TERMS & CONDITIONS

1. DEFINITIONS & INTERPRETATION

A&B Projects means “A.R INGLIS & B SMITH ABN 13 525 245 410 trading as A&B Projects”, its successors and assigns or any person acting on behalf of and with the authority of A&B Projects.

Customer means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by A&B Projects to the Customer.

Guarantor means the individual or entity that agrees to be liable for the Customer's debts.

Materials means all materials supplied by A&B Projects to the Customer, as detailed on invoices, quotations, work authorisations, or other forms provided by A&B Projects.

Price means the payment amount for the Materials as agreed between A&B Projects and the Customer in accordance with clause 3 of this contract.

Works means all Works provided by A&B Projects to the Customer, including consultation, manufacturing, construction, and/or installation Works, as well as the delivery of any Materials supplied by the A&B Projects at the Customer’s request from time to time.

2. ACCEPTANCE

2.1. Any instructions received by A&B Projects from the Customer for the supply of Materials and Works and/or the Customer’s acceptance of Materials supplied and/or Works provided by A&B Projects shall constitute acceptance of the terms and conditions contained herein.

2.2. Where more than one Customer has entered into this agreement, the Customer shall be jointly and severally liable for all payments of the Price.

2.3. Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of A&B Projects.

2.4. The Customer shall give A&B Projects not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by A&B Projects as a result of the Customer’s failure to comply with this clause.

2.5. Materials and/or Works are supplied by A&B Projects only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

3. PRICE & PAYMENT/VARIATION

3.1. At A&B Projects’ sole discretion the Price shall be either:

(a) as indicated on invoices provided by A&B Projects to the Customer in respect of Materials supplied and/or Works provided; or

(b) A&B Projects’ quoted Price (subject to clause 3.2) which shall be binding upon A&B Projects provided that the Customer shall accept A&B Projects’ quotation by signing and dating a written quote or invoice within thirty (30) days.

3.2. A&B Projects reserves the right to alter the Price in the event of a variation to the quotation. Any deviation from the scheduled works or specifications (including, but not limited to, currency exchange rate fluctuations or increased costs for materials and labour) will be charged per A&B Projects’ quotation and shown as variations on the invoice. Payment for all variations must be made in full at their completion.

3.3. A&B Projects may at its absolute discretion submit a detailed payment claim at intervals not less than weekly for work performed up to the end of each week. The value of work so performed shall include the reasonable value of authorised variations and the value of materials delivered to the site but not yet installed.

3.4. A non-refundable deposit is required on or before any Works are to be carried out.

3.5. A percentage of the remaining balance is to be paid upon delivery of the Materials, subject to any other arrangement between A&B Projects and the customer.

3.6. The final balance is to be paid upon completion subject to any other arrangement between A&B Projects and the Customer.

3.7. Time for payment for the Materials and/or 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 fourteen (14) days following the date of the invoice.

3.8. Payment will be made by cash, or by cheque, or by bank cheque, or by credit card or by direct credit, or by any other method as agreed to between the Customer and A&B Projects with the Customer to pay any processing fees and charges upon their method of choice.

3.9. 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.

4. DELIVERY OF MATERIALS AND PROVISON OF WORKS

4.1. At A&B Projects’ sole discretion delivery of the Materials shall take place when:

(a) the Customer takes possession of the Materials at A&B Projects’ address; or

(b) the Customer takes possession of the Materials at the Customer’s nominated address (in the event that the Materials are delivered by A&B Projects or A&B Projects’ nominated carrier); or

(c) the Customer’s nominated carrier takes possession of the Materials in which event the carrier shall be deemed to be the Customer’s agent.

4.2. At A&B Projects’ sole discretion the costs of delivery are:

(a) included in the Price; or

(b) in addition to the Price.

4.3. The Customer shall make all arrangements necessary to take delivery of the Materials whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Materials as arranged then A&B Projects shall be entitled to charge a reasonable fee for redelivery.

4.4. All building materials are to be on site before the installation date. A&B Projects shall be entitled to charge a reasonable revisit fee if these materials are not onsite and available for installation.

4.5. Delivery of the Materials to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.

4.6. The failure of A&B Projects to deliver shall not entitle either party to repudiate this contract.

4.7. A&B Projects shall not be liable for any loss or damage whatsoever due to failure by A&B Projects to deliver the Materials (or any of them) promptly or at all, where due to circumstances beyond the control of A&B Projects.

