Terms and Conditions of Trade for Gerrard Murphy (Drainage) Pty Limited trading as Murphy Plumbing
These terms and conditions together with any credit application, quotation, tender, order or booking (including an online order or booking) confirmation or proposal to which these terms are attached or in which these terms are referred, make up a legally binding agreement (the Agreement) between: Gerrard Murphy (Drainage) Pty Limited trading as Murphy Plumbing of 14 Mitchell Street, Merewether in the State of New South Wales (MP) AND the person(s) or company named in the attached or previously signed credit application, quotation, order or booking confirmation or proposal, or if purchasing or booking via MP’s website, then the person or company making the online purchase or booking (the Purchaser).
This Agreement may be accepted by doing either one or more of the following:
(a) Signing these terms and conditions of trade; or
(b) Signing the credit application, quotation or proposal issued by MP in which these terms and conditions were attached or referred to;
(c) Issuing a purchase order, booking or similar request for goods or services (including an online or web-based order or booking) in response to the quotation or proposal referred to at (b) above; or
(d) Visiting or making a purchase or booking through MP’s website.
THE PARTIES AGREE as follows:
- 1. Agreement to Buy and Sell
1.1 The parties acknowledge that MP will sell or provide and the Purchaser will purchase goods and/or services from time to time pursuant to these terms and conditions. If any future contract or document between MP and the Purchaser is inconsistent with this Agreement, then this Agreement will apply unless the subsequent contract is signed by MP, refers to and specifically alters this Agreement in writing and is signed by MP.
1.2 Should there be any variation to any of the information supplied to MP by the Purchaser (about or relevant to the Purchaser and its business), MP shall be notified in writing.
- 2. Placement of Orders and Variations
2.1 The Purchaser must order the goods and/or services (by itself or through a related entity or subsidiary) from MP in writing, by phone, email, facsimile, online via MP’s website or other electronic communication acceptable to MP (which includes without limitation purchase orders, the acceptance by the Purchaser of a quotation, proposal or variation prepared by MP) (orders). Upon placement of order, the Purchaser will be bound to proceed with the purchase of the goods and/or services at a price confirmed by MP.
2.2 For the avoidance of doubt, an order received from a related entity or subsidiary of the Purchaser will be deemed an order from the Purchaser, for which the Purchaser will be liable.
2.3 MP will not be bound by any terms or conditions expressed in orders or acceptances generated by the Purchaser except to the extent that such terms have been expressly agreed upon between the parties in writing and signed by MP. For the avoidance of doubt, even where the Purchaser attaches or refers to other terms and conditions in purchase orders or other requests for quotations or supply of goods and/or services, received after this Agreement has been entered into (additional terms), such additional terms are expressly excluded from this Agreement and will be of no force or effect against MP unless it expressly agrees otherwise (by notice in writing, signed by a director of MP).
2.4 MP may decline to accept any order without providing a reason in its absolute discretion.
2.5 If the Purchaser requests or MP deems there to be a variation in the scope of the supply of goods or services, then MP may (but is not obliged to) notify the Purchaser in writing of the variation, the price variation, associated delays and any other information MP deems relevant.
2.6 MP is not obliged to commence any supply associated with any variation identified in accordance with clause 2.4 unless and until the Purchaser acknowledges and accepts in writing the variations contained in that notice
- 3. Delivery of Goods and/or Services
3.1 The Purchaser acknowledges that goods delivered by a courier are outside MP’s control and MP will not be liable for any loss, damage, delay or non-delivery of goods contributed to by a third party, to the extent permitted by law.
3.2 Deliveries shall be made during normal working hours and at the cost and risk of the Purchaser. In the event the Purchaser or the Purchaser’s agent is not on site to accept the delivery, then the driver’s signature denoting the time, date & place of delivery, shall be deemed to be acceptance of the said delivery by the Purchaser.
3.3 If a delivery driver or courier, in their absolute discretion, deem the Purchaser’s delivery site unsafe or inaccessible then the delivery driver or courier reserves the right to not make the delivery of the goods until such time as the issues in relation to the site have been rectified or an alternative address supplied.
3.4 Subject always to the preceding clauses, MP’s obligation to deliver goods will not extend beyond delivery immediately inside the boundary of the address details provided by the Purchaser.
