These are the standard trading terms governing the supply of Services by Astute Business Growth Pty Ltd as trustee for the Manesi Trust (“Astute”, “we” or “us”) of PO Box 3141, Nerang BC, Qld 4211; 07 5609 6697; and info@astuteadmin.com.au.
1. General
1.1 These standard trading terms apply to all purchases of Services by a customer (“you” or “Customer”) from us. They are supplemented by any additional trading terms published by us and applicable at the time of purchase. We expressly reject any terms you propose that vary or add to our trading terms.
1.2 These standard trading terms can be varied only in accordance with either changes or additions published by us from time to time about these standard trading terms or by written agreement between us and you expressly stating that the agreement varies these standard trading terms. The updated trading terms do not apply to any Services you have already ordered from us and we have agreed to supply those Services.
1.3 These trading terms apply notwithstanding any forbearance or failure by us to enforce any of the terms, any course of conduct by the parties and despite any industry practice to the contrary.
1.4 The Customer understands that termination of the Service must be requested in writing and will impose an additional cost of 60% of the Quoted monthly price, payable as an exit administration fee.
2. Orders
2.1 When you wish to obtain our Services, we will provide you with a quote for those Services (Quote). That Quote is open for acceptance by you for 30 days. The Quote will specify the type and extent of the Services we will provide. The quote does not extend to any other Services. You can accept the Quote for Services in writing or in any other way acceptable to us. Other than but subject to clause 2.3, a binding contract is formed when you accept our Quote you thereby accept these trading terms.
2.2 Despite your acceptance of our Quote, we retain a discretion to not proceed with the Quote due to unusual circumstances (such as too many quotes being accepted at the same time, reassessing the site where the Services are to be rendered, etc). If we exercise our discretion in this way we will notify you and there is no obligation to us to provide the quoted Services and we have no other liability to you.
2.3 We can accept orders in our discretion. We will confirm orders we accept by sending you an order confirmation, in which we will specify the intended date for providing the Services. Acceptance is subject to you complying with clause 3.6 (if applicable).
2.4 Upon sending to you the order confirmation, you are obliged to purchase the Services set out in the order confirmation.
2.5 We can cancel an order for Services if you are late in paying for any prior or current Services or have otherwise breached these trading terms, you are insolvent or enter into any form of bankruptcy or external administration.
2.6 If, before, during or soon after the time we render the Services to you, you request additional Services then you agree to pay the price we quote to you (either in writing or verbally) or our invoiced price (that will be consistent with our usual pricing for similar Services).
3. Price
3.1 Prices are subject to change.
3.2 The price for the Services are the price applicable at the time the Services are provided to you.
3.3 At the time of providing the Services, we will invoice you for those Services. We may require a deposit or payment in full before the Services are provided to you.
3.4 You must pay for the Services within the time indicated in the invoice but no later than within 7 days of the date of the invoice. Your payment must be made without any set-off, discount or by way of exchange of your goods or services.
3.5 You must pay us in AUD$.
3.6 If we request that you provide us security for payment (or replacement security from time to time) then you must provide us the security before we are required to render the Services ordered by you.
3.7 If you are late in paying for the Services, then you must also pay to us interest at the monthly rate of 1.5% (compounding monthly). You hereby indemnify us for all costs incurred arising from your default, including all legal costs.
3.8 If your account is overdue then we can, without notice to you, cease to supply you or cease to supply you on credit.
3.9 You must inform us in writing of any discrepancies in our invoices within 7 days of the invoice date.
3.10 The price for the Services is exclusive of GST. You must pay all GST arising from the supply of the Services to you.
3.11 Payment can be made by bank transfer (BSB: 014-679 Acc: 410182011), cash, or by cheque, or by bank cheque, or by credit card (but we may in addition to the price charge you the fees charged by the credit card provider to us), or by direct credit, or by any other method as agreed to between the Customer and Astute. If you pay for Services by cheque, then payment only occurs when all cheques have been presented and cleared in full.
4. Rendering the Services to You
4.1 We will render the Services to you at the place nominated by us.
4.2 We make all statements or forecasts of the time when the Services will be rendered in good faith, but these are estimates only.
4.3 You must notify us within 7 days after we rendered the Services if you believe we have not properly or completely rendered the Services as agreed. We will investigate your claim within a reasonable time. If we are satisfied that there was a shortage, then we will make it up (and this is the maximum extent of our potential liability).
4.4 Subject to clause 4.6, we are not liable to you for any loss or damage arising directly or indirectly from any delay in rendering, or failure to render, the Services. If we are not able to render the Services to you, then we will notify you.