4.8. Subject to clause 4.9, it is A&B Projects’ responsibility to ensure that the Works start as soon as it is reasonably possible.

4.9. The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that A&B Projects claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the A&B Projects control, including but not limited to any failure by the Customer to:

(a) make a selection; or

(b) have the site ready for the Works; or

4.10. A&B Projects at its absolute discretion may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

4.11. Any time specified by A&B Projects for delivery of the Works is an estimate only and A&B Projects will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that A&B Projects is unable to supply the Works as agreed solely due to any action or inaction of the Customer, then A&B Projects shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

5. OWNERSHIP & TITLE

5.1. A&B Projects and the Customer agree that ownership of the Materials shall not pass until:

(a) the Customer has paid A&B Projects all amounts owing for the particular Materials; and

(b) the Customer has met all other obligations due by the Customer to A&B Projects in respect of all contracts between A&B Projects and the Customer.

5.2. Receipt by A&B Projects 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 A&B Projects’ ownership or rights in respect of the Materials shall continue.

5.3. It is further agreed that:

(a) where practicable the Materials shall be kept separate and identifiable until A&B Projects shall have received payment and all other obligations of the Customer are met;

(b) until such time as ownership of the Materials shall pass from A&B Projects to the Customer A&B Projects may give notice in writing to the Customer to return the Materials or any of them to A&B Projects. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Materials shall cease;

(d) if the Customer fails to return the Materials to A&B Projects then A&B Projects or A&B Projects’ agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Materials are situated and take possession of the Materials;

(e) the Customer is only a bailee of the Materials and until such time as A&B Projects has received payment in full for the Materials then the Customer shall hold any proceeds from the sale or disposal of the Materials, up to and including the amount the Customer owes to A&B Projects for the Materials, on trust for A&B Projects;

(f) the Customer shall not deal with the money of A&B Projects in any way which may be adverse to A&B Projects;

(g) the Customer shall not charge the Materials in any way nor grant nor otherwise give any interest in the Materials while they remain the property of A&B Projects;

(h) A&B Projects can issue proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials may not have passed to the Customer; and

(i) until such time that ownership in the Materials passes to the Customer, if the Materials are converted into other products, the parties agree that A&B Projects will be the owner of the end products.

6. RISK

6.1. If A&B Projects retains ownership of the Materials nonetheless, all risk for the Materials passes to the Customer on delivery.

6.2. If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Customer, A&B Projects is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by A&B Projects is sufficient evidence of A&B Projects’ rights to receive the insurance proceeds without the need for any person dealing with A&B Projects to make further enquiries.

6.3. Where the Customer expressly requests A&B Projects to leave Materials outside A&B Projects’ premises for collection or to deliver the Materials to an unattended location then such Materials shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all.

7. CANCELLATION

7.1. A&B Projects 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 seven (7) days written notice to the Customer. On giving such notice, A&B Projects shall repay to the Customer any sums paid in respect of the Price. A&B Projects shall not be liable for any loss or damage whatsoever arising from such cancellation.

7.2. In the event that the Customer cancels delivery of Materials the Customer shall be liable for any loss incurred by A&B Projects (including, but not limited to, any loss of profits) up to the time of cancellation.

7.3. Cancellation of orders for Materials tailor-made to the Customer’s specifications will not be accepted once production has commenced.

8. RETURNS/REFUNDS

8.1. Returns will only be accepted provided that:

(a) the Customer has complied with the provisions of clause 9.1;

(b) A&B Projects has agreed in writing to accept the return of the Materials;

(d) A&B Projects will not be liable for Materials that have not been stored or used in a proper manner; and

(e) the Materials are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

8.2. A&B Projects may (at their sole discretion) accept the return of Materials for credit but this may incur a handling fee of up to ten percent (10%) of the value of the returned Materials plus any freight costs.

8.3. Non-stock list items or Materials made to the Customer’s specifications are under no circumstances acceptable for credit or return

9. DEFECTS/CLAIMS/WARRANTIES

9.1. The Customer shall inspect the works on completion and shall within seven (7) days of delivery (time being of the essence) notify A&B Projects of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford A&B Projects an opportunity to inspect the works within a reasonable time following completion if the Customer believes the works are defective in any way. If the Customer fails to comply with these provisions the Materials shall be presumed to be free from any defect or damage.

