Terms and Conditions
In these Conditions:
1.1“Australian Consumer Law” means the law as set out in Schedule 2 of the Competition and Consumer Act 2010;
1.2 “Company” means Alexander & Symonds Pty Ltd ACN 007 753 988 and includes its officers, employees, agents and sub-contractors;
1.3 “Consumer” means a “consumer” as that term is defined in Section 3 of the Australian Consumer Law;
1.4 “Consumer Contract” means a contract for supply of Services by the Company to the Customer as a Consumer;
1.5 “Consumer Guarantees” means the consumer guarantees under the Australian Consumer Law;
1.6 “Customer” is the purchaser of the Services;
1.7 “Consequential Loss” means loss of profits, loss of anticipated savings, economic loss or interruption of business or for any indirect or consequential loss;
1.8 “Contract” has the meaning given to it in clause 2.1;
1.9 “Credit Application” means any application for credit made by the Customer to the Company;
1.10 “Fees” means the fee payable to the Company for supplying the Services;
1.11 “Guarantors” means the directors of the Customer named in the Credit Application;
1.12 “GST” means the goods and services tax imposed by the GST Act;
1.13 “GST Act” means “A New Tax System (Goods and Services Tax) Act 1999”;
1.14 “Intellectual Property Rights” includes all rights throughout the world in relation to patents, copyright (including moral rights), designs, registered and unregistered trademarks, trade secrets, knowhow and all other intellectual property and any right to register those rights, whether created before or after the entering into of the Contract, and in all cases for the duration of those rights and any renewal;
1.15 “Land” means the land described in any document attached to these Conditions or otherwise associated with the supply of the Services;
1.16 “Liability” means liabilities, losses, damages, actions, causes of action, arbitrations, claims, orders, judgments, outgoings, costs (including legal costs calculated on a solicitor and own client basis) and expenses, whether present or future, actual or contingent;
1.17 “Services” means any professional surveying services or other service supplied or arranged by the Company at the request of or for the benefit of the Customer; and
1.18 “Survey Material” means all survey and other plans, reports and other documents prepared by the Company in connection with the supply of the Services.
2.1 The Customer agrees that:
2.1.1 by requesting or placing an order for any Services, whether it by oral, writing or in email communication; or
2.1.2 accepting the supply of any Services from the Company,
it is taken to have accepted and is immediately bound by these Conditions, which constitutes a contract for the Services between the Company and the Customer (Contract).
2.2 A Contract comes to an end on completion of the supply of Services by the Company.
2.3 These Conditions apply to all Services supplied by the Company to the Customer from time to time.
2.4 These Conditions prevail to the extent of any inconsistency with the standard terms of a Customer in relation to the Services, unless the Company expressly agrees otherwise in writing.
2.5 No promise, representation or undertaking made by the Company binds the Company unless expressly agreed in writing.
2.6 If any special conditions are specified in any attachment to these Conditions, they form part of these Conditions and prevail over the these Conditions to the extent of any inconsistency.
2.7 The Guarantors are deemed to have read and agreed to these Conditions prior to requesting Services.
3. PERFORMANCE OF SERVICES
3.1 The Company agrees to provide the Services with due care and skill.
3.2 Any times for supply of the Services or other milestones advised by the Company to the Customer are estimates only. The Company is not liable, nor is the Customer relieved of its obligations to accept or pay for the Services, for late performance.
3.3 The Company may sub-contract the supply of the Services. However, it will remain responsible to the Customer for the due performance of the Services.
4.1 Subject to clause 4.2, the Fees quoted for Services are valid for 30 days from the date of quotation.
4.2 Quotations are based on the current costs of supplying the Services and, unless the Company otherwise agrees, are subject to amendment by the Company to meet any rise and fall in such costs between the date of quotation and the date of providing the Services.
4.3 The Company:
4.3.1 will not be responsible; and
4.3.2 without limiting clause 11, reserves the right to charge the Customer,
for any errors or omissions in relation to the Services resulting wholly or partially from incomplete or unclear instructions in the Customer’s request for Services.