3.5 If a date for performance of services or delivery of goods is nominated by the Purchaser, MP will not be bound to perform the services or deliver the goods by that date unless MP expressly agrees to do so in writing, signed by the MP, in which case, it will be deemed to agree to use reasonable endeavours to perform the services by the relevant date.
3.6 MP shall be excused from any failure to perform or deliver which is contributed to by causes beyond its reasonable control and the time specified for completion of performance or delivery shall be extended commensurately. Delay in performance, delivery or completion shall not constitute a breach of this Agreement, nor shall it affect any other provisions of this Agreement to MP’s disadvantage.
3.7 It is the responsibility of the Purchaser to carefully inspect the goods and services immediately after they are delivered/performed. Any claims with respect to damage, shortage or defect will only be considered if made in the first instance by phone within 24 hours of delivery or completion, and also in writing within 48 hours of delivery/completion. The Purchaser must allow MP the reasonable opportunity to inspect and if necessary, perform further works or supply further goods as determined by MP.
3.8 Some orders will require complete payment or a percentage of the order price to be paid up front by the Purchaser to MP, some or all of which may be non refundable. This will be notified to the Purchaser at the time of or after the order is placed.
- 4. Supply of Services
4.1 MP will, subject to complying with its obligations under this Agreement, exercise its independent discretion as to the most appropriate and effective manner of providing any services it is contracted to provide as part of the supply.
4.2 The Purchaser at all times is responsible to ensure suitable and safe access to site. The Purchaser further indemnifies and saves harmless MP, and or its employees, servants or agents against any loss or damage, in the event the Purchaser fails to provide suitable and safe access to site for delivery or performance of services.
- 5. Payment and Price
5.1 All supplies are made and services performed at the prices or rates current at the time of delivery or performance in $AUD. The price of the goods is quoted EXW (Incoterms 2010) from MP’s premises. Costs and charges for freight and handling at the point of delivery to the Purchaser or the Purchaser’s agent are payable by the Purchaser unless otherwise stated on the quote/order form or on MP’s website (as the case may be).
5.2 MP may provide quotes based on information provided by the Purchaser prior to commencement of delivery of the services and/or goods. If information supplied is incorrect or inaccurate then these estimates will vary.
5.3 All quotes remain current for 60 days only from the date of quote but are not fixed. NOTE pricing may vary from time to time subject to exchange rate variations and/or material or labour cost increases outside the control of MP.
5.4 Where the Purchaser has not been approved for trading terms with MP, then apart from advance payments required, all amounts payable to MP are payable on a cash on delivery basis, or immediately upon issue of an invoice, whichever occurs first.
5.5 Where any form of credit has been granted to the Purchaser by MP, then the Purchaser must pay to MP the price in relation to each purchase of goods as set out in the corresponding tax invoice by the date noted in each tax invoice. Where no date is noted in a tax invoice, then terms are strictly 30 days from the date of each tax invoice.
5.6 Without prejudice to any other rights MP may have under this Agreement or at law MP may refuse to grant or may withdraw credit facilities to the Purchaser at any time without notice. Without limiting MP’s rights to withdraw credit, MP reserves the right to stop & place the account and any supply on hold until the account is returned to the agreed trading terms, and MP agrees to recommence supply.
5.7 The Purchaser agrees to pay to MP an account service fee of ten per cent (10%) per annum in relation to any invoices or amounts which are not paid strictly in terms of this Agreement, calculated daily and compounding monthly. The Purchaser acknowledges this service fee is a genuine pre estimate of the additional cost and damage suffered by MP in the event of a failure by the Purchaser to adhere strictly to the terms of this Agreement.
- 6. Passing of Title and Risk
6.1 Notwithstanding the delivery of the goods or part thereof the goods remain the sole and absolute property of MP as full legal and equitable owner until such time as the Purchaser has paid MP the full purchase price together with the full price of any other goods the subject of any other contract with MP. Risk in all goods passes on delivery or collection (as the case may be).