9.2. In addition to standard manufacturing warranties provided by manufacturers, A&B Projects commits to a 12 month warranty on workmanship for the installation of materials.

9.3. Under applicable State, Territory and Commonwealth Law (including, without limitation the Competition and Consumers Act 2010 (Cth) (ACL), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the ACL) may be implied into these terms and conditions (Non-Excluded Guarantees).

9.4. A&B Projects acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

9.5. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, A&B Projects makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the materials or works. A&B Projects’ liability in respect of these warranties is limited to the fullest extent permitted by law.

9.6. If the Customer is a consumer within the meaning of the ACL, A&B Projects’ liability is limited to the extent permitted by section 64A of Schedule 2.

9.7. If A&B Projects is required to replace any Materials under this clause or the ACL, but is unable to do so, A&B Projects may refund any money the Customer has paid for the Materials.

9.8. If A&B Projects is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the ACL, but is unable to do so, then A&B Projects may refund any money the Customer has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Customer which were not defective.

9.9. If the Customer is not a consumer within the meaning of the ACL, A&B Projects’ liability for any defect or damage in the Materials is:

(a) limited to the value of any express warranty or warranty card provided to the Customer by A&B Projects at its sole discretion;

(b) limited to any warranty to which A&B Projects is entitled if A&B Projects did not manufacture the Materials; or

9.10. Subject to this clause 9, returns will only be accepted provided that:

(a) the Customer has complied with clause 9.1;

(b) A&B Projects has agreed that the Materials are defective;

(d) The Materials are returned in as close a condition to that in which they were delivered as possible.

9.11. Notwithstanding clauses 9.1 to 9.1 but subject to the ACL, A&B Projects shall not be liable for any defect or damage that may have been caused or partly caused by or arise as a result of:

(a) the Customer failing to properly maintain or store any Materials;

(b) the Customer using the Materials for any purpose other than that for which they were designed;

(c) the Customer continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) interference with the Works by the Customer or any third party without the A&B Projects’ prior approval;

(e) the Customer failing to follow any instructions or guidelines provided by A&B Projects;

(f) fair wear and tear, any accident, or act of God.

(g) notwithstanding anything contained in this clause if A&B Projects is required by a law to accept a return then A&B Projects will only accept a return on the conditions imposed by that law.

10. SECURITY & CHARGE / PPSR

10.1. Despite anything to the contrary contained herein or other rights that A&B Projects may retain:

(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer 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 A&B Projects or A&B Projects’ nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that A&B Projects (or A&B Projects’ 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 A&B Projects elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify A&B Projects from and against all A&B Projects’ costs and disbursements including its reasonable legal costs.

(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint A&B Projects or A&B Projects’ nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 11.1.

11. SECURITY OF PAYMENTS ACT

11.1. At A&B Projects’ sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Victorian Building and Construction Industry Security of Payments Act 2002 may apply.

11.2. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2002, except to the extent permitted by the Act where applicable.

12. DEFAULT & CONSEQUENCES

12.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 2% per annum more than the rate from time to time fixed by the Penalty Interest Rates Act 1983 (Vic) (and at A&B Projects’ sole discretion such interest shall compound monthly at such a rate).

12.2. In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by A&B Projects.

12.3. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify A&B Projects from and against all costs and disbursements incurred by A&B Projects in pursuing the debt including reasonable legal costs and A&B Projects’ collection agency costs.

12.4. Without prejudice to any other remedies A&B Projects may have, if at any time the Customer is in breach of any obligation (including those relating to payment) A&B Projects may suspend or terminate the supply of Materials or Works to the Customer and any of its other obligations under the terms and conditions. A&B Projects will not be liable to the Customer for any loss or damage the Customer suffers because A&B Projects has exercised its rights under this clause.

12.5. Without limiting A&B Projects’ other legal remedies, A&B Projects reserves the right to cancel any or all unfulfilled orders from the Customer, making all outstanding amounts due immediately if any of the following events occur:

(a) any payment owed to A&B Projects becomes overdue, or if A&B Projects believes the Customer will be unable to meet its payment obligations as they come due; or

(b) the Customer becomes bankrupt, insolvent, hold a creditors' meeting, proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise), or similar official is appointed in respect of the Customer or any of its assets.

