interested person unless required to do so under the PPSA;
(l) the Customer waives its right under the PPSA:
(i) to receive a copy of any verification statement, financing change statement, or any notice that PSES intends to sell the Goods and/or the Customer’s Property or to retain the Goods and/or the Customer’s Property on enforcement of the security interest granted to PSES under this Agreement or any other notice under the PPSA unless the notice is required to be given by the PPSA and cannot be contracted out of;
(ii) to object to a proposal by PSES to dispose of or purchase or retain the Goods and/or the Customer’s Property in satisfaction of any obligation owed by the Customer to PSES;
(iii) to receive a statement of account following the sale of the Goods and/or the Customer’s Property; or
(iv) to redeem the Goods and/or the Customer’s Property;
(m) will not give (or allow any person to give) to PSES a written demand requiring PSES to register a financing change statement under the PPSA or enter into (or allow any other person to enter into) the PPS Register a financing change statement under the PPSA; and
(n) a default under any other security agreement under which it has granted a security interest to any other party in respect of the Goods is deemed to be a breach of this Agreement.
(o) PSES is not required to respond to a request made under Section 275 of the PPSA and that neither party will disclose information of the kind set out in Section 275(1) of the PPSA.
21.3 Further Supplies
The parties acknowledge and agree that any supply of Goods of any kind by PSES to the Customer which is not specifically set out in the Quote but for which PSES has or later issues a tax invoice or any other documentation to the Customer is deemed to form part of the Agreement and is subject to the terms of the Agreement.
21.4 Enforcement
(a) The enforcement provisions contained in this Agreement are in addition to any rights available to PSES under the PPSA and apply to the maximum extent permitted by law.
(b) Without limitation to clause 21.4(a) and any other provision of this Agreement sections 125, 129(2), 142 and 143 of the PPSA are contracted out of.
21.5 Power of Attorney
The Customer irrevocably nominates, constitutes and appoints PSES and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Customer on behalf of and in the name of the Customer to do all things necessary and sign all such documents as may be necessary to deal with the Goods in accordance with the enforcement provisions of this Agreement, the PPSA or otherwise, if the Customer is in default of this Agreement.
21.6 Interpretation
A term used in this clause 21 is taken to have the meaning defined under the PPSA.
22. CONFIDENTIALITY
22.1 The parties will not, during or at any time after the Term, disclose Confidential Information directly or indirectly to any third party, except:
(a) with the other party’s prior written consent;
(b) as required by law; or
(c) to their Personnel on a need to know basis for the purposes of performing its obligations under this agreement (Additional Disclosees).
22.2 If either party becomes aware of a suspected or actual breach of clause 22.1 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach. The parties agree that damages may not be a sufficient remedy for a breach of clause 22.1.
22.3 A party may only use the Confidential Information of the other party for the purposes of exercising its rights or performing its obligations under this agreement.
22.4 On termination or expiration of this agreement, each party must immediately return to the other party, or (if requested by the other party) destroy, any documents or other Material in its possession or control containing Confidential Information of the other party.
22.5 Each party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause 22.
23. PRIVACY
The parties must comply with their respective obligations under the Privacy Act 1988 (Cth).
24. INTELLECTUAL PROPERTY
24.1 DEFINITIONS
In this clause and any Quote, the following terms have the following meanings in relation to Intellectual Property Rights:
(a) “Existing Material” means Material, other than New Material;
(b) “New Material” means Material that is created, written, developed or otherwise brought into existence during the Term for the purposes of this agreement; and
(c) “Material” means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.
24.2 EXISTING MATERIAL
(a) Except to the extent otherwise stated in a Quote or in this clause 24.2¬:
(i) each party retains ownership of the Intellectual Property Rights in its Existing Material; and
(ii) nothing in this agreement transfers ownership of, or assigns any Intellectual Property Rights in, either party’s Existing Material to the other party.
(b) The Customer grants to PSES (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Material to the extent reasonably required to perform any Services.
(c) The Customer warrants that PSES’ use of the Customer’s Existing Material will not infringe the Intellectual Property Rights of any third party and will indemnify PSES from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
(d) PSES grants to the Customer a non-exclusive, royalty free, non-transferable and revocable licence to use its Existing Material, to the extent:
(i) such Existing Material is incorporated into the New Material; and
(ii) such use is reasonably required for the Customer to enjoy the benefit of the Services.
24.3 NEW MATERIAL
(a) Unless otherwise stated in a Quote, Intellectual Property Rights in New Material will be assigned to the Customer (and will become the Customer’s property), on and from the latest of the following dates:
(i) the date all Fees payable by the Customer under this agreement are paid to PSES in cleared funds;
(ii) the date the Customer starts using the New Material; and
(iii) the date the Services under the relevant Quote are completed in their entirety.
(b) In the event that this agreement is terminated prior to the completion of the relevant Services, PSES will retain ownership of such New Material and is not obliged to provide it to the Customer, unless the all fees specified in a Quote have been paid. In the event the Customer ceases to use New Material under a Quote for a period longer than 12 months, the Customer will automatically be deemed to have assigned that New Material back to PSES on and from the date that the Customer ceased using it.
(c) The Customer grants to PSES a perpetual, irrevocable, transferable, worldwide and royalty free licence (including the right to sublicense) to use, copy, modify and adapt the New Material.
25. DISPUTE RESOLUTION
25.1 A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause 25.
25.2 A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
25.3 Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith through mediation. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
26. FORCE MAJEURE
26.1 If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(a) reasonable details of the Force Majeure Event; and
(b) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
26.2 Subject to compliance with clause 26.1, the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
26.3 The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
26.4 For the purposes of this agreement, a ‘Force Majeure Event’ means any:
(a) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(b) strikes or other industrial action outside of the control of the Affected Party;
(c) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(d) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.
27. NOTICES
27.1 A notice or other communication to a party under this agreement must be:
(a) in writing and in English; and
(b) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
27.2 Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(a) 24 hours after the email was sent; or
(b) when replied to by the other party, whichever is earlier.
28. GENERAL
28.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
28.2 AMENDMENTS
This agreement may only be amended in accordance with a written agreement between the parties.
28.3 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
28.4 SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
28.5 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
28.6 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
28.7 COUNTERPARTS
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
28.8 COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
28.9 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
29. DEFINITIONS & INTERPRETATION
29.1 Definition
In these Terms, the following words and phrases have the following meaning:
Australian Consumer Law means Schedule 2 (Australian Consumer Law) of the Competition and Consumer Act 2010 (Cth).
Confidential Information means information relating directly or indirectly to PSES, its assets and the operation and affairs of PSES, including without limitation, this Agreement and the Goods and Services.
Goods means those goods that PSES agrees to supply to the Customer pursuant to the Quote.
GST has the meaning given to it in the A New Tax System (Goods and/or Services Tax) Act 1999 (Cth).
Personnel employees, secondees, agents, other nominees and subcontractors (who are individuals), including employees and contractors (who are individuals) of subcontractors.
PPSA means the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time.
PPSR means the Personal Property Securities Register established under the PPSA.
Premises means the working area or site specified where the Goods and/or Services are to be supplied as set out in a Quote or otherwise agreed between the parties.
Services means those services that PSES agrees to supply to the Customer pursuant to the Quote.
29.2 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