6.2 The Purchaser acknowledges that it receives possession of and holds goods delivered by or on behalf of MP solely as bailee for MP until such time as the full price thereof is paid to MP together with the full price of any other goods then the subject of any other contract with MP. Until such time as the Purchaser becomes the owner of the goods, it must:
(a) Store them on the premises separately;
(b) Ensure that the goods are kept in good and serviceable condition;
(c) Secure the goods from risk, damage and theft; and
(d) Keep the goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the Purchaser.
6.3 Until the goods are paid for in full:
(a) MP authorises the Purchaser to sell the goods but only in the ordinary course of its business;
(b) The proceeds of any sale of the goods (or sale of other goods into which the goods have been incorporated) must be paid into a separate account and held in trust for MP. The Purchaser must account to MP from this fund for the full price of the goods;
(c) Where the Purchaser is entitled to a period of credit, if prior to the expiration of the period of credit the goods are sold and the proceeds of sale received the Purchaser shall account to MP for the price of the goods;
(d) Should the Purchaser die, stop payment or call a meeting of its creditors or become insolvent or subject to the bankruptcy law or being a company calls a meeting for the purpose of or to go into liquidation or have a winding-up petition presented against it or has a receiver or administrator appointed, MP may at its option notwithstanding its waiver of such default or failure and without prejudice to its other rights under this Agreement suspend or cancel this Agreement or require payment in cash before or on delivery or tender of goods or documents notwithstanding terms of payment previously specified or may, subject to the law, repossess and take over the goods and dispose of the same in its own interest without prejudice to any claim it may have for damages for any loss resulting from such resale.
6.4 If the Purchaser does not pay for any goods on the due date then MP is hereby irrevocably authorised by the purchaser to enter the Purchaser’s premises (or any premises under the control of the Purchaser or as agent of the Purchaser in which the goods are stored at such premises) and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Purchaser whatsoever.
6.5 On retaking possession of the goods MP may elect to refund to the Purchaser any part payment that may have been made and to credit the Purchaser’s account with the value of the goods less any charge for recover of the goods, or to resell the goods.
- 7. Security and PPSA
7.1 For the purposes of this clause, “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time. Where a particular section or term from the PPSA is used in this Agreement, it is deemed to be that section or term as defined or used in the PPSA as amended, renumbered or replaced from time to time.
7.2 To the extent permitted by law, and for better securing payment of the contract price for supply of goods and/or services by MP plus any costs or charges, the Purchaser hereby charges all of its real and personal present and after-acquired property in favour of MP.
7.3 The Purchaser acknowledges and agrees that this Agreement constitutes a security agreement in relation to MP’s security interest in all present and after-acquired goods for the purposes of the PPSA. The Purchaser agrees to grant a “Purchase Money Security Interest” to MP.
7.4 For the avoidance of doubt, the Purchaser acknowledges and agrees that it grants to MP a security interest in all goods supplied by MP to the Purchaser (whether now or in the future) and in any proceeds from the sale of those goods.
7.5 To the extent permitted by law, the following provisions of the PPSA do not apply, and for the purposes of section 115 of the PPSA are contracted out of this Agreement:
(a) sections 95 (notice of removal of accession), to the extent that it requires MP to give a notice to the Purchaser, 96 (retain of accession) and 125 (obligation to dispose of or retain collateral);
(b) section 130 (notice of disposal), to the extent that it requires MP to give a notice to the Purchaser;
(c) section 132(3)(d) (contents of statement of account after disposal);
(d) section 132(4) (statement of account if no disposal);
(e) section 135 (notice of retention);
(f) section 142 (redemption of collateral);
(g) section 143 (reinstatement of security agreement).
7.6 For the purposes of section 14(6) of the PPSA, the Purchaser (and MP) agree that any payments received from the Purchaser by MP pursuant to or in any way connected with this Agreement, will be applied in such order as MP deems fit in its absolute discretion.
7.7 The Purchaser consents to:
(a) and agrees to execute any other document or instrument required to give effect to the security interests created by this Agreement; and
(b) the registration with the relevant authority or public register of any security interest created by this Agreement or any other document required to give effect to a security interest created by this Agreement, including without limitation the registration of a Financing Statement or Financing Change Statement on the Personal Property Securities Register.
7.8 The Purchaser must pay all costs of and incidental to the preparation, execution and registration of any instrument which is executed for the purposes of giving effect to this clause and must also pay all costs incidental to the withdrawal, discharge or release of such instrument.