4.5 We reserve the right to render the Services over time (i.e. not necessarily all at once, particularly for larger jobs). Where we render Services over time, we may invoice you for progress payments.
4.6 If you are a consumer pursuant to the Australian Consumer Law, then we guarantee that the Services will be rendered within a reasonable time.
5. PPSA
5.1 You acknowledge and agree:
(a) that you grant us a Security Interest in your assets and chattels other than realty;
(b) the Security Interest secures the purchase price for all Services rendered by us to you;
(c) the Security Interest attaches to your assets and chattels at the time we commence rendering the Services to you; and
(d) that we are entitled to register the Security Interest pursuant to the PPS Law.
5.2 To avoid any doubt, the Parties intend this document to create a security interest in your assets and chattels above for the purposes of the PPS Law.
5.3 The Security Interest ranks in priority ahead of all other Security Interests over your assets and chattels other than security interests already registered on the PPSR.
5.4 You agree to do anything (such as obtaining consents, completing, signing and producing documents and supplying information) which we consider necessary for the purpose of:
(a) ensuring that the Security Interest is enforceable, perfected and otherwise effective;
(b) enabling us to apply for any registration or give any notification (including registering a Financing Statement or Financing Change Statement on the PPSR as a Security Interest pursuant to the PPSA), in connection with the Security Interest so that it has the priority required by us;
(c) enabling us to exercise any powers in connection with the Security Interest; and
(d) obtaining possession or control of any of your assets and chattels for the purpose of perfecting any Security Interest in them by possession or control for the purposes of the PPS Law.
5.5 You agree not to change your name, or any other details required on the PPSR, without first notifying us in writing.
5.6 Without limiting any other provision of this document, you waive your right to receive any Verification Statement (or notice of any Verification Statement) in respect of any Financing Statement or Financing Change Statement relating to any Security Interest created under this document.
5.7 To the maximum extent permitted by law, you waive any right you may have pursuant to, and hereby contract out of the following sections of the PPSA: Section 95 (notice of removal of accession) to the extent it requires us to provide you with a notice, Section 125 (obligation to dispose of or retain collateral), Section 130 (notice of disposal) to the extent it requires us to provide you with a notice, Section 132(4) (statement of account if no disposal), Section 135 (notice of retention), Section 142 (redemption of collateral) and 143 (reinstatement of security agreement).
5.8 You and we agree that subject to section 275(7) of the PPSA neither of us will disclose information of the kind described in section 275(1) of the PPSA in response to a request made pursuant to section 275(1) of the PPSA or otherwise.
5.9 You agree to pay our costs of any discharge or necessary amendment of any Financing Statement or Financing Change Statement.
6. Additional Security
6.1 Despite anything to the contrary contained herein or any other rights which Astute may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any another 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 Astute or Astute’s nominee to secure all amounts and other monetary obligations payable under these terms. The Customer and/or the Guarantor acknowledge and agree that Astute (or Astute’s nominee) is entitled to lodge where appropriate a caveat, which caveat may be withdrawn once all payments and other monetary obligations payable hereunder have been met;
(b) if Astute elects to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor hereby indemnify Astute from and against all Astute’s costs and disbursements including legal costs on a solicitor and own client basis; and
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Astute or Astute’s 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.
7. Guarantee
7.1 We guarantee that the Services will be rendered with due care and skill.
7.2 Unless you make known to us that the Services are being acquired for a particular purpose or the result you wish the Services to achieve, then we make no guarantee that the Services are fit for any particular purpose or to achieve any particular result.
7.3 The guarantee in clause 7.1 operates for 6 months or the period allowed in the Australian Consumer Law (if you are a consumer).
7.4 If within 7 days of us rendering the Services you believe they did not conform to our guarantee, then please contact us at our address, phone number or email address listed at the start of these trading terms.
7.5 Following contact from you pursuant to clause 7.4, if we believe that any Services did not conform to the guarantee in clause 7.1, then we will render the Services again.
7.6 To the maximum extent permitted by law the limit of our liability to you is:
(a) us supplying the Services again pursuant to clause 7.5; or
(b) payment of the cost of having the Services supplied again.
7.7 To the maximum extent permitted by law, we are not liable in any circumstances for any injury, damage or loss, including consequential damage or loss (including without limitation loss of market, loss of profit or loss of contracts) whether arising directly or indirectly, whether arising in contract, tort, in equity or on some other basis, to people or property arising out of us rendering the Services to you.
7.8 Mandatory Statement in favour of Australian Consumers:
“Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service you are entitled:
· to cancel your service contract with us; and
· to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to be compensated for any other reasonably foreseeable loss of damage. If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund of any unused portion for the contract.”