The Customer is responsible for payment to the Company of the Fees and any approved expenses or disbursements incurred by the Company.
6.1 Unless otherwise stated, all Fees quoted by the Company are exclusive of GST.
6.2 If GST is payable by a party (recipient) on any supply made by the other party (supplier) under these Conditions, the recipient must pay to the supplier an additional amount that is equal to the amount payable by the recipient for the relevant supply multiplied by the prevailing GST rate. This additional amount is payable at the same time as the amount for the relevant supply to which the additional amount relates.
6.3 In the event of a taxable supply, the supplier will provide a valid tax invoice (in the form prescribed by GST Act to the recipient.
7. CASH TERMS
Subject to clause 8, the Fees must be paid in full at the time of the Customer’s request for Services or, where expressly agreed in writing by the Company, prior to the supply of the Services.
8. CREDIT PAYMENT
8.1 Where a Credit Application is approved by the Company for the Customer (and not withdrawn), the Fees are payable within 30 days from the date of invoice unless other terms are expressly stated on the invoice.
8.2 If payment is made on or before a due date, any agreed settlement discount may be deducted from that payment.
8.3 The Company reserves the right to withdraw approval of a Credit Application for the Customer at any time by notice to the Customer.
9. SECURITY FOR CREDIT PAYMENT
9.1 The Customer and each of the Guarantors jointly and severally charge their respective interests in the Land in favour of the Company as security for the performance of their obligations under the Contract.
9.2 The Company may lodge an absolute or permissive caveat (Caveat) on any title to the Land pursuant to the charge granted in clause 9.1 provided that the Company must immediately withdraw the Caveat on satisfaction of the Customer’s obligations under the Contract.
9.3 The Customer must pay within seven days of demand the Company’s costs of preparing and lodging the above Caveat and withdrawing the Caveat in accordance with this clause.
9.4 The Company reserves the right to request such additional security for any credit arrangements as the Company deems necessary, and is entitled to withhold supply of the Services or credit arrangements until the additional security is provided by the Customer.
10.1 All amounts payable to the Company by the Customer must be paid in Australian dollars, in the manner required by the Company and without set-off on or before the due date for payment.
10.2 Payment will not be taken to occur until the payment has cleared in full.
10.3 The Company reserves the right to charge the Customer a reasonable administration fee for issuing duplicate invoices, statements or other documents requested by the Customer.
10.4 Any costs or charges incurred by the Company in collecting overdue amounts must be paid by the Customer to the Company on demand.
10.5 The Company reserves the right to charge interest at the rate of 5% per annum above the Reserve Bank of Australia cash rate as published from time to time on all overdue amounts owing to it from and including the due date up to and including the date of actual payment. Such interest will accrue daily and is payable on demand.
11.1 If the Customer directs the Company to revise any documents or materials prepared in the discharge of the Services other than to correct any error or omission, or to carry out additional work that does not form part of the Services, such direction and instruction will be regarded as a variation of the Services (Variation) entitling the Company to seek additional cost, time and payment.
11.2 The Company will notify the Customer of any Variation including the additional fees and expenses and, if applicable, the period of time to complete the Variation.
11.3 The Company reserves the right to not undertake the Variation until accepted by the Customer.
12. SUSPENSION OF SERVICES
12.1 If the Contract or Services are suspended for more than 30 days:
12.1.1 at the request of the Customer; or
12.1.2 as a result of some act or event for which the Customer is responsible,
the Company may issue an invoice for the work already done and costs incurred.
12.2 The Company reserves the right to suspend the Service where:
12.2.1 the Company and the Customer are in dispute or litigation has commenced in respect of a matter the subject of the Contract; or
12.2.2 the safety or working environment of its employees is or is likely to be compromised.
13.1 The Company warrants that the Company will maintain professional indemnity insurance in respect of the supply of the Services with a reputable Australian insurer to a level of cover the Company determines appropriate.