7.9 To the extent permissible at law, the Purchaser waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relation to a Security Interest granted by the Purchaser, as Grantor to MP.
- 8. Warranties, refunds and Liability
8.1 This Agreement does not attempt to exclude, restrict or modify the application of any applicable laws of the Commonwealth State or Territory which cannot be excluded, restricted or modified.
8.2 The Purchaser acknowledges and agrees that to the extent permitted by law, MP will not be liable for, and the Purchaser releases MP in respect of, any claim, loss, cost, damage or expense (Claim) arising out of any act or omission of MP or its employees, officers or agents unless that Claim is a direct result of the negligence or breach of this Agreement or a warranty by MP.
8.3 Where MP’s supply includes goods, it does not refund or exchange those goods where the Purchaser has made a mistake or changed its mind.
8.4 The parties agree that to the extent permitted by law, any liability for a Claim against MP which cannot be otherwise excluded will be limited to the lesser of:
(a) the re-supply or repair of defective goods or services (if applicable);
(b) the reasonable cost of the re-supply or repair of the defective goods or services in question (if applicable); or
(c) the contract price of the original supply of the goods or services.
8.5 Notwithstanding any of the above, the parties agree that MP will under no circumstances be liable to the Purchaser for any indirect or consequential loss, loss of income, profit or opportunity or for any contingent, consequential direct/indirect special, or punitive damages arising out of or in connection with this Agreement, at law or in equity.
8.6 MP’s liability/obligations to honour any claim under or in connection with this Agreement do not extend to rectification of defects, loss, cost or damage which is caused or contributed to by use or operation of any part of the goods otherwise than in accordance with guidelines or specifications supplied by MP or the manufacturer, or under normal working conditions. MP will also not be liable for defects, loss, cost or damage arising out of or in connection with the misuse, tampering, neglect, or wilful destruction of any part of the goods or services or for any loss, cost, liability or damage caused or arising out of continued use or installation of any part of the goods or services after a defect has been detected or ought to have been detected.
8.7 MP will use reasonable endeavours to transfer warranties given by third party manufacturers of the goods supplied to the extent those warranties are transferrable. However, MP will not be liable for negotiating with manufacturers on behalf of the Purchaser and will not be liable to provide warranties to the Purchaser in addition to those provided by the manufacturer, whether or not transferred under this clause.
8.8 The content of any third party manufacturer’s warranties may be provided upon request to MP. Note that these warranties will be subject to their own terms and conditions with which the Purchaser should be familiar. Some claims for defective goods will not be accepted by the third party manufacturer of goods.
8.9 To the extent permitted by law and unless otherwise expressly agreed, MP does not provide and expressly excludes all warranties whether implied by statute or otherwise in respect of any goods.
8.10 If any clause or part clause of this Agreement is held to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation, it is to be severed so that the validity and enforceability of the remaining clauses and part clauses are not affected.
- 9. Term and Amendment
9.1 This Agreement commences on the date of its acceptance by the Purchaser and will expire upon reasonable notice being given by one party to the other or in accordance with clause 9.2.
9.2 Without limiting any other rights of MP, MP may terminate the Agreement without notice if the Purchaser is in default under this Agreement in any way or commits an act of insolvency or an external administrator or controller, liquidator or trustee in bankruptcy is appointed to the Purchaser or the Guarantor.
9.3 MP may assign or otherwise transfer any of its rights under this Agreement.
9.4 The Purchaser may not without the prior written consent of MP assign or otherwise transfer any of its rights or obligations under this Agreement.
9.5 MP reserves the right to amend this Agreement, provided such amendments are conveyed to the Purchaser in writing. The Purchaser further acknowledges that such writing will be by ordinary mail to the address set out in the original credit application, proposal or quotation, unless the Purchaser advises in writing to MP a new address, and this new address is acknowledged by return in writing by MP. Any amendments will be deemed to be accepted upon placement of a further order with MP after notice of the amendment, or 28 days, from notice, whichever occurs first.
- 10. Defaults and Rights
10.1 In the event of a default under this Agreement by the Purchaser, the whole of any outstanding balance will become immediately due and payable by the Purchaser to MP together with all legal costs and expenses associated with recovery of the outstanding balance on an indemnity basis.
10.2 The certificate of a director or the credit manager of MP will, in the absence of evidence to the contrary, be conclusive as to the amount of the outstanding balance.
10.3 No failure or delay of MP to exercise any right or enforce any obligation of the Purchaser hereunder and no custom or practice of the parties which is at variance with the terms of this Agreement and no waiver by MP of any particular default by the Purchaser shall affect or prejudice MP’s rights in respect of any subsequent default and no indulgence or forbearance by MP of its rights under this Agreement shall adversely affect or prejudice its rights in relation to such default or any subsequent default.
- 11. Force Majeure
11.1 A Force Majeure event means anything outside the reasonable control of MP.
11.2 If MP is wholly or partially unable to perform its obligations because of a Force Majeure event, then:
(a) As soon as reasonably practicable after the Force Majeure event arises, MP will notify the Purchaser of the extent to which MP is unable to perform its obligations; and
(b) MP’s obligation to perform will be suspended for the duration of the delay arising out of the Force Majeure event.
- 12. Applicable Law
12.1 The parties expressly agree that this Agreement will be governed by and interpreted in accordance with the laws of the State of New South Wales.
- 13. Purchaser’s Warranties
13.1 The Purchaser warrants that:
(a) In the case of a natural person, he/she has never been a bankrupt or entered into a deed of arrangement or compromise or any other arrangement under Part X of the Bankruptcy Act or otherwise assigned his/her assets for the benefit of creditors.
(b) It has never been under external administration or subject to the appointment of an external receiver or controller or entered into a deed of company arrangement and that it is solvent and able to pay its debts as and when they fall due.
(c) It is not executing this Agreement as a result of or by reason of or in reliance upon any promise, representation, statement or information of any kind whatever given or offered to them by or on behalf of MP whether in answer to an enquiry or otherwise.
(d) Prior to the placement of any order or booking, they have made their own independent enquiries and satisfied themselves as to the size, design, capacity, quality and fitness for purpose of the goods and/or services and, to the extent permitted by law, they do not rely on any warranty, promise or representation in relation to the goods and/or services, their state, quality or fitness for purpose unless expressly set out in this Agreement.
- 14. MP Relies on Purchaser’s Warranties
14.1 In entering into this Agreement, MP relies upon the warranties provided above and upon any information supplied by the Purchaser in an accompanying credit account application.
14.2 MP relies upon the representation that the person signing this Agreement has authority to execute it on behalf of the Purchaser.
15.1 The Purchaser consents to MP from time to time, seeking, advising, exchanging and verifying any personal or commercial information of the Purchaser with any third party and to carrying out any further pertinent investigation about the Purchaser’s contact/address details, credit arrangements, trading terms, credit worthiness, credit standing, credit history or credit capacity, financial status etc (personal information). MP may otherwise use personal information to contact the Purchaser about transactions with MP, to identify orders and to provide regular newsletters.
15.2 MP does not otherwise pass on/sell/swap any personal information.
- 16. Goods and Services Tax (GST)
16.1 All amounts payable by the Purchaser under this Agreement are exclusive of GST. If GST is payable on any supply made by a party under or in connection with this Agreement, the consideration provided (or to be provided) for that supply will be increased by an amount equal to the GST liability properly incurred by the party making the supply and paid at the same time and in the same manner as the consideration.
- 17. Credit Limit
17.1 Notwithstanding any other provision in these terms, MP may grant credit to the Purchaser under these terms either unconditionally or with any condition it sees fit, including, without limitation, a cap on the amount of credit MP is comfortable extending to the Purchaser. MP may increase or decrease any such cap as it sees fit from time to time throughout the duration of these terms by notice to the Purchaser in writing
17.2 If a credit limit is set and then exceeded by MP, such excess will not be a breach of this Agreement by MP.
17.3 In the event that MP serves notice in accordance with clause 18.1 then, apart from any extension, increase or reduction set out in the notice, this Agreement and any supporting guarantee will continue to operate in its amended form.
17.4 However, should MP decide to extend beyond the credit cap in place from time to time, then the cap will in no way act to limit the ability or right of MP to recover any monies owing to it nor will such cap act to limit the liability of the Purchaser or to pay those monies to MP.