7.9 The benefits to you pursuant to this clause are in addition to the other rights and remedies you may have pursuant to applicable law.
8. Intellectual Property
8.1 You acknowledge that all intellectual property in the Services, their associated trademarks and marketing and advertising material are our sole property.
8.2 You must not advertise or use our name, trademarks or other intellectual property in any manner without our prior written consent and must immediately ceasing using them at our request.
8.3 You must keep all information we provide to you that is not commonly known to the public, including our prices, absolutely confidential.
9. Miscellaneous
9.1 The laws of Queensland, without reference to “choice of law” principles, govern these standard terms of trade. You and we submit to the non-exclusive jurisdiction of the courts of that place.
9.2 Other than clause 3.4, time is not of the essence under these standard trading terms.
9.3 A reference to “includes”, “including”, “in particular” or “such as” are to be read as if followed by the words “without limitation”.
9.4 All rights and powers enjoyed by us and any discretion, consent or decision to be made by us pursuant to these standard trading terms may be exercised by us in our absolute discretion and may be given or withheld subject to conditions. All approvals by us are only effective and binding when given in writing by an authorised officer.
9.5 If any provision or part of any provision of these terms is unenforceable (including any of the sub-clauses in clause 5) then it will be severed from the rest and such unenforceability does not affect any other part of such provision or any other provision of these terms.
9.6 You irrevocably appoint us and our representatives as your attorney (Attorney) to do any or all of the following on your behalf and in your or the attorney’s name if you default on your payment obligations to us:
(a) anything which the Attorney considers necessary or expedient to give effect to these trading terms or any other agreement with you, or to perfect or register these trading terms or any other agreement with you, including by signing any document for that purpose;
(b) execute and register a caveat over any real property owned by you to support any debt owing to us pursuant to these trading terms or any other agreement with you; and
(c) anything which an Attorney is expressly empowered to do under these trading terms or any other agreement with you.
9.7 You agree to ratify anything done by the Attorney under this power of attorney. An Attorney may delegate its powers (including the power to delegate) to any person for any period and may revoke the delegation.
9.8 You must indemnify us for all costs (including legal costs on a solicitor own client basis) we incur arising either during the term of this Agreement from you breaching these standard trading terms, in us enforcing these standard trading terms or upon termination
9.9 If you are a trustee or if any party gives us a guarantee and indemnity as a trustee, then the following provisions shall apply:
(a) you shall be personally liable for the performance of all obligations and undertakings under these trading terms and/or under any guarantee given by you;
(b) you warrant that you have full, complete and valid authority pursuant to the trust to enter into the relevant supply contract and/or any relevant guarantee or indemnity;
(c) notwithstanding that there is no reference to a specific trust our rights of recourse shall extend to both your assets personally and the assets of the trust; and
(d) you undertake to us that your rights of indemnity against the trust assets have not been excluded by the provisions of the trust or by any breach of trust or otherwise and that you will not release or otherwise prejudice such rights of indemnity.
9.10 In these standard terms of supply, the following terms apply:
GST means any consumption tax imposed by any government or government agency, whether at the point of sale or at some other occurrence, by whatever name, which operates during the time we render Services to you and includes a goods and services tax, an indirect tax and value added tax.
Parties means us and you.
PPS Law means:
(a) the PPSA and any regulation made at any time under the PPSA, including the PPS Regulations (each as amended from time to time); and
(b) any amendment made at any time to any other legislation as a consequence of a law or regulation referred to in paragraph (a).
PPS Regulations means the Personal Property Securities Regulations 2010 (Cth).
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Property Securities Register.
Service Site means the address at which the Services will be or are rendered and as identified in a Quote.
Services means pressure cleaning, concrete cleaning, concrete resurfacing, driveway cleaning and mould removal, driveway resurfacing, graffiti removal, external house cleaning, roof restoration and cleaning, soft washing, tennis court cleaning, chewing gum removal, factory pressure cleaning, shed pressure cleaning, industrial pressure cleaning, masonry cleaning, playground cleaning, school pressure cleaning and shopping centre pressure cleaning or other service provided by us to the Customer.
Site Structures means the improvements or structures on the Service Site, including those upon which the Services will be rendered.
9.11 In these standard terms of supply, unless the context requires otherwise, the following words and expressions (and grammatical variations of them) have the same meanings given to them in the PPSA or the PPS Regulations (as applicable): Accounts, Accessions, Financing Change Statement, Financing Statement, Security Interest and Verification Statement.