13.2 The Company will provide evidence of the above insurance to the Customer on reasonable request.
14. ACCESS TO SITE AND ASSISTANCE
14.1 The Customer must permit and facilitate the Company to have access to the Land (and any adjoining land) at such times and on such notice as the Company reasonably requires in connection with the supply of the Services.
14.2 The Customer must ensure the safety of any person gaining access to the Land and adjoining land under clause 14.1.
14.3 The Customer must provide such written instructions and any other information or assistance reasonably required by the Company in connection with the supply of the Services.
14.4 The Customer warrants that any information provided to the Company under clause 14.3 is complete, true and correct.
15. INTELLECTUAL PROPERTY
15.1 The Company will retain all Intellectual Property Rights in the Survey Material.
15.2 To the extent that any of the Intellectual Property Rights in the Survey Material does not vest in the Company, the Customer assigns to the Company all the Intellectual Property Rights.
15.3 For the duration of the Contract, the Company grants the Customer a non-exclusive, irrevocable and royalty free licence to copy and use the Survey Material for its own purposes.
15.4 The Customer must not sub-licence its rights under clause 15.3 or allow any third party to copy, use or modify the Survey Material without the Company’s prior written consent.
15.5 The Customer warrants that the use of any material provided to the Company by the Customer for the purposes of supplying the Services will not infringe the Intellectual Property Rights of any third party.
15.6 This clause 15 survives and will not be affected by the Contract coming to an end for whatever reason.
16. CONSUMER GUARANTEES
Where the Contract under which the Customer is supplied Services is a Consumer Contract (i.e. where the Customer is a Consumer):
16.1 the Services are supplied subject to the Consumer Guarantees;
16.2 if the Services fail to meet any Consumer Guarantee, the Customer will be entitled to such rights and remedies as are permitted or provided in the Australian Consumer Law for such failure, to the extent that such rights and remedies cannot be lawfully excluded; and
16.3 the Customer may only exercise any right or remedy for breach of a Consumer Guarantee strictly in accordance with the rights and responsibilities of the Customer under the Australian Consumer Law.
17. LIMITATION ON LIABILITY
17.1 This clause 17 does not limit the liability of the Company under Consumer Contracts.
17.2 The Company is not liable for any guarantee, warranty or representation as to the quality and fitness for purpose or otherwise of any Services unless expressed in writing and signed on behalf of the Company and any such warranty or representation will be limited to its express terms.
17.3 None of the guarantees, conditions, warranties or other terms implied by Commonwealth, State or Territory laws (“Implied Terms”) apply to any Contract except to the extent that the Implied Terms cannot be lawfully excluded.
17.4 The Company’s liability for breach of the Contract or for breach of any Implied Terms which by force of law cannot be excluded from applying to any such Contract is limited at the option of the Company to re-supplying the Services, or paying the cost of re-supplying the Services.
17.5 In no circumstance whatsoever is the Company liable to the Customer or to any third party for any Consequential Loss arising out of the supply or any failure to perform or observe the Company’s obligations under any Contract or Implied Terms and the Customer will keep the Company fully indemnified against any claim made against the Company by a third party for any Consequential Loss.
18. DEFAULT BY THE CUSTOMER
18.1 If :
18.1.1 the Customer defaults in payment or performance of any other obligation under the Contract;
18.1.2 the Customer becomes an “externally-administered body corporate” within the meaning of the Corporations Act 2001 (Cth);
18.1.3 any steps are taken for the winding up or dissolution of the Customer;
18.1.4 the Customer is insolvent within the meaning of the Corporations Act 2001 (Cth), or being taken or presumed to be insolvent; or
18.1.5 the Customer commits an “act of bankruptcy” within the meaning of the Bankruptcy Act 1966 (Cth),
the Company may, in its discretion and without notice, terminate any Credit Application with the Customer, suspend the provision of Services or terminate the Contract so far as it remains unperformed without prejudice to its rights.
