Terms and Conditions of Engagement
- “TALBOT’S” shall mean Talbot’s Services Pty Limited, its successors and assigns or any person acting on behalf of and with the authority of Talbot’s Services Pty Ltd.
- “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, estimate, contract, invoice, document, work authorisation or other form as provided by TALBOT’S to the Client If there is more than one client, then it is a reference to each Client jointly and severally.
- “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
- “Goods” shall mean Goods supplied by TALBOT’S to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on any quotation, estimate, contract, invoice, document, work authorisation or other form as provided by TALBOT’S to the Client.
- “Services” shall mean all Services supplied by TALBOT’S, or any person acting on behalf of and with the authority of DANNY TALBOT, to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
- “Price” shall mean the price payable for the Goods and Services as agreed between TALBOT’S and the Client in accordance with clause 5 of these terms.
- The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
- Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
- Any instructions received by TALBOT’S from the Client for the supply and goods and services and/or the clients acceptance of goods and services supplied by TALBOT’S shall constitute acceptance of the terms and conditions contained herein.
- The Client is taken to have exclusively accepted and is immediately bound by these terms and conditions once the customer places an order or accepts and delivery of works.
- Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
- Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of TALBOT’S.
- Goods and services are supplied by TALBOT’S only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
- Change of Client and details
- The Client shall give TALBOT’S not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address and contact numbers). The Client shall be liable for any loss incurred by TALBOT’S as a result of the Client’s failure to comply with this clause.
- Price and Payment
- At TALBOT’S sole discretion the price shall be either:
- as indicated on invoices provided by TALBOT’S to the Client in respect of the goods and services supplied; or
- TALBOT’S quoted Price (subject to clause 5.b) which shall be binding upon TALBOT’S provided that the Client shall accept TALBOT’S quotation in writing within thirty (30) days.
- TALBOT’S reserves the right to change the Price in the event of a variation to TALBOT’s quotation, including, but not limited to:
- Any variation from the plan of scheduled works or specifications, including, any variation as a result of increases to TALBOT’S in the cost of materials and labour,
- A requested variation to the materials which have been supplied,
- At TALBOT’S sole discretion the price shall be either:
- A variation to the works originally scheduled (including any applicable plans or specifications) is requested, or
- Additional works are required due to unidentifiable or undisclosed conditions which are only evident on commencement of work, including but not limited to, poor weather conditions, limitations to site access, pre requisite work by any third party not being completed, hidden pipes or wiring, compliance with building codes.
- These variations will be charged for on the basis of TALBOT’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
- At TALBOT’s sole discretion a non-refundable deposit may be required prior to commencement of the works. This deposit is 10% of the total quoted value of the work.
- At TALBOT’s sole discretion:
- payment shall be due on delivery of the goods and services; or
- payment for approved Clients shall be made by instalments in accordance with TALBOT’s payment schedule.
- Time for payment for the goods and services will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice issued to the Client by TALBOT’S.
- Payment will be made by EFT or by any other method as agreed to between the Client and TALBOT’S.
- 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. Unless otherwise stated the Price does not include GST.
- Delivery Of Goods and Services
- TALBOT’S agree to make reasonable efforts to commence delivery of goods and services on the agreed date.
- The commencement date for the delivery of goods and services will be delayed or the completion date extended in the event that TALBOT’S claims an extension of time from the Client by providing the client with written notice, where the delay is as a result of an event outside TALBOT’s control, including any failure by the Client to:
- to make a selection, or
- have the site ready for the works, or
- notify TALBOT’S that site is ready.
- Delivery of the Goods and services shall take place when the Client takes possession of the Goods and services at the Client’s nominated address (in the event that the Goods and services are delivered by TALBOT’S or TALBOT’s nominated carrier) even if the Client is not present at the address.
- At TALBOT’s sole discretion the costs of delivery are:
- included in the Price; or
- in addition to the Price; or
- for the Client’s account.
- In the event that the Client is unable to take delivery of the goods and services as arranged, then TALBOT’S shall be entitled to charge a redelivery and/or storage fee.
- Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
- The failure of TALBOT’S to deliver shall not entitle either party to treat this contract as repudiated.
- TALBOT’S shall not be liable for any loss or damage whatsoever due to failure by TALBOT’S to deliver the Goods and Services (or any of them) promptly or at all, where due to circumstances beyond the control of TALBOT’S.
- If TALBOT’S retains ownership of the Goods and Services (under Clause 10, Title) nonetheless, all risk for the Goods passes to the Client on delivery.
- If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, TALBOT’S is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by TALBOT’S is sufficient evidence of TALBOT’s rights to receive the insurance proceeds without the need for any person dealing with DANNY TALBOT to make further enquiries.
- Where the Client expressly requests TALBOT’S to leave Goods for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
- The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. TALBOT’S will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
- Client Responsibilities
- It is the intention of TALBOT’S and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding to enable the works to be undertaken (where in TALBOT’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.
- The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the works and agrees that TALBOT’S shall not be liable for any damage caused to those items through the Clients failure to comply with this clause.
- The Client shall ensure that TALBOT’S has clear and free access to the worksite (during all hours allowed by relevant statutory authorities) in order for TALBOT’S to complete the works. TALBOT’S shall not be liable for any loss or damage to the site, including damage to pathways, driveways, concreted, paved or grassed areas) unless due to the negligence of TALBOT’S.
- Disclosure of all known risks.
- Underground Locations
- Prior to TALBOT’S commencing any work the Client must advise TALBOT’S of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
- Whilst TALBOT’S will take all care to avoid damage to any underground services the Client agrees to indemnify TALBOT’S in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 9a.
- TALBOT’S and the Client agree that ownership of the Goods and services shall not pass until:
- the Client has paid TALBOT’S all amounts owing for the particular Goods and services; and
- the Client has met all other obligations due by the Client to TALBOT’S in respect of all contracts between TALBOT’S and the Client.
- Receipt by TALBOT’S 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 TALBOT’s ownership or rights in respect of the Goods shall continue.
- It is further agreed that:
- Until ownership of the goods passes to the Client in accordance with clause 10a that the Client is only a bailee of the goods and unless the goods have become fixtures must return them goods to TALBOT’S on request.
- The Client holds the benefit of the Client’s insurance of the goods on trust for TALBOT’S and must pay to TALBOT’S the proceeds of any insurance the event of the goods being lost, damaged or destroyed. The production of these terms and conditions by TALBOT’S shall be sufficient evidence of TALBOT’S rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with TALBOT’S to make further enquiries.
- TALBOT’S and the Client agree that ownership of the Goods and services shall not pass until:
- The client must not sell, dispose, or otherwise part with possession of the goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the goods then the Client must hold the proceeds of any such act on trust for TALBOT’S and must pay or deliver the proceeds to TALBOT’S on demand.
- The Client should not convert or process the goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of TALBOT’S and must sell, dispose of or return the resulting product to TALBOT’S as it so directs.
- Unless the goods have become fixtures the Client irrevocably authorises TALBOT’S to enter any premises where TALBOT’S believes the goods are kept and recover possession of the goods.
- TALBOT’S may recover possession of any goods in transit whether or not delivery has occurred.
- The Client shall not charge or grant an encumbrance[?] over the goods not grant nor otherwise give away an interest in the goods while they remain the property of TALBOT’S.
- TALBOT’S may commence proceedings to recover the price of goods sold notwithstanding that ownership of the goods has not passed to the Client.
- where practicable the Goods shall be kept separate and identifiable until TALBOT’S shall have received payment and all other obligations of the Client are met; and
- until such time as ownership of the Goods shall pass from TALBOT’S to the Client TALBOT’S may give notice in writing to the Client to return the Goods or any of them to TALBOT’S. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
- TALBOT’S shall have the right of stopping the Goods in transit whether or not delivery has been made; and
- if the Client fails to return the Goods to TALBOT’S then TALBOT’S or TALBOT’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
- the Client is only a bailee of the Goods and until such time as TALBOT’S has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to TALBOT’S for the Goods, on trust for TALBOT’S; and
- the Client shall not deal with the money of TALBOT’S in any way which may be adverse to TALBOT’S; and
- the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of TALBOT’S; and
- TALBOT’S can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
- until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that TALBOT’S will be the owner of the end products.
- Personal Property Securities Act 2009 (“PPSA”)
10.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify TALBOT’S of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford TALBOT’S an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which TALBOT’S has agreed in writing that the Client is entitled to reject, TALBOT’s liability is limited to either (at TALBOT’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
10.2 Goods will not be accepted for return other than in accordance with 10.1 above.
11.1 For Goods not manufactured by TALBOT’S, the warranty shall be the current warranty provided by the manufacturer of the Goods. TALBOT’S shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
11.2 To the extent permitted by statute, no warranty is given by TALBOT’S as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. TALBOT’S shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
12. Intellectual Property
12.1 Where TALBOT’S has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in TALBOT’S, and shall only be used by the Client at TALBOT’s discretion.
12.2 The Client warrants that all designs or instructions to TALBOT’S will not cause TALBOT’S to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify TALBOT’S against any action taken by a third party against TALBOT’S in respect of any such infringement.
12.3 The Client hereby authorises TALBOT’S to utilise images of the Goods designed or drawn by TALBOT’S in advertising, marketing, or competition material by TALBOT’S.
13. Default & Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at TALBOT’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by TALBOT’S.
13.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify TALBOT’S from and against all costs and disbursements incurred by TALBOT’S in pursuing the debt including legal costs on a solicitor and own client basis and TALBOT’s collection agency costs.
13.4 Without prejudice to any other remedies TALBOT’S may have, if at any time the Client is in breach of any obligation (including those relating to payment), TALBOT’S may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. TALBOT’S will not be liable to the Client for any loss or damage the Client suffers because TALBOT’S has exercised its rights under this clause.
13.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
13.6 Without prejudice to TALBOT’s other remedies at law TALBOT’S shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to TALBOT’S shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to TALBOT’S becomes overdue, or in TALBOT’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which TALBOT’S may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client 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 TALBOT’S or TALBOT’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that TALBOT’S (or TALBOT’s 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 TALBOT’S elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify TALBOT’S from and against all TALBOT’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint TALBOT’S or TALBOT’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15. Compliance with Laws
15.1 The Client and TALBOT’S shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
15.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the works.
15.3 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
16. Dispute Resolution
16.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
17.1 TALBOT’S may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice TALBOT’S shall repay to the Client any sums paid in respect of the Price. TALBOT’S shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by TALBOT’S (including, but not limited to, any loss of profits) up to the time of cancellation.
17.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
18. Privacy Act 1988
18.1 The Client and/or the Guarantor/s agree for TALBOT’S to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by TALBOT’S.
18.2 The Client and/or the Guarantor/s agree that TALBOT’S may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
18.3 The Client consents to TALBOT’S being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
18.4 The Client agrees that personal credit information provided may be used and retained by TALBOT’S for the following purposes and for other purposes as shall be agreed between the Client and TALBOT’S or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by TALBOT’S, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
18.5 TALBOT’S may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
19. Building and Construction Industry Security of Payments Act 1999
19.1 At TALBOT’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
19.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
20.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
20.3 TALBOT’S shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by TALBOT’S of these terms and conditions.
20.4 In the event of any breach of this contract by TALBOT’S the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
20.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by TALBOT’S nor to withhold payment of any invoice because part of that invoice is in dispute.
20.6 TALBOT’S may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.7 The Client agrees that TALBOT’S may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which TALBOT’S notifies the Client of such change.
20.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
20.9 The failure by TALBOT’S to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect TALBOT’s right to subsequently enforce that provision.