14. ACCESS & UNDERGROUND LOCATIONS

14.1. The Customer must ensure that A&B Projects has unrestricted access to the work site at all times to perform the works. A&B Projects is not liable for any site damage (including but not limited to damage to pathways, driveways, and paved or grassed areas) unless such damage results from A&B Projects’ negligence.

14.2. Before A&B Projects starts any work, the Customer must inform A&B Projects of the exact locations of all underground services on the site and clearly mark them. These services include but are not limited to, electrical, gas, sewer, pumping Works, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other on-site services.

14.3. Although A&B Projects will take care to avoid damaging underground services, the Customer agrees to indemnify A&B Projects against any claims, losses, damages, costs, and fines resulting from damage to Works that were not precisely located and notified as required by clause 14.2.

15. INTELLECTUAL PROPERTY

15.1. The Customer guarantees that all designs or instructions given to A&B Projects will not cause A&B Projects to infringe any patents, registered designs, or trademarks in executing the Customer’s order. The Customer agrees to indemnify A&B Projects against any actions taken by third parties regarding such infringements.

15.2. The Customer authorises A&B Projects to use images of the Materials designed or drawn by A&B Projects in its advertising, marketing, or competition materials.

16. PRIVACY

16.1. The Customer and/or the Guarantor(s) consent to A&B Projects obtaining a credit report from a credit reporting agency containing personal credit information about them in relation to credit provided by A&B Projects.

16.2. The Customer and/or the Guarantor(s) agree that A&B Projects may exchange information about them with credit providers named as trade referees by the Customer or mentioned in a consumer credit report issued by a credit reporting agency for the following purposes:

(a) to assess the Customer's application; and/or

(b) to notify other credit providers of a default by the Customer; and/or

(c) to exchange information with other credit providers about the status of the Customer's credit account if the Customer is in default with other credit providers; and/or

(d) to assess the Customer's and/or Guarantor(s)' creditworthiness.

16.3. The Customer consents to A&B Projects obtaining a consumer credit report to collect overdue payments on commercial credit (Section 18K(1)(h) of the Privacy Act 1988).

16.4. The Customer agrees that the personal credit information provided may be used and retained by A&B Projects for the following purposes and other purposes as agreed between the Customer and A&B Projects or as required by law from time to time:

(a) providing Materials; and/or

(b) marketing Materials by A&B Projects, its agents, or distributors; and/or

(c) analysing, verifying, and/or checking the Customer’s credit, payment, and/or status in relation to the provision of Materials; and/or

(d) processing any payment instructions, direct debit facilities, and/or credit facilities requested by the Customer; and/or

(e) enabling the daily operation of the Customer’s account and/or collecting amounts outstanding in the Customer’s account in relation to the Materials.

16.5. A&B Projects may provide information about the Customer to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Customer; and/or

(b) to allow the credit reporting agency to create or maintain a credit information file about the Customer.

17. COMPLIANCE WITH LAWS

17.1. The Customer and A&B Projects shall comply with all applicable statutes, regulations, and bylaws of government, local, and other public authorities that may apply to the works.

17.2. The Customer shall obtain (at the Customer's expense) all necessary licenses and approvals for the works.

17.3. The Customer agrees that the site will comply with all occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.

18. GENERAL

18.1. If any provision of these terms and conditions is found to be invalid, void, illegal, or unenforceable, the validity, existence, legality, and enforceability of the remaining provisions shall not be affected.

18.2. 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.

18.3. A&B Projects shall not be liable to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) arising from a breach by A&B Projects of these terms and conditions.

18.4. In the event of any breach of this contract by A&B Projects, the Customer's remedies shall be limited to damages, which shall not exceed the price of the Materials under any circumstances.

18.5. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by A&B Projects, nor withhold payment of any invoice because part of that invoice is in dispute.

18.6. A&B Projects may license or subcontract all or any part of its rights and obligations without the Customer’s consent.

18.7. The Customer agrees that A&B Projects may review these terms and conditions at any time. Any changes to these terms and conditions will take effect from the date A&B Projects notifies the Customer of such changes.

18.8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, pandemic, or other event beyond the reasonable control of either party.

18.9. A&B Projects’ failure to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect A&B Projects’ right to subsequently enforce that provision.