18.2 The Customer must indemnify the Company against any Liability which the Company may incur because of any breach by the Customer of its obligations or warranties under the Contract.
19.1 The Company may cancel a Contract any time before the Services are supplied to the Customer by giving written notice to the Customer.
19.2 On giving notice under clause 19.1, the Company will refund to the Customer any sums paid in respect of the Services.
The Company will not have any other liability or responsibilities whatsoever in respect of such cancellation.
19.3 The Customer may cancel a Contract at any time before Services are supplied only with the Company’s prior written consent. On cancellation, the Company may retain any deposit or other sums paid on account of the Services and if payment for the Services is not already made in full, the Customer must indemnify the Company against any Liability (including Consequential Loss) incurred by the Company in respect of such cancellation.
20. FORCE MAJEURE
The Company shall not be liable for any Liability caused by the Company’s failure to supply Services because of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, war, pandemic disease or any other event or matter beyond the Company’s control, or occurrence which could not have been reasonably foreseen.
21. DISPUTE RESOLUTION
21.1 Subject to the terms of these Conditions, all disputes between the parties must be referred in writing to a representative appointed by each party who will attempt to resolve the dispute.
21.2 If the dispute is not settled within 14 days of receipt by each representative of notification of a dispute under clause 21.1, it must be referred to a mediator to be mutually agreed, or in default of agreement within seven days of either party requesting the other to agree a mediator, to be appointed by the President for the time being of the Law Society of South Australia Inc.
21.3 If mediation pursuant to clause 21.2 fails to resolve the dispute, each party is free to commence legal proceedings to resolve the dispute.
21.4 Nothing in this clause is to be interpreted as preventing either party from obtaining interlocutory relief from an appropriate court if it is reasonably necessary to do so to protect the interest of that party.
Any notice to be given by one party to the other must be signed by the party giving the notice or by one of its officers or its duly authorised agent and must be hand delivered or sent by prepaid post (or any other address or electronic mail address that a party may notify to the other) and will be deemed sufficiently given:
22.1 in the case of hand delivery, on the date of delivery;
22.2 in the case of prepaid post, two business days after being sent by prepaid post; or
22.3 in the case of electronic mail, on receipt by the sender of electronic confirmation that the electronic mail has been received by the recipient party.
23.1 Every Contract (wherever made) is governed by the laws of South Australia and subject to the exclusive jurisdiction of the courts of South Australia.
23.2 The Contract may only be altered in writing signed by each party.
23.3 Unless otherwise provided, a party may in its discretion give (conditionally or unconditionally) or withhold any approval or consent under these Conditions.
23.4 The Customer must not assign or otherwise deal with its rights or interest in the Contract without the prior written consent of the Company.
23.5 The Contract constitutes the entire agreement between the parties about the Services and supersedes any prior understanding or agreement.
23.6 A waiver of a provision of or right under the Contract must be in writing signed by the party giving the waiver and is effective only to the extent set out in the written waiver.
23.7 The failure, delay or indulgence by a party in exercising a power or right under the Contract is not a waiver of that power or right.
23.8 Each indemnity, obligation of confidence and other term capable of taking effect after the expiration or termination of the Contract, remains in force after the expiration or termination of the Contract.
In these Conditions, unless the context otherwise requires:
24.1 singular includes plural and plural includes singular;
24.2 a reference to a party includes:
24.2.1 its executors, administrators, successors and permitted assigns; and
24.2.2 a partnership, corporation, association, government body or any other entity;
24.3 an agreement, representation, warranty or indemnity by or in favour of two or more parties (including where two or more persons are included in the same defined term) binds or benefits them jointly and severally;
24.4 a reference to legislation includes any amendment to it, any substitution for it and any subordinate legislation made under it;
24.5 an unenforceable provision or part of a provision may be severed, and the remainder of these Conditions continues in force, unless this would materially change the intended effect of these Conditions; and
24.6 the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions.